United States Department of Labor

Employees’ Compensation Appeals Board

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C.G., Appellant

and

U.S. POSTAL SERVICE, PROCESSING &

DISTRIBUTION CENTER, Tampa, FL, 

Employer

__________________________________________

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Docket No. 18-1655

Issued: June 14, 2019

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 August 30, 2018 appellant filed a timely appeal from an August 20, 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 received an 

overpayment of compensation in the amount of $8,152.66 for the period April 6, 2017 through 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the August 20, 2018 decision, OWCP and the Board received additional evidence.

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.
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April 28, 2018, for which appellant was without fault; (2) whether OWCP properly denied waiver 

of recovery of the overpayment; and (3) whether OWCP properly required recovery of the 

overpayment by deducting $100.00 every 28 days from appellant’s continuing compensation 

payments.

FACTUAL HISTORY

On February 4, 2017 appellant, then a 54-year-old postal support employee mail processing 

clerk, filed a traumatic injury claim (Form CA-1) alleging that on that day she was hit on the head 

by a shelf cage door while in the performance of duty. OWCP accepted the claim for cervical 

sprain and herniated nucleus pulposus at C5-6 with radiculopathy. Appellant stopped work on 

February 4, 2017 and returned to light-duty work, four hours a day on June 14, 2017. On August 1, 

2017 she suffered a heart attack and underwent open heart surgery on August 3, 2017. Appellant 

returned to light-duty work, four hours a day on November 11, 2017. She subsequently stopped 

work at a later date. Effective April 29, 2018, appellant received compensation on OWCP’s 

periodic compensation rolls.

Based on pay rate information submitted from the employing establishment, OWCP paid 

appellant total disability for the period April 6 to June 13, 2017 and partial disability from June 14, 

2017 to April 28, 2018 with a reported date-of-injury weekly pay rate of $910.31.3

In letters dated February 23 and March 22, 2018, the employing establishment reported a 

discrepancy with the date-of-injury weekly pay rate and indicated that the correct date-of-injury 

weekly pay rate was $676.84.4 This was comprised of a base pay rate of $656.80 plus $20.04 for 

night differential.

On April 30, 2018 OWCP advised appellant that she had been retained on the periodic 

compensation rolls effective April 29, 2018. It adjusted her periodic rolls compensation payments 

effective April 29, 2018 based on the corrected date-of-injury weekly pay rate of $676.84.

On June 21, 2018 OWCP advised appellant of its preliminary determination that she had 

received an overpayment of wage-loss compensation in the amount of $8,152.66 because it paid 

her at an inaccurate pay rate for the period April 5, 2017 to April 28, 2018. It calculated the 

overpayment by subtracting the amount it should have paid her using the proper weekly pay rate 

of $676.84 from the date of injury from the amount it paid her using the incorrect weekly pay rate 

of $910.31 from the date of injury. OWCP found that for the period April 6, 2017 to April 28, 

2018 it paid her $21,049.24 using the incorrect weekly pay rate of $910.31 when it should have 

paid her $13,821.64 based on the correct weekly pay rate of $676.84. It noted that this amounted 

to an overpayment of $7,227.60. OWCP further notified appellant of its preliminary determination 

that she was without fault in creation of the overpayment of compensation. It requested that she 

 

3 This was based on a similar PSE-MPC, Level 6, Step A, working the same base work schedule, at the same 

facility, earning $16.42 per hour, and working 40 hours per week plus an average of 34 hours night differential per 

week, for one year prior to the February 4, 2017 date of injury. 

4 This calculation was also based on a similar PSE-MPC employee, Level 6, Step A, working the same base 

schedule, at the same facility, earing $16.42 an hour, 40 hours a week plus 17.5 hours night differential. 
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complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit 

supporting financial documents. Additionally, OWCP 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.

Included in the record were copies of OWCP’s manual adjustment forms for the period 

April 6, 2017 through April 28, 2018 and copies of appellant’s wage-earning capacity calculations. 

Overpayments for the following periods were calculated as: for the period April 6 to June 13, 

2017, $1,534.23; for the period June 14 to July 21, 2017, $925.06; for the period August 5 to 24, 

2017, $420.20; and for the period September 2, 2017 to April 28, 2018, $5,273.17, for a total 

overpayment amount of $8,152.66.

On July 18, 2018 appellant disagreed that she had received an overpayment of 

compensation and requested a telephonic conference with OWCP on the issue of waiver. She also 

submitted a completed Overpayment Recovery Questionnaire (Form OWCP-20) and provided 

detailed financial documentation. 

On August 16, 2018 a telephonic conference was held on the overpayment of 

compensation. In a memorandum of conference, the claims examiner noted that the overpayment 

in the amount of $8,152.66 for the period April 6, 2017 through April 28, 2018 was calculated as 

follows: for the period April 6 to June 13, 2017, $1,534.23; for the period June 14 to July 21, 

2017, $925.06; for the period August 5 to 24, 2017, $420.20; and for the period September 2, 2017 

to April 28, 2018, $5,273.17. The claims examiner found appellant’s total monthly income was 

$2,405.93 ($1,845.00 income plus $560.03 adult children’s income) and total monthly 

expenditures were $1,990.65. Appellant advised that her monthly mortgage of $2,089.02 was paid 

by her sister as she could not afford the monthly payment. She further indicated that she has a 

personal loan from her sister and paid only when she could. The claims examiner explained that 

appellant’s mortgage could not be considered as a monthly expense as it was being paid by 

someone else. As appellant’s monthly income was greater than her monthly expenses by $415.28, 

the claims examiner advised that waiver of recovery of the overpayment could not be granted. 

