United States Department of Labor

Employees’ Compensation Appeals Board

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G.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PATROL,

Sonoita, AZ, Employer

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Docket No. 19-0770

Issued: March 5, 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 February 22, 2019 appellant filed a timely appeal from a September 28, 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 $2,896.81 for the period June 13, 2016 to 

October 2, 2017, for which he was not at fault; (2) whether it properly denied waiver of recovery 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the September 28, 2018 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

evidence for the first time on appeal. Id. 
2

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

deducting $200.00 every 28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On January 27, 2016 appellant, then a 35-year-old patrol agent, filed a traumatic injury 

claim (Form CA-1) alleging that on January 26, 2016 he injured his ankles, knees, and left elbow 

in the performance of duty. He explained that an unstable rock shifted and caused his ankles to 

roll, and he fell forward and landed on his knees and left elbow. Appellant stopped work on 

January 27, 2017. On March 26, 2016 OWCP accepted appellant’s claim for cervical region 

radiculopathy, left elbow contusion, sprain of an unspecified ligament of the right ankle, and strain 

of an unspecified muscle, fascia, and tendon in the left shoulder and upper left arm. Acceptance 

of his claim was later expanded to include left ulnar nerve lesion. Appellant received wage-loss 

compensation on the supplemental rolls as of June 13, 2016. He returned to part-time light-duty 

work on July 19, 2016. OWCP paid appellant wage-loss compensation based upon his loss of 

wage-earning capacity as of February 12, 2017.

In August 8, 2016 CA-110 notes, OWCP indicated that, as of June 13, 2016, appellant’s 

annual base pay was $80,593.00.

An October 14, 2016 OWCP memorandum indicated that it updated appellant’s pay rate 

information by listing appellant’s pay for the year prior to his date of injury of January 26, 2016. 

OWCP listed appellant’s base pay as $80,593.00, night differential as $2,097.50, Sunday premium 

pay as $2,691.81, holiday pay as $2,569.28 and administratively uncontrollable overtime (AUO)

as $5,589.36. The AUO was reflected as Integrated Federal Employees’ Compensation System 

(iFECS) weekly rate of $107.49. OWCP noted that, as appellant was a level 1 border patrol agent, 

his base salary was multiplied by 25 percent, equaling $100,741.25. It calculated the weekly 

payment amount of appellant’s base pay multiplied by 25 percent, night differential, Sunday 

premium pay, holiday pay, and AUO. It then added these totals, and multiplied by the augmented

compensation rate to calculate the weekly pay rate of $2,186.33

On an October 17, 2016 supplemental rolls payment worksheet, OWCP calculated the 

difference between what it had already paid in wage-loss compensation benefits between June 13

and August 17, 2016, when it used appellant’s base pay rate of $80,593.00 in its calculations, and 

the amount it would have paid appellant had it used $100,741.25 as appellant’s adjusted base 

salary. On that date OWCP issued a compensation payment to correct its identified underpayment. 

November 1, 2016 Form CA-110 notes reflect that the employing establishment related that level 

1 and level 2 border agents were paid 8 hours of holiday pay/leave and that, as appellant was level

1 agent, he worked 10 hours a day, which included 8 hours of regular pay and 2 hours of overtime

pay.

In a January 25, 2018 letter, OWCP informed appellant that it made a preliminary 

determination that he received an overpayment of compensation in the amount of $2,896.81 for 

the period June 13, 2016 to October 2, 2017 because it included premium pay as calculated under 

the Border Patrol Agent Pay Reform Act (BPAPRA) of 2014, but also included AUO in his 

payments. It calculated the overpayment by subtracting appellant’s weekly AUO of $107.49 from 

appellant’s weekly pay rate of $2,186.33 to find his correct weekly pay rate of $2,078.84. OWCP 

recalculated appellant’s total wage-loss compensation from the period June 13, 2016 to October 2, 
3

2017 using the corrected weekly pay rate and then subtracted that number from the total wage-loss 

compensation appellant had received for that period. It found that appellant was not at fault in the 

creation of the overpayment because he was not aware nor could he have reasonably been expected 

to know that OWCP paid the compensation incorrectly. Additionally, OWCP informed appellant 

that within 30 days he could request a telephone conference, a final decision based on the written 

evidence, or a prerecoupment hearing. It requested that appellant complete an enclosed 

overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial 

documentation.

On February 21, 2018 appellant requested a telephone conference with OWCP. He noted 

that he contested the overpayment because he disagreed that it occurred. Appellant explained that 

the information relayed to OWCP about his earnings was accurate, and the letter he received from 

OWCP indicated that the overpayment was not his fault. He requested waiver of recovery of the 

overpayment.

