United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Nashville, TN, Employer 

__________________________________________ 

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Docket No. 17-0104 

Issued: July 17, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On October 21, 2016 appellant filed a timely appeal from an October 4, 2016 merit 

decision and a June 30, 2016 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant received a $2,859.01 overpayment of compensation 

for the period June 19 through August 7, 2015; (2) whether OWCP abused its discretion in 

denying waiver of recovery of the overpayment; and (3) whether OWCP properly determined 

that appellant had abandoned her request for a prerecoupment hearing. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

OWCP accepted that on May 4, 2015 appellant, then a 28-year-old city carrier assistant, 

sustained a lumbar sprain when her work vehicle was struck from behind. She stopped work on 

the date of injury and received wage-loss compensation and medical benefits. Appellant 

returned to modified duty on July 11, 2015 working in a part-time capacity.2

 

On July 21, 2015 appellant filed a claim for compensation (Form CA-7) for leave without 

pay for the period June 19 through July 10, 2015. Her time analysis form (Form CA-7a) 

indicated 16 days of wage-loss compensation amounting to 6 hours of leave for each full day 

worked. Appellant also filed CA-7 forms for the period July 11 through August 7, 2015 for 

intermittent wage loss. 

On August 25, 2015 the employing establishment clarified that appellant was a 

temporary, part-time employee and that she had been employed for less than 11 months during 

the previous year. It submitted further information which indicated that, as a part-time employee 

appellant received $15.68 per hour as a city carrier assistant, worked five days per week, and 

averaged 32 hours weekly as she was on a rotating or irregular schedule. 

In a September 10, 2015 initial payment memorandum, appellant was reported as 

working an average of 6.4 hours per day, 5 days per week, resulting in 32 hours of work weekly. 

Appellant’s hourly rate at $15.68 was multiplied by 6.4 hours to calculate a daily rate of 

$100.35.3

 The daily rate was multiplied by 260 to determine average annual earnings pursuant to 

5 U.S.C. § 8114(d)(1)(B), then divided by 52 to calculate a new weekly pay rate of $501.76.4

 

On October 13, 2015 OWCP issued a preliminary determination that appellant received 

an overpayment of compensation in the amount of $2,859.01 for the period June 19 through 

August 7, 2015 because she was paid at an incorrect pay rate. It found that she was not at fault 

in the creation of the overpayment, making her eligible for waiver of recovery of the 

overpayment. OWCP explained that when appellant initially filed the July 21, 2015 claim for 

wage loss, her pay had been based on a temporary pay rate while her true pay rate was being 

developed. It noted that her pay rate was corrected once it had received information and 

calculated the rate of $501.76 weekly. Appellant’s average work hours were 6.4 hours per day, 5 

days per week. OWCP explained that from June 19 through July 10, 2015, appellant received 

 2

 On March 24, 2016 OWCP notified appellant of a proposal to terminate her wage-loss compensation benefits 

based on the report of her attending physician which found no further disability connected to the employment injury. 

By decision dated April 28, 2016, it terminated her wage-loss compensation benefits finding that the weight of the 

medical evidence established that she was no longer disabled from work as a result of the May 4, 2015 work injury. 

OWCP noted that appellant’s medical benefits were not terminated and would remain open if treatment was needed 

for the accepted condition. 

3

 OWCP had originally been provided payroll information reflecting an average daily wage rate of $100.35. 

Using 5 U.S.C. § 8114(d)(3), it calculated the weekly pay rate at $289.47 for an average of 32 hours a week. 

4

 The average annual earnings are the product obtained by multiplying her daily wage for the particular 

employment or the average thereof if the daily wage has fluctuated, by 300 if she was employed on the basis of a 6-

day workweek, 280 if employed on the basis of a 51⁄2-day workweek, and 260 if employed on the basis of a 5-day 

workweek. 5 U.S.C. § 8114(d). 
3

$926.34 for 16 days of leave when she should have received $1,204.22.5

 For the period July 11 

through 24, 2015, appellant received payment in the amount of $2,026.36 for 44.8 hours of 

leave; however, she should have only received pay for this period in the amount of $362.21 for 

30.8 hours of leave at $15.68 an hour and 75 percent compensation rate. From July 25 through 

August 7, 2015, appellant had received $1,990.18 for 44 hours of leave when she should have 

received $517.44 for those 44 hours (44 hours times $15.68 an hour times 75 percent). It 

concluded that for the period June 19 through August 7, 2015, appellant was paid $4,942.88 

when she should have been paid $2,083.87, resulting in a $2,859.01 overpayment. 

