United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.O., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Atlanta, GA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0076

Issued: August 3, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 12, 2017 appellant filed a timely appeal from an August 15, 2017 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.

ISSUES

The issues are: (1) whether OWCP properly denied waiver of recovery of an overpayment 

of compensation for the period April 23 to May 2, 2015; and (2) whether it properly determined 

that it would recover the overpayment of compensation by withholding $250.00 every 28 days 

from appellant’s continuing compensation payments.

 

1 Appellant timely requested oral argument before the Board. By order dated June 18, 2017, the Board exercised 

its discretion and denied the request as the matter could be adequately adjudicated based on a review of the case record. 

Order Denying Oral Argument, Docket No. 18-0076 (issued June 18, 2018). 

2 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On March 13, 2013 appellant, then a 34-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he injured his right knee while in the 

performance of duty. OWCP accepted the claim for a sprain of the lateral collateral ligament of 

the right knee, a pathologic fracture of other specified parts of the right femur, a tear of the right 

medial meniscus, a right neoplasm of uncertain behavior of the right connective and other soft 

tissue, and chondromalacia patellae of the right knee. It paid appellant compensation for total 

disability beginning April 28, 2014.

Appellant returned to modified work with the employing establishment on April 23, 2015. 

OWCP continued to pay him compensation for total disability on the periodic rolls by electronic 

funds transfer until July 25, 2015. On August 5, 2015 appellant’s vocational rehabilitation 

counselor notified OWCP that he had resumed work on April 23, 2015 as a telephone monitor. 

By decision dated November 2, 2015, OWCP determined that appellant received an 

overpayment of wage-loss compensation in the amount of $8,405.72 from April 23 to July 25, 

2015 because he returned to work, but continued to receive wage-loss compensation. It found that 

he was at fault in the creation of the overpayment and determined that he should submit $250.00 

each month to repay the overpayment. 

Appellant appealed to the Board. By decision dated July 21, 2016, the Board affirmed in 

part and set aside in part the November 2, 2015 decision.4 The Board found that appellant received 

an $8,405.72 overpayment of wage-loss compensation for the period April 23 through July 25, 

2015 and that he was at fault in the creation of the overpayment from May 3 to July 25, 2015. The 

Board determined, however, that he was without fault for the portion of the overpayment created 

from April 23 to May 2, 2015. The Board remanded the case for OWCP to determine whether 

appellant was entitled to waiver of recovery of the overpayment for the period April 23 to 

May 2, 2015.

OWCP paid appellant compensation for total disability on the periodic rolls effective 

August 21, 2016 after the employing establishment withdrew his temporary assignment.

By decision dated August 31, 2016, OWCP denied waiver of recovery of the overpayment 

created for the period April 23 to May 2, 2015. It found that appellant did not submit sufficient 

financial documentation with his 2015 overpayment recovery questionnaire to support waiver of 

recovery of the overpayment. OWCP determined that it would recover the overpayment by 

deducting $250.00 from his continuing compensation payments every 28 days.

 

3 Docket No. 16-0186 (issued July 21, 2016); Docket No. 16-1836 (issued May 23, 2017).

4 Docket No. 16-0186 (issued July 21, 2016).
3

Appellant appealed to the Board. By decision dated May 23, 2017, the Board set aside the 

August 31, 2016 decision.5 The Board found that OWCP should have issued a new preliminary

determination regarding fault with appeal rights and also provided appellant with the opportunity 

to submit current financial information so that it could properly evaluate whether it should waive 

recovery of the overpayment. The Board remanded the case for OWCP to provide him with a new 

preliminary determination of overpayment and overpayment recovery questionnaire. 

On July 7, 2017 OWCP advised appellant of its preliminary determination that he received 

an overpayment of wage-loss compensation in the amount of $5,905.72, or $8,405.72 minus the 

already paid amount of $2,500.00, for the period April 23 through July 25, 2015 because he 

returned to work on April 23, 2015, but received compensation for total disability until 

July 25, 2015. It further informed him that he was at fault in the creation of the overpayment from 

May 3 through July 25, 2015, but without fault in the creation of the overpayment from April 23 

through May 2, 2015. OWCP requested that appellant complete the enclosed overpayment 

recovery questionnaire (OWCP-20) and submit supporting financial documents. Additionally, it 

notified him that, within 30 days of the date of the letter, he could request a telephone conference, 

a final decision based on the written evidence, or a prerecoupment hearing. 

Appellant submitted an overpayment action request form dated July 20, 2017. The form 

advised that he could request either a telephone conference, a decision based on the written 

evidence, or a prerecoupment hearing, and that he could select only one of these options. In 

response, appellant placed checkmarks on the form by all options, indicating that he was requesting 

a telephone conference, a decision based on the written evidence, and a prerecoupment hearing. 

He disagreed that the overpayment occurred and requested waiver of recovery. 

Appellant telephoned OWCP on August 3, 2017 regarding the overpayment action 

recovery form. OWCP advised him that it received the form, but that he could only select one 

option on the form. 

