United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.C., Appellant

and

U.S. POSTAL SERVICE, SAINT PETERS POST 

OFFICE, St. Peters, MO, Employer

__________________________________________

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Docket No. 21-0612

Issued: December 2, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 12, 2021 appellant filed a timely appeal from a December 17, 2020 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

ISSUE

The issue is whether OWCP properly denied waiver of recovery of the overpayment of 

compensation in the amount of $14,822.09.

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the December 17, 2020 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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

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

are as follows.

On February 1, 2014 appellant, then a 35-year-old clerk, filed a notice of traumatic injury 

(Form CA-1) alleging that she sustained bilateral knee and back injuries on that date when she fell 

on ice in the employing establishment parking lot in the performance of duty. OWCP accepted 

the claim for lumbosacral, cervical, bilateral knee and leg sprains, and tear of the right knee lateral 

meniscus. It paid appellant intermittent wage-loss compensation on the supplemental rolls from 

March 27 to November 14, 2014.

On April 26, 2019 OWCP paid appellant schedule award compensation in the net amount 

of $33,310.89 for the period June 29, 2018 through March 30, 2019. On April 27, 2019 it paid her 

schedule award compensation in the net amount of $3,446.00 for the period March 31 through 

April 27, 2019. 

By decision dated May 3, 2019, OWCP granted appellant a schedule award for nine percent 

permanent impairment of the left lower extremity. The award was in the amount of $21,934.80 

and ran for a period of 25.92 weeks from June 29 through December 27, 2018. This decision also 

noted that appellant had received payment in excess of the schedule award and she would be 

notified of the overpayment under separate cover. 

In a preliminary overpayment determination dated May 3, 2019, OWCP notified appellant 

that she had received an overpayment of compensation in the amount of $14,822.09 for the period 

December 28, 2018 through April 27, 2019 because she was overpaid for her schedule award. It 

explained that she received $14,822.09 in error because payment of her nine percent schedule 

award had been extended from the correct end date of December 27, 2018 to April 27, 2019, 

creating an overpayment for the period December 28, 2018 through April 27, 2019. OWCP 

advised appellant that she was without fault in the creation of the overpayment. It informed her 

of her appeal rights and instructed her to complete an enclosed overpayment recovery 

questionnaire (Form OWCP-20) and submit supporting documentation within 30 days.

In a memorandum to the file dated May 6, 2019, a claims examiner noted that appellant’s 

schedule award was supposed to be paid for nine percent permanent impairment of the left lower 

extremity, with a start date of June 29, 2018 for a period of 181.44 days (25.92 weeks) with an end 

date of December 27, 2018. An error extended the period of the award. As such, there was an 

overpayment for the period December 28, 2018 through April 27, 2019. The claims examiner 

noted that appellant had been paid $33,310.89 initially and $3,446.00 subsequently on this 

schedule award, totaling compensation in the amount of $36,756.89. The total schedule award 

payment for 181.44 days was $21,934.80. The difference between these two figures, $14,822.09, 

represented the amount of the overpayment. 

3 Docket No. 20-0302 (issued November 12, 2020).
3

On May 16, 2019 appellant requested a decision based on the written evidence regarding 

possible waiver of recovery of the overpayment. She argued that she should be able to keep the 

overpaid amount because she was without fault in creation of the overpayment. Appellant 

submitted a completed Form OWCP-20 outlining her income, assets, and expenses, including 

supporting documentation. She indicated that she had two dependents. Appellant furtherindicated 

that her total monthly income included $1,685.00 in Social Security disability benefits and a total 

of $7,900.00 in monthlyhousehold income with her spouse’s income included. She listed monthly 

expenses and debt payments totaling $8,402.00. Appellant indicated that her assets included: 

$20.00 cash on hand, checking account balances of $27,571.46 and $13,850 .00; and savings 

account balances of $1,856.00 and $172.95, for a total of $43,469.46.

OWCP issued a second preliminary overpayment determination on July 2, 2019. The 

overpayment amount remained the same at $14,822.09 for the period December 28, 2018 through 

April 27, 2019. OWCP, however, advised appellant that she was at fault in the crea tion of the 

overpayment, because she accepted a payment she knew or reasonably should have known was 

incorrect. It noted that it had placed her on notice of the overpayment of compensation by 

telephone call on April 25, 2019.

By decision dated September 24, 2019, OWCP finalized the preliminary overpayment

determination, finding that appellant was overpaid in the amount of $14,822.09 for the period 

December 28, 2018 through April 27, 2019 because she received continued schedule award 

compensation after her schedule award had expired on December 27, 2018. It found that she was 

at fault in the creation of the overpayment, because she had received a compensation payment 

deposited by electronic funds transfer (EFT) and over 30 days had elapsed since the EFT dep osit 

was made, and because the dates of the schedule award overlapped with the ending date and she 

had been placed on notice that she was not entitled to compensation after December 27, 2018. 

OWCP instructed that the overpayment be recovered in full.