OWCP provided appellant with an overpayment recovery questionnaire (Form OWCP20) and advised that she could request a prerecoupment hearing if she wished to challenge the 

fact of overpayment or to request waiver of recovery of the overpayment. If she claimed a 

waiver of recovery, she was advised to submit supporting financial information and a completed 

overpayment recovery questionnaire within 30 days. 

On October 20, 2015 appellant requested a prerecoupment hearing arguing that the 

overpayment should be waived because it occurred through no fault of her own. She reported 

that she had submitted the CA-7 and CA-7a forms on time and her manager was to file the 

remaining information. Appellant contended that she had never been told of any overpayment. 

She submitted a completed overpayment recovery questionnaire indicating that she had two 

dependent children, a monthly income of $217.00 from earnings, monthly expenses of $810.59, 

and $187.00 in her bank account. No supporting financial documentation was submitted. 

In a May 12, 2016 notice, OWCP’s Branch of Hearings and Review scheduled a 

prerecoupment hearing for 9:30 a.m. Eastern Standard Time (EST) on June 14, 2016. It 

provided appellant with a toll-free number and passcode for the telephone hearing. OWCP 

advised appellant that postponement of the hearing would only be permitted upon receipt of 

documentation showing her nonelective hospitalization or that the death of a spouse, parent, or 

child prevented her attendance. The notice was mailed to appellant’s address of record. 

On June 14, 2016 appellant failed to participate in the telephone prerecoupment hearing. 

By decision dated June 30, 2016, an OWCP hearing representative found that appellant 

failed to appear at the prerecoupment hearing and had therefore abandoned her request. The 

hearing representative found no evidence of record establishing that appellant had contacted 

OWCP prior to or subsequent to the scheduled hearing. 

By decision dated October 4, 2016, OWCP finalized its preliminary overpayment 

decision. It found that appellant had received an overpayment of compensation in the amount of 

$2,859.01 for the period June 19 through August 7, 2015. It further found that she was not at 

fault in the creation of the overpayment. OWCP determined that the overpayment was not 

subject to waiver of recovery, however, because appellant had failed to submit the requested 

financial information to support the figures provided in her OWCP-20 form. Thus, there was no 

evidence of record that recovery of the overpayment would defeat the purpose of FECA or be 

 5

 As appellant had dependents, her compensation rate was at 75 percent. ($100.35 @ day times 16 days equals 

$1,605.60 times 75 percent equals $1,204.22). 
4

against equity and good conscience. OWCP requested repayment be made in full within 30 

days. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability or death of an employee resulting from personal injury sustained while in the 

performance of his duty.6

 Section 8129(a) of FECA provides, in pertinent part: When an 

overpayment has been made to an individual under this subchapter because of an error of fact or 

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by 

decreasing later payments to which an individual is entitled.7

An employee is paid compensation for total disability equal to a percentage of his or her 

monthly pay.8

 To calculate monthly pay, the initial issue is the determination of the specific time 

when the employee’s monthly pay will be calculated. Under 5 U.S.C. § 8101(4), the monthly 

pay is determined at the time of injury, the time disability begins, or the time compensable 

disability recurs, if the recurrence begins more than six months after a return to regular full-time 

employment.9

Once the proper time period is determined, the pay rate is determined under 5 U.S.C. 

