United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Columbus, MS, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-1318

Issued: July 31, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 26, 2019 appellant filed a timely appeal from an April 26, 2019 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 The Board notes that the record also contains an April 29, 2019 decision denying wage-loss compensation for the 

period September 1 through 24, 2015. By decision dated January 11, 2019, OWCP had denied her claim for 

compensation for this period. On February 10, 2019 appellant requested reconsideration. By decision dated April 29, 

2019, OWCP denied modification of its prior decision. Appellant did not file an appeal of the April 29, 2019 decision 

with the Board, and the record contains further development on that decision, including that on November 12, 2019 

she requested reconsideration with OWCP from that decision. 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the April 26, 2019 decision, OWCP 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.
2

ISSUES

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

overpayment of compensation in the amount of $1,232.03 for the period September 28 through 

November 24, 2015 because the pay rate used to determine her compensation was calculated 

incorrectly, for which she was without fault; and (2) whether OWCP properly denied waiver of 

recovery of the overpayment.

FACTUAL HISTORY

On February 4, 2016 appellant, then a 45-year-old lead sales and service associate, filed a 

traumatic injury claim (Form CA-1) alleging that on May 13, 2015 she injured her lower back 

when lifting an armload of flats from a tub on the floor while in the performance of duty. She

stopped work on September 9, 2015, and returned to full-duty work without restrictions on 

February 25, 2016. On August 9, 2018 OWCP accepted the claim for herniated intervertebral disc 

at L5-S1. In a separate decision of even date, it denied continuation of pay, as appellant had not 

reported the injury on a form approved by OWCP within 30 days following the injury.

On September 5, 2018 appellant filed a claim for compensation (Form CA-7) for 

intermittent leave without pay (LWOP) for the period September 1, 2015 through 

February 24, 2016. In attached documentation, S.C., an employing establishment human 

resources specialist, indicated that appellant worked a fixed 40-hour per week schedule Monday 

through Friday, and that at the time she stopped work on September 1, 2015, her base pay was 

$57,987.00 per year with additional holiday pay of $27.88 per hour. Time analysis forms (Form 

CA-7a) showed the number of hours of leave claimed by appellant for this period. S.C. noted that 

appellant had been paid eight hours for the Thanksgiving holiday on November 26, 2015, and 

noted other unpaid holidays during the claimed time period. 

In a pay rate memorandum dated November 5, 2018, OWCP calculated appellant’s pay 

rate for compensation purposes. It noted that her annual salary was $57,987.00 and, by dividing 

that figure by 52, her calculated base weekly rate was $1,115.13. In an automated compensation 

payment system (ACPS) note of even date, for the period September 28 through November 24,

2015, OWCP issued a gross payment on the supplemental role for $7,391.80, based on a weekly 

pay rate of $1,338.17.

By letter dated November 30, 2018, appellant indicated that there was incorrect 

information on a compensation check for the period September 28 to November 24, 2018. On 

January 2, 2019 she forwarded OWCP an e-mail that she had sent S.C. that day. Appellant 

indicated that, for the period September 28 through November 24, 2015, she had been paid at a 

rate of $1,338.17, but her correct weekly pay was $1,115.13. In an e-mail dated January 3, 2019, 

S.C. indicated that she had included holiday premium pay of $27.88 on appellant’s Form CA-7 to 

advise OWCP that she had received pay from the employing establishment for the holidays while 

in an LWOP status. She explained that she did so in order that OWCP would not pay her again

and found it unclear why OWCP included this in computing appellant’s wage-loss compensation. 

In a manual adjustment form dated March 14, 2019, a claims examiner calculated that 

appellant had been overpaid in the amount of $1,232.03 for the period September 28 through 

November 24, 2015. 
3

By letter dated March 15, 2019, OWCP informed appellant that her pay rate for 

compensation purposes was established on November 5, 2015, based on her pay rate on 

September 28, 2015, the beginning date of temporary total disability. It noted that the pay rate 

provided by the employing establishment was $57,987.00 annually with some holiday pay that 

yielded a weekly pay rate of $1,338.17, but that, based on additional information it had received, 

this weekly pay rate was incorrect. OWCP then recalculated appellant’s weekly pay rate without 

a holiday premium which yielded a weekly pay rate of $1,115.13. It indicated that payments for 

November 25, 2015 and for the period November 27, 2015 through February 24, 2016 were paid 

at the correct pay rate. However, the payment for the period September 28 through November 24, 

2015 was paid at the incorrect pay rate of $1,338.17 weekly, which had resulted in an overpayment 

of compensation. 