On November 25, 2019 appellant appealed the September 24, 2019 decision to the Board 

By decision dated November 12, 2020, the Board affirmed OWCP’s September 24, 2019 decision 

in part and reversed it in part.4 The Board found that OWCP properly determined that appellant 

received an overpayment of compensation in the amount of $14,822.09 for the period 

December 28, 2018 through April 27, 2019 due to receipt of duplicate schedule award 

compensation. However, the Board further found that OWCP improperly determined that 

appellant was at fault in the creation of the overpayment of compensation and reversed OWCP’s 

finding of fault. The Board concluded that while an OWCP representative left a voice mail

message for appellant on April 25, 2019 that an overpayment in some amount had been created, 

prior to actual payment by EFT, the schedule award decision containing the precise period and 

amount of the schedule award compensation to which appellant was actually en titled was not 

issued until May 3, 2019, after the EFT had been made. The Board found that under these 

circumstances, the voice mail message alone was insufficient to establish that appellant knew prior 

to issuance of the actual schedule award decision that she had received an overpayment of 

4

Id.
4

compensation to which she was not entitled. The Board remanded the case for consideration of 

whether appellant was entitled to a waiver of recovery of the overpayment.

In a December 17, 2020 final overpayment decision, OWCP found that appellant was 

overpaid in the amount of $14,822.09 for the period December 28, 2018 through April 27, 2019 

because she received continued schedule award compensation after her schedule award had 

expired on December 27, 2018. It further found that she was without fault in the creation of the 

overpayment, but denied waiver of recovery because the evidence of record was insufficient to 

establish that recovery of an overpayment would defeat the purpose of FECA or be against equity 

and good conscience. OWCP required recovery of the overpayment in full within 30 days. 

LEGAL PRECEDENT

Section 8129(b) of FECA provides: “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.”

5

Recovery of an overpayment will defeat the purpose of FECA when 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.6 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.7

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 in 

attempting to repay the debt or when an 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.8

OWCP’s regulations provide 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 

5

5 U.S.C. § 8129(b).

6

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her 

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

expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 --Debt Management, Initial Overpayment 

Determinations, Chapter 6.400.4a(3) (September 2020). OWCP’s procedures further provide that 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. Id. at Chapter 6.400.4a(2).

7

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

8

20 C.F.R. § 10.437(a)(b).
5

the purpose of FECA or be against equity and good conscience. The information is also used to 

determine the repayment schedule, if necessary.9

ANALYSIS

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

compensation in the amount of $14,822.09.

The Board preliminarily notes that it found in its November 12, 2020 decision that 

appellant received an overpayment of compensation in the amount of $14,822.09 for the period 

December 28, 2018 through April 27, 2019 for which she was without fault. Findings made in 

prior Board decisions are res judicata absent further review by OWCP under section 8128 of 

FECA.

10

 Therefore, the Board’s prior finding regarding the fact and amount of the overpayment 

is not subject to further consideration.

On May 16, 2019 appellant submitted a completed Form OWCP-20 outlining her income, 

assets, and expenses, and provided supporting documentation. She indicated that she had two 

dependents and that her assets included: $20.00 cash on hand, checking account balances of 

$27,571.46 and $13,850.00; and savings account balances of $1,856.00 and $172.95,for total of 

$43,469.46 in assets.

The Board has reviewed appellant’s reported financial information and supporting 

documentation and finds that her assets of $43,469.46 exceeded the resource base of $10,300.00 

for an individual with a spouse or one dependent, plus $1,200.00 for each additional dependent, as 

provided in OWCP’s procedures.11 Because appellant has not met the second prong of the twoprong test, of whether recovery of the overpayment would defeat the purpose of FECA, it is not 

necessary for OWCP to consider the first prong of the test, i.e., whether she needs substantially all 

of her current income to meet ordinary and necessary living expenses.12 She has not established 

that she was entitled to waiver on the basis of defeating the purpose of FECA. 13

Additionally, the evidence does not demonstrate that recovery of the overpayment would 

be against equity and good conscience. Appellant has not submitted evidence to substantiate that 

she would experience severe financial hardship in attempting to repay the debt, or that in reliance 

on such payment she gave up a valuable right or changed her position for the worse. Therefore, 

9

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

10 T.W., Docket No. 20-0836 (issued July 21, 2021); ClintonE. Anthony, Jr., 49 ECAB 476, 479 (1998). See 20 

C.F.R. § 501.6(d).

11 Supra note 6.

12 See S.W., Docket No. 20-0363 (issued November 23, 2020); M.H., Docket No. 19-1497 (issued 

September 9, 2020).

13 N.B., Docket No. 20-0727 (issued January 26, 2021); R.D., Docket No. 19-1598 (issued April17, 2020); R.C., 

Docket No. 19-0845 (issued February 3, 2020).
6

OWCP properly found that recovery of the overpayment would not defeat the purpose of FECA 

or be against equity and good conscience.14

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 OWCP properly 

denied waiver of recovery of the overpayment.15

CONCLUSION

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

compensation in the amount of $14,822.09.

ORDER

IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 2, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

14 N.J., Docket No. 19-1170 (issued January 10, 2020); V.T., Docket No. 18-0628 (issued October 25, 2018).

15 With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing 

those cases where OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is 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. R.W., Docket No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 

55 ECAB 610 (2004).