United States Department of Labor

Employees’ Compensation Appeals Board

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S.C., Appellant

and

U.S. POSTAL SERVICE, UNIVERSITY 

STATION, Dallas, TX, Employer

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Docket No. 17-0762

Issued: March 19, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 7, 2017 appellant filed a timely appeal from an August 17, 2016 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal 

Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.3

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from August 17, 2016, the date of OWCP’s last decision was 

February 13, 2017. Since using February 21, 2017, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is February 7, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence after OWCP rendered its August 17, 2016 

decision. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. 

Therefore, the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
2

ISSUES

The issues are: (1) whether OWCP properly denied waiver of recovery of a $13,319.36 

overpayment of compensation; and (2) whether it properly required recovery of the overpayment 

by deducting $200.00 from appellant’s continuing compensation payments.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances outlined in 

the Board’s prior decisions are incorporated herein by reference. The facts relevant to this 

appeal are as follows.

On October 24, 2011 appellant, then a 50-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on September 13, 2011, she twisted her left ankle when 

descending stairs while in the performance of duty. OWCP accepted the claim for left ankle 

sprain and paid compensation for total disability beginning October 29, 2011.

OWCP, on September 25, 2013, informed appellant that it had electronically deposited 

$13,319.36 into her account on November 23, 2012. It advised her that the money was deposited 

in error and requested repayment of the funds.

On October 29, 2013, OWCP notified appellant of its preliminary determination that she 

received an overpayment of compensation in the amount of $13,319.36 because it had 

electronically transferred funds into her bank account in error. Appellant requested a 

prerecoupment hearing. During the prerecoupment hearing, held before an OWCP hearing 

representative on April 17, 2014, she testified that her husband told her he was waiting on a 

payment for work and that she learned that the deposit was inaccurate when she received 

OWCP’s September 2013 letter.

In response to OWCP’s request for information about her dependency status, appellant 

indicated that her husband was self-employed and installed electrical equipment. She submitted 

information regarding her income and expenses.5 

By decision dated June 19, 2014, OWCP’s hearing representative determined that 

appellant received an overpayment of compensation in the amount of $13,319.36 on 

November 23, 2012 because OWCP had electronically deposited money into her account in 

error. She found that appellant was at fault in the creation of the overpayment because she 

accepted a payment that she knew or should have known was incorrect. The hearing 

representative found that the overpayment should be recovered by deducting $200.00 from 

continuing compensation payments.

 

4 Docket No. 14-1730 (issued April 13, 2015); Docket No. 16-0443 (issued May 3, 2016).

5

In a hardship affidavit form, appellant requested mortgage modification because of short-term hardship. She 

indicated that her husband’s Social Security benefits had “been temporarily suspended” and that she had home 

repairs, including replacing a furnace and the main sewer lines.
3

Appellant appealed to the Board. By decision dated April 13, 2015, the Board affirmed 

in part and set aside in part the June 19, 2014 decision.6 It found that appellant received a

$13,319.36 overpayment as OWCP had mistakenly electronically transferred compensation 

owed to another claimant into her bank account. The Board determined, however, that she was 

not at fault in the creation of the overpayment and remanded the case for OWCP to consider 

whether she was entitled to waiver of recovery of the overpayment based on current financial 

information.

OWCP, on June 15, 2015, requested that appellant submit an overpayment recovery 

questionnaire with supporting documentation so that it could evaluate whether she was entitled 

to waiver of recovery of the overpayment. It did not provide a deadline for submission of the 

information.

By decision dated August 10, 2015, OWCP denied waiver of recovery of the $13,319.36 

overpayment of compensation. It found that appellant had not responded to its request for 

current financial information. OWCP determined that it would recover the overpayment by 

deducting $200.00 from her continuing compensation payments.

Appellant again appealed to the Board. By decision dated May 3, 2016, the Board set 

aside the August 10, 2015 decision.7 It found that OWCP failed to inform her that she must 

submit any evidence or argument in support of waiver of recovery within 30 days. The Board 

remanded the case for OWCP to provide appellant with an overpayment recovery questionnaire 

(Form OWCP-20) with notice of the 30-day time limitation prior to determining whether she is 

entitled to waiver of recovery of the overpayment. 

On June 9, 2016 OWCP again requested that appellant submit a completed overpayment 

recovery questionnaire within 30 days with supporting documentation so that it could evaluate 

whether she was entitled to waiver of recovery of the overpayment.

On her completed Form OWCP-20, June 21, 2016, appellant listed that she had no 

income from any source. She identified her husband as a dependent. Appellant related that she

had assets in the Thrift Savings Plan (TSP), but did not specify an amount. She listed total 

expenses of $3,398.00. Appellant also noted other unpaid loans. As documentation, she 

submitted benefit statements showing the compensation she received from OWCP, bank account 

statements in her name, credit card and utility bills, her mortgage bill, loan extensions, a letter 

from the Internal Revenue Service about her unpaid balance on taxes, a settlement offer from 

Dish television regarding an unpaid balance, letters from collection services, and a March 25, 

2016 letter from the Office of Personnel Management approving her application for disability 

retirement. 

By decision dated August 17, 2016, OWCP denied waiver of recovery of the 

overpayment. It found that appellant had not submitted adequate information regarding her 

income, her spouse’s income, and her assets in the TSP for it to determine whether she was 

 

6 Docket No. 14-1730 (issued April 13, 2015). 

7 Docket No. 16-0443 (issued May 3, 2016).
4

entitled to waiver. OWCP noted that she substantiated expenses of $2,388.52 and that she 

received $2,777.00 in compensation, for a difference of $388.48. It found that it would recover 

the overpayment by deducting $200.00 from continuing compensation.

