United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.C., Appellant

and

U.S. POSTAL SERVICE, NEWHALL ANNEX, 

Newhall, CA, Employer

__________________________________________

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Docket No. 19-0320

Issued: July 26, 2019

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 26, 2018 appellant filed a timely appeal from an October 16, 2018 merit 

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.2

ISSUES

The issues are: (1) whether OWCP properly determined that appellant abandoned her 

request for a prerecoupment hearing before an OWCP hearing representative; (2) whether OWCP 

properly determined that appellant received an overpayment of compensation in the amount of 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of 

Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before 

OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first 

time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for 

the first time on appeal. Id.
2

$3,761.38 for the period November 11, 2017 through March 3, 2018, for which she was without

fault; and (3) whether OWCP abused its discretion by denying waiver of recovery of the 

overpayment.

FACTUAL HISTORY

On February 28, 2017 appellant, then a 65-year-old rural carrier associate, filed an 

occupational disease claim (Form CA-2) alleging that she developed overuse syndrome in her right 

hip due to repeatedly entering and exiting her mail truck while in the performance of duty. She 

noted that she first became aware of her claimed condition and related it to her federal employment 

on December 31, 2013. On the reverse side of the claim form, appellant’s supervisor indicated 

that appellant’s work hours varied and that she worked six days a week. On May 16, 2017 OWCP 

accepted her claim for right hip tendon tear and bursitis of the right trochanteric bursa. Appellant

underwent right hip surgery on October 17, 2017.

On August 26, 2017 appellant began filing claims for compensation (Form CA-7) for the 

period August 23 through December 8, 2017. She noted that in addition to her federal 

employment, she worked approximately 20 hours a week as a care taker. The employing 

establishment indicated that appellant started her federal job on December 31, 2013 with a base 

pay of $19.94 per hour and that her average weekly work hours were 32.80. Appellant stopped 

work on September 2, 2017 and her pay rate was $21.54 per hour and her weekly hours were 37.80. 

She did not work 40 hours a week. On November 8, 2017 OWCP contacted the employing 

establishment which reported that appellant’s hourly pay rate on April 3, 2017 was $21.54.

In a letter dated November 14, 2017, OWCP requested additional information from the 

employing establishment regarding appellant’s gross earnings for one year prior to 

August 23, 2017. It noted that as she was a rural carrier associate, to compute her weekly pay rate, 

it needed to obtain the total gross earnings, less overtime, for one year prior to the pay rate date 

and divide by 52. OWCP also notified appellant that on November 14, 2017 it had processed a 

payment from October 17 through November 10, 2017 in the amount of $1,118.43 based on a 

temporary provisional pay rate of $469.74 per week. It based this pay rate on an hourly wage of 

$21.54 and average weekly work hours of 37.80 divided by 5 workdays and multiplied by 150 

days divided by 52 weeks. OWCP informed appellant that if her actual pay rate was greater than 

$469.74, it would process an adjustment based on the difference in pay upon receipt of the 

necessary information from the employing establishment.

On November 30, 3017 the employing establishment reported that appellant’s total gross 

earnings, exclusive of overtime, for one year prior to August 23, 2017 was $61,393.14. It also 

noted that appellant used a combination of sick and annual leave from August 23 through 

September 1, 2017 resulting in an overpayment of compensation.

On December 12, 2017 OWCP calculated appellant’s weekly pay rate as $1,180.64 based 

on her yearly earnings of $61,393.14 from August 2016 through August 2017. Appellant’s annual 

salary of $61,393.14 was divided by 52 weeks to equal $1,180.64. It determined that she had been 

overpaid from August 23 through September 1, 2017, as she used leave, and underpaid from 

September 2 through November 10, 2017. OWCP paid appellant wage-loss compensation in the 

amount of $3,260.82 for the period November 11 through December 9, 2017 based on a weekly 
3

pay rate of $1,180.64. It also paid appellant wage-loss compensation in the amount of $3,148.37 

for the period December 10, 2017 through January 6, 2018 based on a weekly pay rate of 

$1,180.64.