On March 15, 2019 OWCP issued a preliminary determination, finding that an 

overpayment of compensation in the amount of $1,232.03 had been created because the pay rate 

used to determine appellant’s compensation for the period September 28 through November 24, 

2015 was calculated incorrectly. It found that she was without fault in the creation of the 

overpayment. OWCP explained its calculation of the overpayment.4 It forwarded an overpayment 

action request and an overpayment recovery questionnaire (Form OWCP-20) for appellant’s

completion. OWCP explained that she was to attach supporting financial documentation including 

income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other 

records. It advised appellant that it would deny waiver of recovery if she failed to furnish the 

requested financial information and it afforded her 30 days to submit the requested information.

In a correspondence dated March 19, 2019, appellant maintained that OWCP had 

miscalculated her overpayment. She indicated that it should have calculated her overpayment on 

42 workdays and not 58 calendar days and thus, the overpayment of compensation should have 

been $1,147.07. No additional evidence was received.

By decision dated April 26, 2019, OWCP finalized the preliminary determination that 

appellant received an overpayment of compensation in the amount of $1,232.03 for the period 

September 28 through November 24, 2015 because she was paid FECA compensation based on 

an incorrect pay rate. It found that appellant was without fault in the creation of the overpayment,

but denied waiver of recovery because she had not submitted the evidence requested in the

March 15, 2019 preliminary determination. 

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 

 

4 OWCP multiplied her correct and incorrect base pay rates of $1,338.71 and $1,115.13 respectively by 2/3, which 

resulting in weekly compensation rates of $892.11 and $743.45. It divided each of those rates by seven days to 

determine a daily compensation rate of $127.44 and $106.20, respectively, and then multiplied each by the 58 days of 

disability (from September 28 through November 24, 2015) for a total compensation of $7,391.80 under the incorrect 

pay rate, which it had paid, and $6,159.77, the correct pay rate it should have paid. OWCP determined the difference 

between the incorrect compensation paid and the correct compensation, and determined that an overpayment of 

compensation in the amount of $1,232.03 had been created. 
4

performance of duty.5 Section 8129(a) 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.”

6

 Section 8116 limits the right of an employee to receive 

compensation. While an employee is receiving compensation, he or she may not receive salary, 

pay, or remuneration of any type from the United States.7 

Once the proper time period is determined, section 8114(d)(1)(A) provides a specific 

methodology for determining pay rate: 

“(d) Average annual earnings are determined as follows:

(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 procedures provide that, if the employee did not stop work on the date of injury 

or immediately afterwards, defined as the next day, the record should indicate the pay rate for the 

date of injury and the date disability began. The greater of the two should be used in computing 

compensation and if they are the same, the pay rate should be effective on the date disability 

began.9 In computing the weekly pay rate for an employee who receives an annual salary, 

including postal workers, the annual salary is divided by 52.10 The procedures further indicate that 

administrative inclusions should be included in computing an employee’s pay rate, including night 

differential, shift differential, holiday pay, and premium pay for weekend work.11

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $1,232.03 for the period September 28 through November 24, 

2015, because the pay rate used to determine her compensation was calculated incorrectly, for 

which she was without fault.

 

5 5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8116(a); see G.H., Docket No. 19-0770 (issued March 5, 2020); Danny E. Haley, 56 ECAB 393 (2005).

8 5 U.S.C. § 8114(d)(1)(A).

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5a(3) 

(September 2011).