On appeal appellant contends that she submitted evidence about her income by providing 

her benefit statements showing her compensation from OWCP. She asserted that her husband 

did not receive any income. Appellant also argues that OWCP erred in finding that she was at 

fault in creating the overpayment.

LEGAL PRECEDENT -- ISSUE 1

Section 8129 of FECA provides that an overpayment must be recovered unless “incorrect 

payment has been made to an individual who is without fault and when adjustment or recovery 

would defeat the purpose of [FECA] or would be against equity and good conscience.”

8

 

(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result 

in waiver of the overpayment. OWCP must then exercise its discretion to determine whether 

recovery of the overpayment would defeat the purpose of FECA or would be against equity and 

good conscience.9

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 his 

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 

OWCP from data provided by the Bureau of Labor Statistics.10 

Section 10.437 provides that 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 her position for the worse.11 

Section 10.438(a) provides that the individual who received the overpayment is

responsible for providing information about income, expenses, and assets as specified by OWCP, 

as 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.12 This information would 

also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that 

 

8 5 U.S.C. § 8129.

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

10 20 C.F.R. § 10.436. 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)(1)(b) (June 2009).

11 20 C.F.R. § 10.437.

12 Id. at § 10.438(a).
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failure to submit the requested information within 30 days of the request shall result in denial of 

waiver.13

ANALYSIS -- ISSUE 1

On prior appeal, by decision dated April 13, 2015, the Board affirmed OWCP’s finding 

that appellant received an overpayment of compensation in the amount of $13,319.36 on 

November 23, 2012 when it mistakenly deposited money into her bank account meant for 

another claimant. It found, however, that she was not at fault in the creation of the overpayment 

and remanded the case for consideration of waiver. In a May 3, 2016 decision, the Board again 

remanded the case for OWCP to evaluate whether appellant was entitled to waiver after finding 

that it did not inform her that the overpayment recovery questionnaire must be submitted within 

30 days. 

On June 9, 2016, OWCP provided appellant with an overpayment recovery questionnaire

and requested that she submit financial information with supporting documentation within 30 

days. In response, appellant submitted a partially completed overpayment recovery 

questionnaire with some financial information. She listed expenses, but did not include 

information on income for herself nor her spouse. Appellant further indicated that she had assets 

in a TSP, but did not provide her amount. Savings in a TSP account are included in the asset 

base.14

As appellant did not submit complete financial information, there was insufficient 

evidence before OWCP to establish that recovery of the overpayment would defeat the purpose 

of FECA or be against equity and good conscience.15 In requesting waiver, the overpayment 

individual has the responsibility for submitting financial information.16 Appellant failed to 

provide the requested information, as required by section 10.438 of its regulations, and thus was 

not entitled to waiver.17 The Board thus finds that OWCP properly denied waiver of recovery of 

the overpayment of compensation.

On appeal appellant asserts that she provided benefit statements documenting her 

compensation from OWCP and that her husband did not receive income. She did not, however, 

submit information regarding her assets in the TSP plan, and thus, as discussed, did not provide 

sufficient evidence to support waiver of recovery of the overpayment. 

Appellant also contends that OWCP erroneously found that she was at fault in creating 

the overpayment. OWCP, however, determined that she was not at fault in creating the 

 

13 Id. at § 10.438(b).

14 See C.P., Docket No. 14-0975 (issued September 11, 2014); R.A., Docket No. 13-1121 (issued 

October 29, 2013).

15 See supra note 12; see also M.S., Docket No. 11-0096 (issued August 17, 2011).

16 See supra note 11; see also A.R., Docket No. 14-1681 (issued March 3, 2016).

17 Id.; see also L.B., Docket No. 09-1327 (issued April 6, 2010).
6

overpayment, but denied waiver. A finding that a claimant is without fault does not 

automatically result in waiver. OWCP must exercise its discretion to determine whether 

recovery of the overpayment would defeat the purpose of FECA or be against equity and good 

conscience.18 As noted, it properly denied waiver of the overpayment after finding that appellant 

had not submitted sufficient evidence to determine whether recovery would defeat the purpose of 

FECA or be against equity and good conscience.19

LEGAL PRECEDENT -- ISSUE 2

Section 10.441(a) of OWCP’s regulations provides that when an overpayment has been 

made to an individual who is entitled to further payments, the individual shall refund to OWCP 

the amount of the overpayment as soon as the error is discovered or her attention is called to the 

same. If no refund is made, OWCP shall decrease later payments of compensation, taking into 

account the probable extent of future payments, the rate of compensation, the financial 

circumstances of the individual, and any other relevant factors, so as to minimize hardship.20

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly determined that the overpayment would be 

recovered by deducting $200.00 from appellant’s continuing compensation payments. As noted, 

appellant failed to submit all the information necessary to properly represent her financial

situation. If appropriate documentation is not submitted as required, OWCP is unable to 

consider financial circumstances.21 The Board notes that OWCP did evaluate the information 

available, and found that appellant’s income from continuing compensation exceeded her 

documented expenses by $388.48. The Board finds that OWCP did not abuse its discretion in 

finding a repayment schedule of $200.00 from continuing compensation.

CONCLUSION

The Board finds that OWCP properly denied waiver of recovery of a $13,319.36 

overpayment of compensation and properly required recovery of the overpayment by deducting 

$200.00 from appellant’s continuing compensation payments.

 

18 See L.S., Docket No. 59 ECAB 350 (2008).

19 See P.W., Docket No. 10-0483 (issued September 15, 2010).

20 Supra note 12 at § 10.441(a); see Steven R. Cofrancesco, 57 ECAB 662 (2006). 

21 See M.S., supra note 15.
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ORDER

IT IS HEREBY ORDERED THAT the August 17, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 19, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board