§ 8114(d). This section provides a specific methodology for determining pay rate: 

(1) If the employee worked in the employment in which she was employed at the 

time of her injury during substantially the whole year immediately preceding the 

injury and the employment was in a position for which an annual rate of pay-- 

(A) was fixed, the average annual earnings are the annual rate of pay; or 

(B) was not fixed, the average annual earnings are the product obtained by 

multiplying his daily wage for particular employment, or the average 

thereof if the daily wage has fluctuated, by 300 if she was employed on 

the basis of a 6-day workweek, 280 if employed on the basis of a 5 1/2-

day week, and 260 if employed on the basis of a 5-day week. 

(2) If the employee did not work in employment in which she was employed at 

the time of her injury during substantially the whole year immediately preceding 

the injury, but the position was one which would have afforded employment for 

substantially a whole year, the average annual earnings are a sum equal to the 

average annual earnings of an employee of the same class working substantially 

the whole immediately preceding year in the same or similar employment by the 

 6

 5 U.S.C. § 8102(a). 

7 Id. at § 8129(a). 

8 Id. at § 8106(c). 

9 Id. at § 8101(4). 
5

United States in the same or neighboring place, as determined under paragraph 

(1) of this subsection. 

(3) If either of the foregoing methods of determining the average annual earnings 

cannot be applied reasonably and fairly, the average annual earnings are a sum 

that reasonably represents the annual earning capacity of the injured employee in 

the employment in which she was working at the time of the injury having regard 

to the previous earnings of the employee in federal employment, and of other 

employees of the United States in the same or most similar employment in the 

same or neighboring location, other previous employment of the employee, or 

other relevant factors. However, the average annual earnings may not be less than 

150 times the average daily wage the employee earned in the employment during 

the days employed within one year immediately preceding her injury. 

ANALYSIS -- ISSUE 1 

The Board finds that appellant received an overpayment of compensation in the amount 

of $2,859.01 for the period June 19 through August 7, 2015. 

Appellant was employed as a city carrier assistant, in a part-time, temporary position. 

She had not worked in this position for 11 months prior to injury. Pursuant to 5 U.S.C. 

§ 8114(d) since appellant had not worked in the employment in which she was employed at the 

time of injury during substantially the whole year prior to the injury, but the employing 

establishment did not dispute that the position was one which would have afforded employment 

for substantially a whole year, pursuant to 5 U.S.C. § 8114(d)(2) the pay rate calculation 

properly reverted back to 5 U.S.C. § 8114(d)(1). As appellant’s annual earnings were not fixed, 

and she was employed on the basis of a 5-day week, OWCP utilized the daily rate multiplier of 

260 under 5 U.S.C. § 8114(d)(1)(B).10 

OWCP determined that she worked on average 6.4 hours daily, 5 times per week. Based 

on her hourly rate of $15.68, OWCP properly determined that appellant’s average daily wage 

amounted to $100.35. Appellant’s average annual earnings were calculated by multiplying her 

daily wage by 260, as she was employed on the basis of a 5-day week, which was then divided 

by 52 to calculate a weekly pay rate of $501.76.11 

 10 See T.M., Docket No. 15-149 (March 9, 2015) wherein the Board explained that the evidence from the 

employing establishment confirmed that the claimant had not worked in her position for substantially one whole 

year prior to the date of injury on September 7, 2013. Therefore the next step under 5 U.S.C. § 8114(d) was to 

determine if the position was one which would have afforded employment for substantially a whole year. As noted 

above, if the position would have afforded employment for substantially the whole year, then the pay rate is the 

earnings of a claimant of the same class working substantially the whole immediately preceding year in the same or 

similar employment by the United States in the same or neighboring place. OWCP applied 5 U.S.C. § 8114(d)(3), 

which required that the pay rate be no less than 150 times the average daily wage. This section was only to be used 

if 5 U.S.C. § 8114(d)(2) could not be applied reasonably and fairly. In the current case, OWCP originally had used 

5 U.S.C. § 8114(d)(3). It later determined that 5 U.S.C. § 8114(d)(1)(B) was the proper method. 

11 5 U.S.C. § 8114(d). 
6

For the period June 19 through July 10, 2015, appellant’s pay rate had been based on an 

incorrect rate of pay and she received $926.34 for 16 days of wage loss. She should have 

received $1,204.22 for the 16 days of wage loss at the daily rate of $100.35 (times 75 percent). 