Both parties agreed to repayment of $100.00 from her continuing compensation. A copy of the 

memorandum of conference was sent to appellant. 

By decision dated August 20, 2018, OWCP finalized the preliminary determination that 

appellant received an overpayment of compensation in the amount of $8,152.55 for the period 

April 5, 2017 through April 28, 2018 as 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 based upon the finding that appellant’s monthly income was more 

than her monthly expenses by $415.28 and that she had not provided information to support a 

finding that the adjustment of recovery would either defeat the purpose of FECA or be against 

equity and good conscience. OWCP directed recovery of the overpayment by deducting $100.00 

every 28 days from continuing compensation payments until the overpayment was absorbed. 

LEGAL PRECEDENT -- ISSUE 1

Section 8102 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 
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performance of duty.5 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.6

Section 8129(a) of FECA provides that when an overpayment of compensation has been 

made to an individual 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 the individual is 

entitled.7

If the claimant is entitled to compensation for partial wage loss after return to work, the 

claims examiner should compute entitlement using the Shadrick formula and authorize 

compensation on a 28-day payment cycle.8

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision. 

OWCP found that appellant received an overpayment of compensation because she 

received wage-loss compensation at an inaccurate pay rate for the period April 5, 2017 through 

April 28, 2018. It paid her wage-loss compensation beginning April 5, 2017 using a date-of-injury 

weekly pay rate of $910.31. The employing establishment indicated that the correct date-of-injury 

weekly pay rate should have been $676.84. As appellant received compensation based on the 

incorrect date-of-injury weekly pay rate for the period April 5, 2017 through April 28, 2018, she 

received an overpayment of compensation.9 The Board therefore finds that appellant received an 

overpayment of compensation.

However, the Board further finds that the case is not in posture for decision with regard to 

the amount of the overpayment. In its June 21, 2018 preliminary overpayment determination, 

OWCP found an overpayment of compensation in the amount of $8,152.66, for which appellant 

was without fault, because it had used an incorrect weekly pay rate of $910.31. It noted that for 

the period April 6, 2017 to April 28, 2018 appellant received $21,049.24 based on an incorrect 

weekly pay rate of $910.31 instead of using the correct weekly pay rate of $676.84 which should 

have resulted in a payment of $13,821.64. When subtracting $13,821.64 from $21,049.24 during 

the period in question, this results in a $7,227.60 overpayment, which OWCP found on page 5 of 

its memorandum to file incorporated into the June 21, 2018 preliminary overpayment 

determination. However, it reemphasized in that same memorandum that the overpayment amount 

for the period in question was $8,152.66. Similarly, in its memorandum of conference on 

August 16, 2018, OWCP found an overpayment of compensation in the amount of $8,152.66 and 

 

5 5 U.S.C. § 8102(a).

6

Id. at § 8101(4).

7

Id. at § 8129(a).

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

9 See id.; E.E., Docket No. 14-1908 (issued April 22, 2015).
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finalized this amount in its August 20, 2018 decision. It did not mention the amount of $7,227.60 

again and provided no further explanation concerning that amount. Due to these inconsistencies, 

the Board is unable to adequately review this aspect of the case. A claimant is entitled to an 

overpayment decision that clearly explains how the amount was calculated.10 The Board finds that 

the overpayment decision in this case does not provide such an explanation. Therefore, the amount 

of overpayment has not been established.

On remand OWCP shall determine the exact amount of overpayment in compensation 

which occurred when it paid appellant at an inaccurate pay rate for the period April 5, 2017 to 

April 28, 2018. It should then issue a new preliminary overpayment determination, with an 

appropriate overpayment action request form, an overpayment recovery questionnaire, and 

instructions for her to provide supporting financial information. After OWCP has further 

developed the case record, a de novo decision shall be issued.11

 

10 See A.J., Docket No. 18-1152 (issued April 1, 2019); J.W., Docket No. 15-1163 (issued January 13, 2016); see 

also O.R., 59 ECAB 432 (2008) with respect to overpayment decisions, OWCP must provide clear reasoning showing 

how the overpayment was calculated); see Jenny M. Drost, 56 ECAB 587 (2005) (to comply with OWCP’s 

overpayment procedures, an overpayment decision must contain a clearly written explanation indicating how the 

overpayment was calculated).

11 As the case is not in posture for decision regarding the amount of overpayment, the issues of waiver and recovery 

are moot. See S.F., Docket No. 18-0003 (issued April 19, 2018); see also R.L., Docket No. 11-1251 (issued 

January 27, 2012).
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CONCLUSION

The Board finds that this case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the August 20, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded 

for further proceedings consistent with this opinion. 

Issued: June 14, 2019

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