On December 15, 2017 OWCP entered appellant on the periodic rolls based on her weekly 

pay rate of $1,180.64.

In a January 26, 2018 preliminary determination, OWCP informed appellant that she had 

received an overpayment of compensation in the amount of $447.37 for the period August 23 

through September 1, 2017 as she received wage-loss compensation for total disability and used 

sick and annual leave. It found that she was without fault in the creation of the overpayment. 

OWCP requested that appellant complete an overpayment recovery questionnaire (Form OWCP20) and afforded her 30 days to pay the debt in full or to follow her appeal options.

In a letter dated February 1, 2018, the employing establishment notified OWCP that it had 

provided incorrect earnings for appellant for the period August 2016 through August 2017. The 

yearly earnings in the amount of $61,393.14 improperly included overtime. It provided the 

corrected yearly salary of $43,218.73. The employing establishment requested that OWCP 

calculate an overpayment.

On February 2, 2018 appellant provided one page of the overpayment recovery 

questionnaire (Form OWCP-20) indicating that she had none of the incorrectly paid checks in her 

possession and that she had not transferred by loan, gift, or sale any property or case since she was 

notified of the overpayment. She requested that OWCP process the $447.37 overpayment with 

her pending underpayment.

On March 13, 2018 OWCP determined that wage-loss compensation in the amount of 

$2,216.35 was due for the period March 4 through 31, 2018 based on appellant’s corrected weekly 

pay rate of $831.13. It reached this amount by dividing $42,218.73 by 52 to equal $831.13. OWCP

also found that appellant received the net amount of $3,578.97 for the period September 2 through 

November 10, 2017 based on a temporary weekly pay rate of $469.74 or $3,131.60. It determined 

that based on the February 1, 2018 letter from the employing establishment, her weekly pay rate 

was $831.13 resulting in $5,540.87 of wage-loss compensation for the September 2 through 

November 10, 2017 period. As she had previously received $3,131.60, appellant was entitled to 

an additional $2,409.27 due to underpayment. OWCP also recovered the $447.37 overpayment 

which resulted in a net payment of $1,961.90 on March 12, 2018.

On March 12, 2018 OWCP completed worksheets and determined that based on the 

corrected weekly pay rate of $831.13 appellant was entitled to receive $5,540.87 in wage-loss 

compensation for the period September 2 through November 10, 2017 and $8,944.55 in wage-loss 

compensation for the period November 11, 2017 through March 3, 2018.

In a March 27, 2018 preliminary determination, OWCP notified appellant that she had 

received an overpayment of compensation in the amount of $3,761.38 due to incorrect pay rate 

information provided by the employing establishment. It determined that she had received wageloss compensation in the amount of $12,705.93, for the period November 11, 2017 through 

March 3, 2018 based on a reported yearly salary of $61,393.14, while she was entitled to receive 
4

compensation in the amount of $8,944.55, based on her yearly salary of $43,218.73 (properly 

calculated without overtime earnings) for the period November 11, 2017 through March 3, 2018 

resulting in the finding of a $3,761.38 overpayment of wage-loss compensation. OWCP found 

that appellant was without fault in the creation of the overpayment of wage-loss compensation. It 

requested that she complete an overpayment recovery questionnaire (Form OWCP-20) and 

afforded her 30 days to pay the debt in full or to follow her appeal options.

On April 19, 2018 appellant contested the fact and amount of the overpayment. She also

requested waiver of recovery of the overpayment. Appellant asserted that the salary calculation 

of $61,393.14 for August 2017 through August 2018 was correct.