With respect to the period July 11 through 24, 2015, appellant was incorrectly paid 

$2,026.36. Based on the Form CA-7a, she worked a total of seven days for two hours on each 

day. As she typically worked 6.4 hours daily, appellant was entitled to leave without pay for the 

remaining 4.4 hours of each day worked. Thus, OWCP properly determined that she was only 

entitled to 30.8 hours for the 7 days, resulting in $362.21 of wage-loss compensation for the 

period July 11 through 24, 2015 at the hourly rate of $15.68 (times 75 percent). 

For the period July 25 through August 7, 2015, appellant was paid $1,990.18, but, based 

on the hourly pay rate of $15.68 for 44 hours of leave without pay (times 75 percent), OWCP 

properly determined that appellant was entitled to $517.44 for the period July 25 through 

August 7, 2015. 

The Board finds that OWCP properly found that appellant should have received 

$2,083.87 for the period June 19 to August 7, 2015 rather than the $4,942.88 she received.12 

Appellant has not submitted any evidence disputing the fact and amount of the overpayment. 

The Board will therefore affirm OWCP’s finding of an overpayment of compensation in the 

amount of $2,859.01.13

LEGAL PRECEDENT -- ISSUE 2 

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter 

that rests within OWCP’s discretion pursuant to statutory guidelines.14 These statutory 

guidelines are found in section 8129(b) of FECA which states: Adjustment or recovery of an 

overpayment by the United States may not be made when incorrect payment has been made to an 

individual who is without fault and when adjustment or recovery would defeat the purpose of 

this subchapter or would be against equity and good conscience.15 If OWCP finds a claimant to 

be without fault in the matter of an overpayment, then, in accordance with section 8129(b), 

OWCP may only recover the overpayment if it determined that recovery of the overpayment 

would neither defeat the purpose of FECA nor be against equity and good conscience. 

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose 

of FECA if recovery would cause hardship because the beneficiary needs substantially all of her 

income (including compensation benefits) to meet current ordinary and necessary living 

expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by 

 12 $4,942.88 - $2,083.87 = $2,859.01. See L.M., Docket No. 16-0144 (issued March 22, 2016). 

13 B.A., Docket No. 15-1171 (issued December 21, 2015). 

14 See Robert Atchison, 41 ECAB 83, 87 (1989). 

15 5 U.S.C. § 8129(b). 
7

OWCP from data provided by the Bureau of Labor Statistics.16 According to 20 C.F.R. 

§ 10.437, recovery of an overpayment is considered to be against equity and good conscience 

when an individual who received an overpayment would experience severe financial hardship 

attempting to repay the debt and when an individual, in reliance on such payments or on notice 

that such payments would be made, gives up a valuable right or changes his position for the 

worse.17 To establish that a valuable right has been relinquished, it must be shown that the right 

was in fact valuable, that it cannot be regained, and that the action was based chiefly or solely in 

reliance on the payments or on the notice of payment.18

Section 10.438 of OWCP’s regulations provide that the individual who received the 

overpayment is responsible for providing information about income, expenses, and assets as 

specified by OWCP. This information is needed to determine whether or not recovery of an 

overpayment would defeat the purpose of FECA or be against equity and good conscience. This 

information will also be used to determine the repayment schedule, if necessary. Failure to 

submit the requested information within 30 days of the request shall result in denial of waiver, 

and no further request for waiver shall be considered until the requested information is 

furnished.19

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly denied waiver of recovery of the overpayment of 

compensation.20

As appellant was found to be without fault in the creation of the overpayment in 

compensation, waiver must therefore be considered, and repayment is still required unless 

adjustment or recovery of the overpayment would defeat the purpose of FECA or be against 

equity and good conscience. 

In its preliminary notice of overpayment dated October 13, 2015, OWCP requested that 

appellant provide supporting financial information and a completed overpayment recovery 

questionnaire. While she submitted the overpayment recovery questionnaire, appellant failed to 

submit any financial information outlining her income, expenses, and assets for OWCP to 

determine whether waiver of the overpayments was appropriate. Further, she made no argument 

that she gave up a valuable right or changed her position for the worse in reliance on the 

 16 20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current 

and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio 

Martinez, 55 ECAB 245 (2004). OWCP procedures provide that assets must not exceed a resource base of 

$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each 

additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, 

Chapter 6.200.6(a) (June 2009). 