10 Id. at Chapter 2.900.10a (March 2011).

11 Id. at Chapter 2.900.6b (March 2011).
5

Herein, OWCP initially paid appellant total disability compensation for the period 

September 28 through November 24, 2015 using a weekly pay rate of $1,338.71, which included 

premium holiday pay. However, on January 2, 2019, appellant forwarded OWCP an e-mail she 

had sent S.C. that day in which she indicated that her weekly pay rate was incorrect. She also 

forwarded an e-mail dated January 3, 2019 in which S.C. indicated that she had included holiday 

premium pay of $27.88 on appellant’s Form CA-7 to advise OWCP that it had paid her for the 

holidays while she was in LWOP status. Appellant explained that she did this so that OWCP 

would not pay her again and indicated that she found it unclear why OWCP included this in 

computing appellant’s wage-loss compensation. 

As noted, while an employee is receiving FECA compensation, he or she may not receive 

salary, pay or remuneration of any type from the United States.12 As such, because the employing 

establishment had paid appellant for holidays during the period September 28 through 

November 24, 2015, when OWCP recalculated appellant’s pay rate for compensation purposes, it 

properly excluded her premium holiday pay and recalculated her weekly compensation rate in 

determining the amount of overpayment for this period. The Board further finds that, as provided 

in its procedures, OWCP properly calculated the amount of the overpayment. It properly 

determined appellant’s weekly pay by dividing her annual salary of $57,987.00 by 52 to reach a 

weekly salary of $1,115.13. OWCP correctly determined a daily amount by utilizing 7 calendar 

days which it multiplied by 58 days, the period of the overpayment, to find an overpayment of 

compensation in the amount of $1,232.03.13 As appellant received compensation based on the 

incorrect rate of pay that included holiday premium pay when she had already received holiday 

pay from the employing establishment, she received an overpayment of compensation for the 

period September 28 through November 24, 2015.14

The record demonstrates that appellant’s FECA compensation was based on an incorrect 

pay rate for the period September 28 through November 24, 2015 as OWCP paid her $7,391.80 in 

gross compensation when she was only entitled to $6,159.77. The Board therefore finds that 

OWCP properly determined that she received an overpayment of compensation in the amount of 

$1,232.03.15 

On appeal appellant alleges that she should be paid by workdays, not calendar days, and 

therefore the amount of the overpayment was incorrect. As explained above, OWCP correctly 

determined the amount of the overpayment of compensation. 

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment of compensation shall be recovered 

by OWCP 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 

 

12 Supra note 9.

13 See L.D., Docket No. 19-0320 (issued July 26, 2019).

14 Id.

15 Id.
6

conscience.16 Section 10.438 of OWCP’s regulations provides that 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. Failure 

to submit the requested information within 30 days of the request shall result in denial of waiver.17

ANALYSIS -- ISSUE 2

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

compensation.

As OWCP found appellant not at fault in the creation of the overpayment, waiver of 

recovery of the overpayment 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. Appellant, however, had the responsibility to provide financial information to 

OWCP,18 and she did not do so.

In its preliminary determination dated March 14, 2019, OWCP requested that appellant 

provide a completed Form OWCP-20 and supporting financial documentation, including copies of 

income tax returns, bank account statements, bills, pay slips, and any other records. It advised her

that it would deny waiver of recovery if she failed to furnish the requested financial information 

within 30 days. Appellant maintained that the amount of the overpayment was incorrect, but did 

not provide the requested Form OWCP-20 or submit the financial information necessary for 

OWCP to determine if recovery of the overpayment would defeat the purpose of FECA or be 

against equity and good conscience.

As appellant did not submit the information required under 20 C.F.R. § 10.438 of OWCP’s 

regulations, which was necessary to determine her eligibility for waiver, OWCP properly denied 

waiver of recovery of the overpayment.

CONCLUSION

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

of compensation in the amount of $1,232.03 for the period September 28 through November 24, 

2015, because the pay rate used to determine her compensation was calculated incorrectly, for 

which she was without fault. The Board further finds that OWCP properly denied waiver of

recovery of the overpayment. 

 

16 5 U.S.C. § 8129.

17 20 C.F.R. § 10.438; see D.M., Docket No. 19-1369 (issued June 30, 2020).

18 Id. at § 10.438; P.W., Docket No. 19-1984 (issued June 11, 2020).
7

ORDER

IT IS HEREBY ORDERED THAT the April 26, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 31, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board