In a letter dated April 23, 2018, OWCP noted that appellant had not selected an appeal 

option on the overpayment action request form and asked that she do so. On May 22, 2018 

appellant requested a prerecoupment hearing on the issues of fact, amount, and waiver with

OWCP’s Branch of Hearings and Review. She also provided a completed overpayment recovery 

questionnaire (Form OWCP-20) dated May 15, 2018. Appellant listed her income as $2,058.00 

in social security benefits and $500.00 in guest house rental, totaling $2,558.00. She did not report 

FECA benefits or earnings. Appellant asserted that she supported two minor granddaughters. She

listed her monthly expenses as $3,174.86 for housing, $400.00 for food, $200.00 for clothing, 

$1,250.00 for utilities, and $675.00 for miscellaneous expenses. Appellant also reported a monthly 

car payment of $179.86 and monthly credit card payments of $750.00 for total monthly expenses 

of $6,629.72. She indicated that her checking account balance was $1,500.00 and that she had 

$9,050.00 in savings for total funds of $10,550.00.

On May 24, 2018 appellant returned to full-duty work.3

In an August 16, 2018 letter, an OWCP hearing representative advised appellant that a 

telephonic prerecoupment hearing was scheduled for October 4, 2018 at 12:00 p.m. Eastern

Standard Time.4 The hearing notice included a toll-free number and pass code to enable access to 

the telephonic hearing. The hearing notice was mailed to appellant’s Newhall, California, address. 

In a separate letter of the same date and to the same address, OWCP’s hearing representative

requested that appellant complete an overpayment recovery questionnaire (Form OWCP-20).

By decision dated October 16, 2018, an OWCP hearing representative found that appellant

had abandoned her oral prerecoupment hearing scheduled for October 4, 2018. She had afforded 

appellant notice 30 days prior to the scheduled hearing, which she failed to attend. There was no

indication in the file that appellant contacted the Branch of Hearings and Review either prior to or 

subsequent to the scheduled hearing to explain her failure to appear. She further issued a final 

decision determining that appellant had received an overpayment of wage-loss compensation in 

the amount of $3,761.38 for the period November 11, 2017 through March 3, 2018 due to the 

employing establishment’s error in calculating her yearly salary, and that she was not at fault in 

the creation of this overpayment. OWCP’s hearing representative denied waiver of recovery as 

 

3 Fiscal worksheets of record indicate that OWCP terminated appellant’s compensation.

4 As appellant resided in the Pacific Standard Time zone, OWCP advised her to make certain that her local time 

was adjusted accordingly. 
5

appellant had not submitted financial documentation in support of her completed Form OWCP-20. 

She further noted that appellant’s assets of $10,550.00 exceeded the resource base required to be 

eligible for waiver such that recovery would not defeat the purpose of FECA. The hearing 

representative determined that the $3,761.38 overpayment of compensation was due and payable 

in full.

LEGAL PRECEDENT -- ISSUE 1

A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request, 

to a hearing before an OWCP representative.5 Unless otherwise directed in writing by the 

claimant, the hearing representative will mail a notice of the time, place, and method of the oral 

hearing to the claimant and to any representative at least 30 days before the scheduled hearing 

date.6

A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned 

only under very limited circumstances.7 With respect to abandonment of hearing requests, Chapter 

2.1601(g) of OWCP’s procedures8and section 10.622(f) of its regulations9 provide in relevant part 

that failure of the claimant to appear at the scheduled hearing, failure to request a postponement, 

and failure to request in writing within 10 days after the date set for the hearing that another hearing 

be scheduled shall constitute abandonment of the request for a hearing. Under these circumstances, 

the Branch of Hearings and Review will issue a formal decision finding that the claimant has 

abandoned his or her request for a hearing and return the case to the district office.10

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant abandoned her request for 

a prerecoupment hearing. 

OWCP’s Branch of Hearings and Review received appellant’s March 27, 2018 request for 

an oral hearing. In a letter dated May 22, 2018, OWCP’s hearing representative provided appellant 

30 days written notice of the hearing, which was scheduled for October 4, 2018 at 12:00 p.m. 