17 Id. at § 10.437(a), (b). 

18 Id. at § 10.437(b)(1). 

19 Id. at § 10.438. 

20 R.H., Docket No. 15-0392 (issued February 3, 2016). 
8

overpaid compensation prior to the issuance of OWCP’s October 4, 2016 decision. As appellant 

failed to submit complete financial information, the evidence before OWCP was insufficient to 

determine whether recovery of the overpayment would defeat the purpose of FECA or would be 

against equity or good conscience.21 Accordingly, as required by section 10.438 of its 

regulations, appellant was not entitled to a waiver.22 The Board therefore finds that OWCP 

properly denied waiver of recovery of the overpayment of compensation in the amount of 

$2,859.01.23

On appeal, appellant argues that she did not know she was being overpaid and should not 

be responsible for repayment caused by someone else’s mistake. Although OWCP found that 

appellant was without fault in the matter of the overpayment, repayment is still required unless 

adjustment or recovery of the overpayment would defeat the purpose of FECA or be against 

equity and good conscience.24

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is 

limited to reviewing those cases where OWCP seeks recovery from continuing compensation 

benefits under FECA.25 As appellant is no longer receiving wage-loss compensation, the Board 

does not have jurisdiction with respect to the recovery of the overpayment under the Debt 

Collection Act.26

LEGAL PRECEDENT -- ISSUE 3 

Section 10.622(f) of OWCP’s regulations and Chapter 2.1601.6(g) of OWCP’s 

procedures provide that failure of appellant to appear at the scheduled hearing, failure to request 

a postponement, and failure to request a new hearing in writing within 10 days after the date of 

the scheduled hearing shall constitute abandonment of the request for a hearing.27 Under these 

circumstances, the Branch of Hearings and Review will issue a formal decision finding that the 

claimant has abandoned her request for a hearing and return the case to the district office. In 

cases involving prerecoupment hearings, the Branch of Hearings and Review will also issue a 

final decision on the overpayment, based on the available evidence, before returning the case to 

the district office.28

 21 20 C.F.R. § 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing 

financial information). 

22 J.V., Docket No. 15-0140 (issued November 25, 2015).

23 M.S., Docket No. 11-96 (issued August 17, 2011). 

24 See Wade Baker, 54 ECAB 198 (2002). 

25 Cheryl Thomas, 55 ECAB 610 (2004). 

26 Id. 

27 20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the 

Written Record, Chapter 2.1601.6(g) (October 2011). 

28 Id. 
9

ANALYSIS -- ISSUE 3 

In a letter dated May 12, 2016, OWCP advised appellant of a scheduled telephonic 

prerecoupment hearing with the hearing representative at a specific time on June 14, 2016. The 

evidence establishes that it mailed appropriate notice to appellant at her last known address. The 

record also reveals that appellant failed to request postponement, failed to appear for the 

scheduled hearing, and failed to provide any notification for such failure within 10 days of the 

scheduled date of the hearing. As this meets the condition for abandonment of a hearing as 

specified by OWCP’s regulations and procedure manual, the Board finds that OWCP properly 

found that appellant abandoned her request for a prerecoupment hearing before an OWCP 

hearing representative and properly issued a final decision on the overpayment of 

compensation.29

CONCLUSION 

The Board finds that appellant received a $2,859.01 overpayment of compensation for the 

period June 19 through August 7, 2015. The Board further finds that OWCP properly denied 

waiver of recovery of the overpayment and properly determined that appellant abandoned her 

request for a prerecoupment hearing. 

 29 T.M., Docket No. 15-0147 (issued November 13, 2015); M.G., Docket No. 14-1917 (issued January 22, 2015). 
10

ORDER 

IT IS HEREBY ORDERED THAT the October 4 and June 30, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: July 17, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board