United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Sunrise, FL, Employer

__________________________________________

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Docket No. 20-0976

Issued: January 26, 2021

Appearances: Case Submitted on the Record

Joanne Wright, for the appellant1

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 April 2, 2020 appellant, through her representative, filed a timely appeal from a 

February 26, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

 

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 record also contains a January 17, 2020 OWCP decision concerning an overpayment of compensation in the 

amount of $11,770.11. She has filed a separate appeal from this decision, which will be considered under Docket No. 

20-0977.
2

Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.4

ISSUES

The issues are: (1) whether OWCP properly denied waiver of recovery of an overpayment 

of wage-loss compensation in the amount of $48,649.60 for the period January 1, 2012 through 

February 3, 2018; and (2) whether it properly required recovery of the overpayment by deducting 

$400.00 every 28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

This case has previously been before the Board.5 The facts and circumstances as set forth 

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

follows.

On July 23, 1994 appellant, then a 48-year-old mail carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained stress, anxiety, and depression causally related to 

factors of her federal employment. She stopped work on June 24, 1994. OWCP accepted 

appellant’s claim for post-traumatic stress disorder (PTSD) and a single episode of moderate-tosevere major depression.6

 It paid her wage-loss compensation for total disability.

By decision dated September 30, 1999, OWCP reduced appellant’s wage-loss 

compensation as her actual earnings as a modified mail handler effective March 1, 1999 fairly and 

reasonably represented her wage-earning capacity.7

The employing establishment subsequently withdrew appellant’s modified position under 

the National Reassessment Program (NRP). On April 18, 2011 OWCP modified the 

September 30, 1999 decision and paid her wage-loss compensation for total disability on the 

periodic rolls beginning April 10, 2011.

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that following the February 26, 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.

5 Docket No. 19-1082 (issued October 29, 2019).

6 By decision dated November 3, 1994, OWCP denied appellant’s claim as she had not established an injury in the 

performance of duty. By decision dated December 12, 1995, an OWCP hearing representative found that appellant 

had established compensable employment factors. He vacated the November 3, 1994 decision and remanded the case 

for development of the medical evidence. 

7

In decisions dated 1999 and 2000, OWCP denied appellant’s claim for intermittent wage loss for various periods.
3

On March 28, 2017 SSA provided OWCP with a FERS/SSA dual benefit calculation 

worksheet setting forth appellant’s SSA rate with FERS and without FERS commencing 

January 2012. Based on this information, OWCP determined that it should have offset $48,649.60 

from her wage-loss compensation.

In a preliminary overpayment determination dated February 22, 2018, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $48,649.60 

because it had failed to reduce her wage-loss compensation benefits for the period January 1, 2012 

through February 3, 2018 by the portion of her SSA benefits that were attributable to federal 

service. It further advised her of its preliminary determination that she was at fault in the creation 

of the overpayment because she had accepted payments that she knew or reasonably should have 

known to be incorrect. 

On March 12, 2018 appellant requested a telephonic prerecoupment hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on August 14, 2018. 

By decision dated November 23, 2018, OWCP’s hearing representative found that a 

$48,649.60 overpayment of compensation was created as appellant received wage-loss 

compensation from OWCP from January 1, 2012 through February 3, 2016 without an appropriate 

offset. She further found that appellant was at fault in the creation of the overpayment and thereby 

precluded from waiver of recovery of the overpayment. The hearing representative determined 

that the overpayment would be recovered by withholding $450.00 every 28 days from appellant’s 

continuing compensation payments.

Appellant appealed to the Board. By decision dated October 29, 2019, the Board affirmed 

in part and set aside in part the November 23, 2018 decision.8 The Board found that appellant had 

received an overpayment of compensation in the amount of $48,649.00 from January 1, 2012 

through February 3, 2018 because she concurrently received wage-loss compensation and SSA 

age-related retirement benefits without the appropriate offset. The Board further determined, 

however, that she was without fault in the creation of the overpayment and remanded the case for 

OWCP to consider waiver of recovery of the overpayment.