Eastern Standard Time. OWCP mailed the May 22, 2018 notice of hearing to appellant’s last 

known address, and it was not returned as undeliverable. Absent evidence to the contrary, a notice 

mailed in the ordinary course of business is presumed to have been received by the intended 

 

5 5 U.S.C. § 8124(b).

6 20 C.F.R. § 10.617(b).

7 C.Y., Docket No. 18-0263 (issued September 14, 2018); Claudia J. Whitten, 52 ECAB 483 (2001).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.6(g) (October 2011).

9 20 C.F.R. § 10.622(f).

10 Id.
6

recipient.11 The presumption is commonly referred to as the “mailbox rule.”

12

 It arises when the 

record reflects that the notice was properly addressed and duly mailed.13 The current record is 

devoid of evidence to rebut the presumption that appellant received the Branch of Hearings and 

Review’s May 22, 2018 notice of hearing.

The hearing notice was properly addressed to appellant’s last known address.14 Appellant 

did not call-in as instructed for the October 4, 2018 scheduled telephonic hearing and there is no 

indication that she requested postponement of same.15 Moreover, she did not submit a written 

request within the 10 days after the date set for the hearing and request that another hearing be 

scheduled. Under the circumstances, OWCP’s hearing representative properly found that 

appellant abandoned her hearing request.16

LEGAL PRECEDENT -- ISSUE 2

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 or her duty.17 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.”

18

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

monthly pay.19 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.20

 

11 C.Y., Docket No. 18-0263 (issued September 14, 2018); Kenneth E. Harris, 54 ECAB 502, 505 (2003).

12 Id.

13 Id.

14 Id.; K.F., Docket No. 17-1035 (issued August 24, 2017).

15 20 C.F.R. § 10.622(c).

16 C.Y., supra note 11; M.V., Docket No. 17-1795 (issued March 1, 2018).

17 5 U.S.C. § 8102(a).

18 Id. at § 8129(a).

19 Supra note 17 at § 8106(a).

20 5 U.S.C. § 8101(4).
7

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 he was employed at the 

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

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

* * *

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

multiplying his daily wage for the particular employment, or the average 

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

basis of a 6-day workweek, 280 if employed on the basis of a 51⁄2 -day week, 

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

21

Section 8114(e) of FECA provides that the pay does not include overtime pay.22

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $3,761.38 for the period November 11, 2017 through March 3, 

2018 because she received compensation based on a weekly pay rate of $1,180.64 rather than the 

proper weekly pay rate of $831.13.

23

 Beginning November 11, 2017 OWCP paid appellant 

compensation for total disability using the weekly pay rate of $1,180.64 per week, based on the 

November 30, 2017 letter from the employing establishment which listed her yearly income as 

$61,393.14. However, the employing establishment corrected appellant’s annual pay rate on 

February 1, 2018 to $43,218.73 noting that the prior annual pay rate of $61,393.14 improperly 

included appellant’s earned overtime pay. Therefore, OWCP correctly determined that the 

compensation appellant received from November 11, 2017 to March 3, 2018 should have been 

based on the weekly pay rate of $831.13 as that pay rate did not include overtime pay.24

The Board further notes that the record contains evidence which shows that, given the 

above-noted payments at an improper pay rate, appellant received $12,705.93 in compensation for 

the period November 11, 2017 through March 3, 2018 based on a reported yearly salary of 

$61,393.14, when she was only entitled to receive $8,944.55, based on her yearly salary of 

 

21 See also Federal (FECA) Procedure Manual, Part 2-- Claims, Determining Pay Rates, Chapter 2.900.4.a.(4) 

(March 2011) noting that the pay rate of a rural carrier associate or part-time flexible employee of the Postal Service 

who works substantially the entire year prior to injury would be computed under section 8114(d)(1)(B) of FECA 

because an annual rate of pay can be established by obtaining the yearly earnings, without overtime, for the year prior 

to the injury.).