An accompanying February 20, 2018 OWCP-20 indicated that appellant’s total monthly 

income was $4,600.00, with one dependent. Appellant’s total monthly expenses were noted as 

$4,050.00 and he listed $1,600.00 in assets. He explained that he was without fault in the creation 

of his overpayment because he was not involved in calculating his wage-loss compensation, and 

that he was under the impression that he was being paid the correct amount.

By decision dated September 28, 2018, OWCP finalized the overpayment of compensation 

in the amount of $2,896.81 for the period June 13, 2016 to October 2, 2017. It determined that 

appellant was not at fault in the creation of the overpayment, but denied waiver of recovery of the 

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

overpayment through monthly payments of $200.00.

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.3 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.”

4

The 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.5

In computing pay rate, section 8114(e) provides for the inclusion of certain premium pay 

received and, where the evidence indicates additional amounts received in Sunday premium or 

night differential pay fluctuated or may have fluctuated, OWCP determines the amount of 

 

3 5 U.S.C. § 8102(a).

4

Id. at 8129(a). 

5

Id. at § 8101(4).
4

additional pay received during the one-year period prior to injury.6 Section 8114(e)(1) provides 

that, in computing an employee’s monthly pay for compensation purposes, overtime pay is not 

included.7 OWCP has administratively determined that, while premium pay for AUO under 5 

U.S.C. § 5545(c)(2), is not included in pay rate calculations, AUO pay is replaced by the 

availability of the supplement of 25 percent of basic pay for criminal investigators pursuant to 5 

U.S.C. § 5545.

8

The relevant part of section 5545(c)(2) provides: 

“The head of an agency, with the approval of the [Office of Personnel Management 

(OPM)] may provide that -- an employee in a position in which the hours of duty 

cannot be controlled administratively, and which requires substantial amounts of 

irregular, unscheduled, overtime duty with the employee generally being 

responsible for recognizing, without supervision, circumstances which require the 

employee to remain on duty, shall receive premium pay for this duty on an annual 

basis instead of premium pay provided by other provisions of this subchapter, 

except for regularly scheduled overtime, night, and Sunday duty, and for holiday 

duty. Premium pay under this paragraph is an appropriate percentage, not less than 

10 percent nor more than 25 percent, of the rate of basic pay for the position, as 

determined by taking into consideration the frequency and duration of irregular, 

unscheduled overtime duty required in the position.”

9

ANALYSIS -- ISSUE 1

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

OWCP found that appellant received an overpayment of compensation in the amount of 

$2,869.81 for the period June 13, 2016 to October 2, 2017 because it incorrectly included his AUO 

pay of $5,589.36, a weekly FECA rate of $107.49 in calculating appellant’s pay rate. It has 

administratively determined that premium pay for AUO under 5 U.S.C. § 5545(c)(2), is not to be 

included in pay rate calculations for criminal investigators who receive the 25 percent premium 

pay adjustment to their basic pay rate.

10

OWCP has not properly explained how multiplying the number of weeks during the period 

June 13, 2016 through October 2, 2017 by $107.49 results in the amount of $2,869.81. The Board 

notes that the calculation of appellant’s overpayment should also explain how appellant’s receipt 

 

6 5 U.S.C. § 8114(e); Lottie M. Williams, 56 ECAB 302 (2005).

7

Id. at § 8114(e)(1); L.C., Docket No. 19-0310 (issued July 26, 2019); Calvin E. King, 51 ECAB 394 (2000).

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.6(b)(7) 

(March 2011).

9 5 U.S.C. § 5545(c)(2); see also FECA Program Memorandum No. 106 (issued October 30, 1969) (provides for 

inclusion of premium pay in pay rate for compensation purposes under section 5545(c)(2)); FECA Bulletin No. 89-26 

(September 29, 1989) (by administrative determination, pursuant to section 5545(c)(2), OWCP includes premium pay 

for AUO in computing compensation).

10 Supra note 8. 
5

of compensation based on his loss of wage-earning capacity during the period in question impacts 

the overpayment calculation. 

A claimant is entitled to an overpayment decision that clearly explains how the amount 

was calculated.11 As OWCP has not provided a clear explanation of its calculations, the Board 

finds that OWCP has not established the amount of the overpayment in question. Therefore, the 

case will be remanded to OWCP for such further development as deemed necessary to be followed 

by a de novo decision regarding the overpayment.12

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the September 28, 2018 decision of the Office of 

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

consistent with this opinion.

Issued: March 5, 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

 

11 E.R., Docket No. 19-1365 (issued December 23, 2019); see M.M., Docket No. 17-0560 (issued August 23, 

2017); R.H., Docket No. 08-2025 (issued July 20, 2009); see also O.R., 59 ECAB 432 (2008).

12 In light of the Board’s disposition of the first issue, the issues of waiver and recovery of overpayment are rendered 

moot.