On January 10, 2020 OWCP notified appellant of its preliminary determination that she 

was without fault in the creation of the overpayment of compensation in the amount of $48,649.80 

that had occurred because it failed to offset her SSA age-related retirement benefits from her wageloss compensation from January 1, 2012 through February 3 2018. It provided her with an 

overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20). 

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.

In a Form OWCP-20 dated February 9, 2020, appellant advised that she had monthly 

income of $3,031.75 and assets of $17.56. She listed monthly expenses of $1,226.44 for a 

mortgage, $400.00 for food, $50.00 for clothing, $110.89 for electricity, $57.06 for water and 

sewer, $217.86 for telephone, internet and cable, and 61.39 for medical expenses. Appellant also 

 

8 Supra note 4.
4

provided monthly expenses on credit card and loan balances totaling $760.00. She listed expenses 

of $247.78 a month for prescriptions, supplements, and eye drops; $75.00 for tire replacement;

$82.64 for car insurance, $35.00 for merchandise, and $66.93 for a cell phone, which yielded total 

monthly expenses of $3,390.99.

Appellant submitted documentation supporting the monthly payment amounts for her 

mortgage, electricity, water, sewer, internet and cable, credit card, and car care expenses. She 

further submitted a bill indicating that she paid around $31.26 per month for a newspaper, and 

documentation showing that she paid $34.00 for vehicle service.

Regarding medical expenses, appellant provided the amounts that she paid for vitamin 

supplements and eye drops, which totaled $73.28 monthly. She provided photographs of the 

vitamin bottles. Appellant also submitted invoices showing the amounts that she paid every 90 

days for prescriptions that she received by mail, which totaled $154.98 monthly. She submitted a 

dermatologist bill for $193.51, a bill from a diagnostic laboratory for $11.39, and explanation of 

benefit forms from her health insurance provider dated January and February 2020 showing that 

she owed providers $52.98 and $101.66.

Appellant also listed the things that she needed to have done, but was unable to afford, 

included providing food and veterinary care for her animals, getting a haircut, seeing an 

ophthalmologist and dentist, and home repairs. She submitted a veterinary bill for $3,744.52 that 

was past due and banking statements for November and December 2019. Appellant also provided 

a yearly bill for homeowner’s insurance that indicated that it was paid by the mortgagee. 

By decision dated February 26, 2020, OWCP denied waiver of recovery of the 

overpayment of compensation. It found that she received $1,462.62 every 28 days after OWCP’s 

deductions of $450.00 for the current debt and $25.00 per month for separate overpayment, which 

it added to her monthly SSA benefits to find total monthly income of $3,153.50. OWCP reviewed 

the financial information submitted and determined that appellant had monthly expenses of 

$400.00 for food, $50.00 for clothing, $277.00 for electricity, $395.00 for minimum monthly credit 

card payments, $122.00 for water, $83.00 for car insurance, $66.00 for a cell phone, $70.00 in car 

repairs, $100.00 in monthly medical expenses, and $1,226.00 for a mortgage, which totaled 

$2,789.00. It disallowed her homeowner’s insurance, noting that it should be covered in her 

mortgage payment and determined that the amount claimed for telephone, cable, and internet was 

not reasonable. OWCP further determined that appellant’s credit card bills likely duplicated her 

medication copayments, newspaper, clothing, and various other expenses and thus found that these 

would not be separately considered. It found that her income exceeded her ordinary and necessary 

living expenses by more than the $50.00 allotted amount. OWCP found that appellant had $364.00 

in discretionary income, which increased to $418.67 as the repayment amount every 28 days was 

$50.00 less than the amount it was currently deducting. It determined that it would recover the 

overpayment by deducting $400.00 from her continuing compensation payments every 28 days.

