United States Department of Labor

Employees’ Compensation Appeals Board

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A.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Baton Rouge, LA, Employer

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Docket No. 19-1411

Issued: March 2, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On June 17, 2019 appellant filed a timely appeal from a June 6, 2019 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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the June 6, 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 appellant received an overpayment of compensation in the 

amount of $1,556.64 for the period June 9 through November 23, 2018 for which she was without 

fault; and (2) whether OWCP properly denied waiver of recovery of the overpayment. 

FACTUAL HISTORY

On March 29, 2017 appellant, then a 35-year-old city carrier assistant (irregular employee), 

filed a traumatic injury claim (Form CA-1) alleging that she fractured her left arm on March 27, 

2017 when she fell from a top step of a residence after delivering a parcel in the performance of 

duty. She stopped work on March 27, 2017. OWCP accepted the claim for abrasion of left upper 

arm; displaced fracture of head of left radius, closed fracture; displaced fracture of left radial 

styloid process, closed fracture; laceration without foreign body of other part of head; and radial 

collateral ligament sprain of left elbow. Appellant received continuation of pay (COP) from 

March 30 to May 13, 2017 and OWCP paid wage-loss benefits on the supplemental roll from 

May 14 through June 24, 2017. She received compensation on the periodic rolls from June 25

until November 11, 2017. On October 28, 2017 appellant’s appointment was converted to that of 

a full-time city carrier. She returned to full-time limited-duty work on November 14, 2017. 

OWCP paid appellant intermittent wage-loss compensation on the supplemental rolls from 

November 12, 2017 through March 29, 2019. 

Appellant submitted claims for compensation (Form CA-7) for intermittent disability for 

the period June 9 through November 23, 2018. OWCP processed those claims. 

The record contains overpayment worksheets and computer printouts describing 

appellant’s entitlement to compensation for the period June 9 through November 23, 2018, during 

which she worked an intermittent work schedule. Appellant’s weekly pay rate of her date-ofinjury position was higher than her pay rate in her modified city carrier position. For the period 

June 9 through November 23, 2018, she received $3,165.12 in compensation for intermittent time 

lost. However, appellant’s entitlement to compensation for that period, utilizing the Shadrick

formula, was $1,608.48.3 This amounted to an overpayment of $1,556.64. 

On May 6, 2019 OWCP issued a preliminary determination that appellant was overpaid 

benefits in the amount of $1,556.64 for the period June 9 through November 23, 2018 because it 

had paid compensation based on intermittent hours lost without utilizing the Shadrick formula to 

calculate wage loss. It noted that appellant did not work a regular schedule on the date of injury

as she was an irregular employee. OWCP explained that, when an employee with an intermittent 

or irregular work schedule submits a claim for intermittent hours lost, entitlement for the claimed 

period must be computed using the Shadrick formula. It found that appellant was without fault in 

the creation of the overpayment. OWCP advised that she could submit evidence challenging the 

fact, amount, or finding of fault and that she could request waiver of recovery of the overpayment. 

 

3 The formula for determining loss of wage-earning capacity based on actual earnings was developed in the 

Albert C. Shadrick decision, 5 ECAB 376 (1953) and codified at 20 C.F.R. § 10.403. OWCP calculates an employee’s 

wage-earning capacity in terms of percentage by dividing the employee’s earnings by the current pay rate for the dateof-injury job. 
3

Additionally, it informed her that within 30 days she could request a telephone conference, a final 

decision based on the written evidence, or a prerecoupment hearing. OWCP requested that 

appellant complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and 

submit supporting financial documentation. No evidence was received pertaining to appellant’s 

financial circumstances. 

By decision dated June 6, 2019, OWCP finalized its preliminary overpayment 

determination, finding that appellant had received an overpayment of compensation in the amount 

of $1,556.64 for the period June 9 through November 23, 2018 because it failed to utilize the 

Shadrick formula to calculate wage loss based on intermittent hours lost. It determined that she 

was without fault in the creation of the overpayment, but denied waiver of recovery of the 

overpayment of compensation based on the financial information provided. OWCP required 

recovery in full within 30 days.

