United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.L., Appellant

and

U.S. POSTAL SERVICE, NEW DORP POST 

OFFICE, Staten Island, NY, Employer

__________________________________________

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Docket No. 19-0784

Issued: September 19, 2019

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 27, 2019 appellant, through counsel, filed a timely appeal from a January 22,

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

has jurisdiction over the merits of this case.

3

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 The Board notes that counsel did not appeal from the December 17, 2018 OWCP decision, which denied 

expansion of the acceptance of appellant’s claim to include additional right shoulder and arm conditions as causally 

related to the accepted June 9, 2017 employment injury. Therefore, the Board has not exercised jurisdiction over that 

decision. See 20 C.F.R. § 501.3(c)(4).

3 The Board notes that counsel 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

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $5,645.29 for the period July 25 through 

November 10, 2017, for which she was without fault; and (2) whether OWCP properly denied 

waiver of recovery of the overpayment.

FACTUAL HISTORY

On June 9, 2017 appellant, then a 52-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) for a right shoulder and arm injury that she allegedly sustained on that date while in 

the performance of duty. She claimed that she impacted her right shoulder and arm on the interior 

of the mail truck during a motor vehicle accident. Appellant stopped work on that date and 

received continuation of pay beginning June 10, 2017. On the reverse side of the claim form, the 

employing establishment noted that appellant worked part time for four hours per day, five days 

per week.4

On July 25, 2017 OWCP accepted appellant’s claim for right shoulder sprain. Appellant 

received wage-loss compensation benefits for temporary total disability beginning July 25, 2017 

based on a weekly pay rate of $1,151.13 and working 40 hours per week.

In a letter dated January 11, 2018, OWCP requested additional information from the 

employing establishment regarding appellant’s gross earnings for one year prior to June 9, 2017. 

It also requested that the employing establishment confirm the kind of appointment that she had 

and whether she worked full time, part time, or intermittently.

In a March 19, 2018 telephone memorandum (Form CA-110) note, appellant informed 

OWCP that from April 2016 to June 9, 2017 she worked four hours per day.

On March 26, 2018 the employing establishment responded to the January 11, 2018 letter. 

It indicated that appellant’s gross pay for the year immediately prior to June 9, 2017 was 

$34,258.00 and her base weekly pay rate was $658.81. The employing establishment reached this 

amount by dividing $34,258.00 by 52 to equal $658.81. It noted that appellant worked less than

eight hours per day prior to the June 9, 2017 employment injury due to an unrelated condition. 

The employing establishment explained that although appellant was employed as a full-time letter 

carrier, she had not worked her full-time job for the last year.

On March 30, 2018 OWCP adjusted appellant’s wage-loss compensation benefits

beginning November 11, 2017 based on a weekly pay rate of $658.81 for working 20 hours per 

week.

On June 11, 2018 an overpayment was identified in appellant’s case because she received 

wage-loss compensation benefits in the amount of $12,129.66 for the period July 25 to 

 

4 The record reflects that at the time of the injury, appellant was working four hours per day due to a previous knee 

injury. 
3

November 10, 2017 when she should have received $6,484.37. OWCP subtracted $6,484.37 from 

$12,129.66 for a total overpayment of $5,645.29.5

In November 2018 OWCP expanded acceptance of the claim to include temporary 

aggravation of right shoulder adhesive capsulitis. 

On December 11, 2018 appellant returned to part-time, limited-duty work for four hours 

per day. 

In a December 19, 2018 letter, A.W., an injury compensation specialist for the employing 

establishment, indicated that at the time of the June 9, 2017 employment injury appellant had been 

working four hours per day. She related that from July 25 through November 10, 2017 appellant 

was paid wage-loss compensation for 40 hours per week. A.W. requested that OWCP review the 

file and declare an overpayment of compensation for the period July 25 to November 10, 2017. 

On December 20, 2018 OWCP advised appellant of its preliminary determination that she 

had received an overpayment of wage-loss compensation in the amount of $5,645.29 because 

compensation was paid at an inaccurate pay rate for the period July 25 to November 10, 2017. It 

calculated the overpayment by subtracting the total amount it should have paid her using the proper 

pay rate from the date of injury from the amount it paid her using the incorrect pay rate. OWCP 

found that for the period July 25 to November 10, 2017, it paid her $12,129.66 based on working 

40 hours per week, when it should have paid her $6,484.37 based on working 20 hours per week, 

which resulted in the creation of an overpayment of compensation in the amount of $5,645.29. It 

further notified appellant of its preliminary determination that she was without fault in the creation 

of the overpayment of compensation. OWCP requested that she complete an enclosed

overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial 

documents. Additionally, it notified appellant that, within 30 days of the date of the letter, she 

could request a telephone conference, a final decision based on the written evidence, or a 

prerecoupment hearing.

OWCP did not receive a completed Form OWCP-20 or additional documents regarding 

appellant’s alleged overpayment.