22 5 U.S.C. § 8114(e)(1).

23 P.J., Docket No. 18-0248 (issued August 14, 2018).

24 Supra note 22.
8

$43,218.73. Therefore, OWCP properly determined that she received a $3,761.38 overpayment 

of compensation.

LEGAL PRECEDENT -- ISSUE 3

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.25 These statutory guidelines are 

found in section 8129(b) of FECA which provide: “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.”

26

 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 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.

27

 An individual is deemed to need substantially all of his or her current income to meet 

current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00.28

OWCP’s procedures in effect at the time of the October 16, 2018 decision provide that the 

assets must not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an 

individual with a spouse or dependent plus $1,200.00 for each additional dependent.29 An 

individual’s liquid assets include, but are not limited to cash, the value of stocks, bonds, saving 

accounts, mutual funds, and certificate of deposits. Liquid assets include, but are not limited to, 

the fair market value of an owner’s equity in property such as a camper, boat, second home, and 

furnishings/supplies.30

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 

 

25 See P.J., supra note 23; Robert Atchison, 41 ECAB 83, 87 (1989).

26 5 U.S.C. § 8129(b).

27 20 C.F.R. § 10.436. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment 

Determinations, Chapter 6.400.4.a.(2) (September 2018); P.J., supra note 17; B.F., Docket No. 13-0785 (issued

September 20, 2013).

28 M.A., Docket No. 18-1666 (issued April 26, 2019); id. at Chapter 6.400.4.a(3).

29 Supra note 27 at Chapter 6.400.4.a(2).

30 Id. at Chapter 6.400.4.b(3).
9

or her position for the worse.31 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.32

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.33

ANALYSIS -- ISSUE 3

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because her assets exceed the allowable resource base of $6,200.00 for an individual, as 

provided in OWCP’s procedures. Her overpayment recovery questionnaire (Form OWCP-20)

established that she currently had assets of $10,550.00. Because appellant has not met the second 

prong of the two-prong test of whether recovery of the overpayment would defeat the purpose of 

FECA, it is not necessary to consider the first prong of the test i.e., whether her monthly income 

exceeded her monthly ordinary and necessary expenses by more than $50.00.34 She did not 

establish that she was entitled to waiver on the basis of defeating the purpose of FECA.35

Appellant also has not established that recovery of the overpayment would be against 

equity and good conscience because she has not shown, for the reasons noted above, that she would 

experience severe financial hardship in attempting to repay the debt or that she relinquished a 

valuable right or changed her position for the worse in reliance on the payment which created the 

overpayment.36

Because appellant has not established that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, the Board finds that she has not shown

that OWCP abused its discretion by denying waiver of recovery of the overpayment.37

 

31 20 C.F.R. § 10.437(a), (b).

32 Id. at § 10.437(b)(1).

33 Id. at § 10.438.

34 Supra note 27 at Chapter 6.400.4.a.

35 M.A., supra note 28; A.C., Docket No. 18-1550 (issued February 21, 2019).

36 See P.J., supra note 23; William J. Murphy, 41 ECAB 569, 571-72 (1989).

37 Supra note 35.
10

CONCLUSION

The Board finds that OWCP properly determined that appellant abandoned her request for 

a prerecoupment hearing before an OWCP hearing representative. The Board also finds that 

appellant received an overpayment of compensation in the amount of $3,761.38 for the period 

November 11, 2017 through March 3, 2018, for which she was without fault, and that OWCP did 

not abuse its discretion by refusing to waive recovery of the overpayment.38 

ORDER

IT IS HEREBY ORDERED THAT the October 16, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 26, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

38 With respect to recovery of the overpayment of compensation, the Board notes that appellant returned to fullduty work on May 24, 2018. The Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery 

from continuing compensation benefits under FECA. As appellant was 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. 

See R.E., Docket No. 17-1625 (issued July 18, 2018).