By decision dated August 15, 2017, OWCP denied waiver of recovery of the overpayment 

of wage-loss compensation for the period April 23 through May 2, 2015. It found that he had not 

submitted any current financial information supporting waiver and also noted that he checked 

every option on the overpayment action request form. OWCP determined that it would recover 

the overpayment by deducting $250.00 from appellant’s continuing compensation payments every 

28 days.

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.6 Thus, a 

finding that appellant was without fault does not automatically result in waiver of the overpayment. 

 

5 Docket No. 16-1836 (issued May 23, 2017).

6 5 U.S.C. § 8129.
4

OWCP must exercise its discretion to determine whether recovery of the overpayment would 

defeat the purpose of FECA or would be against equity and good conscience.7

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 or 

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 

OWCP from data provided by the Bureau of Labor Statistics.8

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 his 

position for the worse.9

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.10 This information would also be 

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

submit the requested information within 30 days of the request shall result in denial of waiver.11

ANALYSIS -- ISSUE 1

On prior appeal, the Board affirmed OWCP’s finding that appellant received an 

overpayment of compensation in the amount of $8,405.72 from April 23 through July 25, 2015 

because he returned to work on April 23, 2015, but continued to receive wage-loss compensation. 

The Board further affirmed OWCP’s finding that appellant was at fault in creating the 

overpayment from May 3 through July 25, 2015. However, the Board set aside OWCP’s finding 

of fault with respect to the portion of the overpayment that covered the period April 23 through 

May 2, 2015. In July 21, 2016 and May 23, 2017 decisions, the Board remanded the case for 

OWCP to consider waiver of recovery of the overpayment for the period April 23 to May 2, 2015. 

OWCP, on July 7, 2017, provided appellant with a preliminary overpayment 

determination, an OWCP-20, and an overpayment action request form advising him that he could 

select either a prerecoupment hearing, a telephone conference, or a decision based on the written 

 

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

8 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).

9 20 C.F.R. § 10.437.

10 Id. at § 10.438(a).

11 Id. at § 10.438(b).
5

evidence. In response, appellant submitted the overpayment action request form and, by 

checkmark, selected all options provided on the form of a telephone conference, a prerecoupment

hearing, and a decision based on the written evidence. OWCP notified him on August 3, 2017 that 

he should select only one of the options, but he did not clarify his selection. Appellant did not 

submit the OWCP-20 or provide financial information.

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.12 In requesting waiver, the overpaid individual has the 

responsibility for submitting financial information.13 Appellant failed to provide the requested 

information, as required by section 10.438 of its regulations, and thus was not entitled to waiver.14 

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

of compensation.15

Appellant contends that he informed his vocational rehabilitation counselor and OWCP of 

his return to work to avoid an overpayment of compensation, but was accused of lying. His

argument on appeal does not specifically address the relevant issue of whether he provided 

sufficient financial information to support waiver of recovery of the overpayment created from 

April 23 to May 2, 2015.

LEGAL PRECEDENT -- ISSUE 2

The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those 

cases where OWCP seeks recovery from continuing compensation under FECA.16 Section 

10.441(a) of the regulations provides: 

“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 his or her attention is called to 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 

any hardship.”

17

 

12 See supra note 10; see also S.C., Docket No. 17-0762 (issued March 19, 2018).

13 Id.; see also A.R., Docket No. 14-1681 (issued March 3, 2016).

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

15 See P.D., Docket No. 15-0032 (issued March 11, 2016).

16 Lorenzo Rodriguez, 51 ECAB 295 (2000); Albert Pineiro, 51 ECAB 310 (2000).

17 20 C.F.R. § 10.441(a).
6

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly required recovery of the overpayment by deducting 

$250.00 every 28 days from appellant’s continuing compensation.

Although OWCP provided appellant an overpayment recovery questionnaire with the 

July 7, 2017 preliminary overpayment determination, as noted, he did not submit a completed 

questionnaire or other financial information prior to the August 15, 2017 decision denying wavier 

of recovery of the overpayment from April 23 through May 2, 2015. The overpaid individual is 

responsible for providing information about income, expenses, and assets as specified by OWCP.18 

When an individual fails to provide requested financial information, OWCP should follow 

minimum collection guidelines designed to collect the debt promptly and in full.19 As appellant 

did not submit any financial information to OWCP, the Board finds that OWCP properly directed 

recovery of the overpayment at the rate of $250.00 every 28 days from his continuing 

compensation. 

CONCLUSION

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

compensation for the period April 23 to May 2, 2015. The Board further finds that it properly 

determined that it would recover the overpayment of compensation by withholding $250.00 every 

28 days from appellant’s continuing compensation payments.

 

18 Id. at § 10.438; see also W.A., Docket No. 18-0070 (issued May 14, 2018).

19 Frederick Arters, 53 ECAB 397 (2002); Gail M. Roe, 47 ECAB 268 (1995).
7

ORDER

IT IS HEREBY ORDERED THAT the August 15, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 3, 2018

Washington, DC

Christopher J. Godfrey, 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