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 

performance of duty.4

Title 20 of the Code of Federal Regulations, section 10.500 of OWCP regulations provide 

that compensation for wage loss due to disability is available only for any periods during which 

an employee’s work-related medical condition prevents him or her from earning the wages earned 

before the work-related injury.5

Under OWCP’s procedures, if a claimant with an intermittent or irregular work schedule 

submits a claim for intermittent hours lost, the claims examiner should compute entitlement for 

that period using the Shadrick formula.6 

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

ANALYSIS -- ISSUE 1

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

$1,556.64 for the period June 9 through November 23, 2018 for which she was without fault.

 

4 5 U.S.C. § 8102(a).

5 20 C.F.R. § 10.500.

6 See supra note 3. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 

2.901.7(c)(2) (March 2014). 

7 5 U.S.C. § 8129(a).
4

The record contains documentation regarding appellant’s employment that establishes that 

appellant was an irregular employee and worked intermittent hours during the period in question. 

OWCP’s procedures indicate that the Shadrick formula should be used in calculating 

compensation for claimants with intermittent or irregular hours.8 In applying the Shadrick formula 

to determine appellant’s entitlement to intermittent compensation for the period June 9 through 

November 23, 2018, it properly calculated that appellant was entitled to $1,608.48. However, she 

received $3,165.12 for the above period without use of the Shadrick formula. This properly 

amounted to an overpayment of $1,556.64. The Board further notes that appellant has not 

contested the fact or amount of the overpayment. 

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 

recovery would defeat the purpose of FECA or would be against equity and good conscience.9 

The waiver or refusal to waive recovery of an overpayment of compensation by OWCP is a matter 

that rests within OWCP’s discretion pursuant to statutory guidelines.10

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.11 Additionally, 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.12

OWCP’s implementing 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 the purpose of FECA or be against equity and good conscience. The 

information is also used to determine the repayment schedule, if necessary.13 Failure to submit 

 

8 See supra note 6.

9 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued 

June 12, 2019).

10 A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

11 20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base 

increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional 

dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400.4(a)(2) (September 2018).

12 Id. at § 10.437(a)(b).

13 Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).
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the requested information within 30 days of the request shall result in a denial of waiver of 

recovery, and no further request for waiver shall be considered until the requested information is 

furnished.14

ANALYSIS -- ISSUE 2

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

The fact that OWCP may have been negligent in the creation of the overpayment does not 

entitle appellant to waiver of recovery of the overpayment.15 As OWCP found appellant without 

fault in the creation of the overpayment, waiver must be considered, and repayment is still required 

unless recovery of the overpayment would defeat the purpose of FECA or be against equity and 

good conscience.16 Appellant, however, did not provide the requisite financial documentation to 

OWCP.17

In its preliminary determination dated May 6, 2019, OWCP clearly explained the 

importance of providing the completed Form OWCP-20 and supporting financial documentation. 

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 Form OWCP-20 or 

any necessary financial documentation supporting her income and expenses. 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. It

was, therefore, required to deny waiver of recovery of the overpayment.18

CONCLUSION

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

$1,556.64 for the period June 9 through November 23, 2018 for which she was without fault. The 

Board further finds that OWCP properly denied waiver of recovery of the overpayment.

 

14 Id. at § 10.438(b).

15 See L.D., Docket No. 19-0606 (issued November 21, 2019); R.B., Docket No. 15-0808 (issued October 26, 2015).

16 5 U.S.C. § 8129.

17 20 C.F.R. § 10.438.

18 Id. at § 10.438; see E.M., Docket No. 19-0857 (issued December 31, 2019); L.D., supra note 15.
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ORDER

IT IS HEREBY ORDERED THAT the June 6, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 2, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board