LEGAL PRECEDENT -- ISSUE 1

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 
5

without fault and when adjustment or recovery would defeat the purpose of this subchapter or 

would be against equity and good conscience.”

9

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.10 An individual is deemed to need 

substantially all of his or her current income to meet current ordinary and necessary living expenses 

if monthly income does not exceed monthly expenses by more than $50.00.11 Also, 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.12 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.13

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.14

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 

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

determine the repayment schedule, if necessary.15

 

9 5 U.S.C. § 8129(b).

10 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 2018). 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).

11 Id. at Chapter 6.400.4(a)(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued 

January 10, 2020).

12 Supra note 10 at Chapter 6.400.4(a)(2) (September 2018).

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

14 20 C.F.R. § 10.437(a)(b).

15 Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).
6

ANALYSIS -- ISSUE 1

The Board finds that the case is not in posture for decision regarding whether OWCP

properly denied waiver of recovery of an overpayment of wage-loss compensation in the amount 

of $48,649.60 for the period January 1, 2012 through February 3, 2018.

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.16 

In a Form OWCP-20 dated February 9, 2020, appellant listed monthly income of $3,031.75 

and monthly expenses of $3,390.95. OWCP found that it paid her $1,462.62 every 28 days, or 

$1,584.50 monthly in compensation, which when added to her SSA income of $1,569.00 yielded 

monthly income of $3,153.50. It further noted that appellant had listed assets of $17.56, which is 

below the statutorily allowed resource base.17 

OWCP determined that appellant owed minimum monthly payments on credit cards of 

$395.00 and had monthly expenses of $400.00 for food, $50.00 for clothing, $277.00 for 

electricity, $122.00 for water, $83.00 for car insurance, $66.00 for a cell phone, $70.00 for car 

repairs, $100.00 for medication expenses, and $1,226.00 for a mortgage, for total monthly

expenses of $2,789.00. It found that the amount that appellant paid for a telephone, cable, and 

internet was not reasonable.18 OWCP determined that expenses for items such as some clothing, 

medication, newspapers, and miscellaneous other items were likely included in her credit card 

expenses. It concluded that appellant’s monthly income exceeded her monthly expenses by 

$364.00. OWCP, however, failed to explain exactly what expenses it had disallowed or how it 

calculated the amount of the minimum monthly payments that appellant owed for credit cards and 

loans. Appellant submitted documentation supporting that she owed minimum monthly payments 

for a total minimum monthly payments of $679.23. She further submitted documentation 

supporting that she incurred prescription drug expenses of $154.98 a month. OWCP, however, 

failed to specifically evaluate these expenses and explain what it was not allowing. Given these 

discrepancies, it is unclear whether appellant needs substantially all of her current income to meet 

ordinary and necessary living expenses.19

For the above reasons, the case is not in posture regarding whether OWCP properly denied 

waiver of recovery of the $48,649.60 overpayment of compensation.20 The case will be remanded 

for OWCP to obtain updated financial information and properly determine whether appellant is 

 

16 See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

17 Supra note 12.

18 The Board notes that, since the issuance of OWCP’s February 26, 2020 decision, OWCP’s procedures have been 

revised to include basic cable and internet service as ordinary and necessary living expenses. See Federal (FECA) 

Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 6.400.4(b)(2)(a) 

(September 2020).

19 See S.D., Docket No. 19-0618 (issued October 29, 2019).

20 Id.
7

entitled to waiver of recovery of the overpayment. Following this and any further development 

deemed necessary, it shall issue a de novo decision.21

CONCLUSION

The Board finds that the case is not in posture for decision regarding OWCP’s properly 

denied waiver of recovery of an overpayment of wage-loss compensation in the amount of 

$48,649.60 for the period January 1, 2012 through February 3, 2018.

ORDER

IT IS HEREBY ORDERED THAT the February 26, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: January 26, 2021

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

 

21 In light of the Board’s disposition regarding the denial of waiver, the issue of recovery of the overpayment is 

moot.