By decision dated January 22, 2019, OWCP finalized the preliminary determination that 

appellant received an overpayment of compensation in the amount of $5,645.29 for the period 

July 25 through November 10, 2017 because she was paid at an incorrect pay rate. The claims 

examiner further found that appellant was without fault in the creation of the overpayment, but 

denied waiver of recovery of the overpayment because she had not submitted evidence in response 

to the December 20, 2018 preliminary determination to support that the overpayment should be 

waived.

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 

 

5 OWCP provided payment documents supporting that appellant received $12,129.66 for the period July 25 to 

November 10, 2017. It also provided calculations showing that appellant was only entitled to receive $6,484.37 for 

this period based on the proper weekly pay rate of $658.81.
4

performance of duty.6 Pay rate for compensation purposes is defined in section 8101(4) as the 

monthly pay at the time of injury, the time disability begins, or the time disability recurs, if the 

recurrence is more than six months after returning to full-time work, whichever is greater.7

Once the proper time period is determined, section 8114(d) 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 --

(a) was fixed, the average annual earnings are the annual rate of pay.”

8

OWCP’s Federal (FECA) Procedure Manual further provides that the claims examiner 

should determine the basis of payment under 5 U.S.C. § 8114 and whether the claimant is a fulltime, part-time, temporary, seasonal, casual, etc. worker.9

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $5,645.29 for the period July 25 through November 10, 2017, 

for which she was without fault. 

Beginning July 25, 2017, OWCP paid appellant compensation for total disability using the 

weekly pay rate of $1,151.13. When appellant’s June 9, 2017 employment injury occurred, 

however, she was only working four hours per day, five days per week. The employing 

establishment indicated that the correct date-of-injury weekly pay rate should have been $658.81 

because appellant worked for 20 hours per week.10 As appellant received compensation based on 

the incorrect date-of-injury weekly pay rate for the period July 25 through November 10, 2017, 

she received an overpayment of compensation.11

The Board further notes that the record contains evidence which shows that appellant 

received $12,129.66 in compensation for the period July 25 to November 10, 2017 when she was 

only entitled to receive $6,484.37. Therefore, OWCP properly determined that she received an 

overpayment of compensation in the amount of $5,645.29.12

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an individual who is without fault in creating or 

accepting an overpayment is still subject to recovery of the overpayment unless adjustment or 

 

6 5 U.S.C. § 8102(a).

7

Id. at § 8101(4).

8

Id. at § 8114(d)(1)(a).

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.2(a) (March 2011).

10 OWCP noted that $34,258.00 divided by 52 weeks equals $658.81.

11 See N.C., Docket No. 18-1070 (issued January 9, 2019); C.Y., Docket No. 18-0263 (issued September 14, 2018).

12 See P.J., Docket No. 18-0248 (issued August 14, 2018).
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recovery would defeat the purpose of FECA or would be against equity and good conscience.13 

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 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.

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause 

hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP 

seeks recovery needs substantially all of his or her current income, including compensation 

benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do 

not exceed a specified amount as determined by OWCP.15 Additionally recovery of an 

overpayment is considered to be against equity and good conscience when any individual who 

received an overpayment would experience severe financial hardship in attempting to repay the 

debt or when any individual, in reliance on such payment or on notice that such payments would 

be made, gives up a valuable right or changes his or her position for the worse.16

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.17

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $5,645.29 

overpayment. 

As OWCP found appellant without fault in the creation of the overpayment, waiver must 

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.18 Appellant, 

however, had the responsibility to provide financial information to OWCP,19 and did not do so.

In its preliminary determination dated December 20, 2018, OWCP clearly explained the 

importance of providing the completed overpayment recovery questionnaire (Form OWCP-20) 

 

13 5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437.

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

15 20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $4,800.00. The base 

increases to $8,000.00 for an individual with a spouse or one 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).

16 Id. at § 10.437(a)(b).

17 Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

18 Supra note 11.

19 Supra note 15.
6

and financial information. It advised appellant that it would deny waiver of recovery if she failed 

to furnish the requested financial information within 30 days. Appellant did not submit a 

completed overpayment recovery questionnaire or otherwise submit financial information 

supporting her income and expenses within the defined period. As a result, OWCP did not have 

the necessary financial information to determine if recovery of the overpayment would defeat the 

purpose of FECA or if recovery would be against equity and good conscience.20

Consequently, as appellant did not submit the financial information required under section 

10.438 of OWCP regulations, which was necessary to determine her eligibility for waiver, OWCP 

properly denied waiver of recovery of the overpayment.21

CONCLUSION

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

$5,645.29 for the period July 25 through November 10, 2017, for which she was without fault. 

The Board further finds that OWCP did not abuse its discretion by refusing to waive recovery of 

the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the January 22, 2019 decision of the Office of

Workers’ Compensation Programs is affirmed.

Issued: September 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 See S.M., Docket No. 17-1802 (issued August 20, 2018).

21 Id.