United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Nashville, TN, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 20-0065

Issued: September 2, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 8, 2019 appellant filed a timely appeal from an April 15, 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 the case.2

 

1

5 U.S.C. § 8101 et seq. 

2 The Board notes that following the April15, 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

ISSUE

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

amount of $63,696.96 with regard to the period August 1, 2015 through January 6, 2018, for which 

he was without fault. 

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

below.

On June 3, 2004 appellant, then a 55-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he injured his lower back when lifting while in the performance 

of duty. OWCP accepted the claim for aggravation of lumbar degenerative disc disease. Appellant 

stopped work on June 13, 2012. OWCP paid him wage-loss compensation on the periodic rolls as 

of July 1, 2012.

In correspondence dated January 23, 2018, OWCP notified appellant that, based on 

information provided by Social Security Administration (SSA) regarding the amount of his SSA 

age-related retirement benefits attributable to federal service, his FECA benefits had been adjusted 

effective January 7, 2018. 

On January 23, 2018 OWCP issued a preliminary finding that an overpayment of 

compensation in the amount of $63,696.96 had been created. It explained that the overpayment 

occurred because a portion of appellant’s SSA age-related retirement benefits, for the period 

September 1, 2014 to January 6, 2018, was based on credits attributable to his federal service, and 

that this portion of his SSA benefit was a prohibited dual benefit. OWCP found him at fault in the 

creation of the overpayment.

By decision dated March 6, 2018, OWCP finalized the preliminary overpayment 

determination, finding an overpayment of compensation in the amount of $63,696.96, for which 

appellant was at fault. It required recovery of the overpayment by deducting $425.00 from his 

continuing compensation payments every 28 days. 

On April 17, 2018 appellant filed an appeal with the Board.4

By decision dated January 29, 2019, the Board affirmed the March 6, 2018 decision in part, 

as modified, and set aside the decision in part. The Board found that appellant received an 

overpayment of compensation in the amount of $63,696.95 for the period September 1, 2014 

through January 6, 2018 because he concurrently received SSA age-related retirement benefits and 

FECA wage-loss compensation without an appropriate offset. The Board further found, however, 

 

3 Docket No. 18-1009 (issued January 29, 2019).

4 Appellant elected to receive Office of Personnel Management (OPM) retirement benefits, effective January 23, 

2019, in lieu of compensation benefits under FECA.
3

that appellant was at fault in the creation of the overpayment only for the period September 1, 2014 

through July 31, 2015, and thereby precluded from waiver of recovery of the overpayment for that 

period. The Board found appellant without fault in the creation of the overpayment for the period

August 1, 2015 through January 6, 2018. The Board remanded the case to OWCP to consider 

waiver of recovery of the overpayment for that period, followed by a de novo decision.

On February 28, 2019 OWCP advised appellant that pursuant to the Board’s remand of the 

case, it would further consider whether appellant was eligible for waiver of recovery of the 

overpayment. It forwarded appellant an overpayment recovery questionnaire (Form OWCP-20) 

for his completion and afforded him 30 days to respond.

On a completed Form OWCP-20 overpayment recovery questionnaire dated March 22, 

2019, appellant noted that he had monthly income of $2,155.00 from SSA, $966.94 in retirement 

benefits from the OPM, and $160.00 from an annuity, for total monthly income of $3,261.94. He 

also indicated that he had assets of $6,387.82 which included $30.00 cash, $1,385.00 checking 

account balance, $4,672.82 savings account balance, and $300.00 other funds. Appellant prepared 

a financial statement in which he indicated monthly expenses of $135.00 property tax, $1,041.13 

home repair due to flooding, $500.00 church contributions, $39.00 home security, $175.30 

electricity, $183.71 gas, $98.34 telephone/internet, $35.00 water, $24.00 trash, $60.35 mobile 

telephone, $375.00 groceries, $100.00 restaurants, $191.58 bundled home and car insurance, 

$250.00 car/gasoline, $30.00 cleaning/laundry, $500.00 prescription drugs, $148.67 health 

insurance, $27.42 vision and dental insurance, $30.30 supplemental insurance, $11.31 life 

insurance, and 5 monthly credit card and personal loan payments totaling $640.00, for a total of 

$4,596.11 in monthly expenses. He listed his respective monthly credit card payments which 

totaled $515.00 and a personal loan $125.00. In an attached statement, appellant requested waiver, 

contending that his home had flooded and that a 2010 automobile needed substantial repairs. He

forwarded supporting financial documentation regarding his assets and expenses. This included: 

an estimate on home repairs; a Thrift Savings Account statement showing a balance of $7,447.18;

a loan payment calculator; bank receipts for monies deposited; cancelled checks to a church and 

for a personal loan; and partial billing statements for homeowners and life insurance, taxes, 

television/internet/telephone, and credit cards.

OWCP subsequently received additional supporting financial documentation consisting of 

partial statements for various credit cards. 

On April 15, 2019 OWCP issued a revised final overpayment decision regarding the 

overpayment of compensation in the amount of $63,696.96 for the period September 1, 2014 

through January 6, 2018. It indicated that it had reviewed appellant’s overpayment questionnaire 

and the submitted financial documentation, and determined that although he was without fault in 

part, the circumstances of his case did not warrant waiver of recovery of the overpayment. An 

attached overpayment memorandum explained that the evidence of record confirmed that he had 

monthly income of $3,336.13, other funds totaling $6,387.82, and debts totaling $4,416.57. 

OWCP then determined, however, that certain reported expenses were inflated, and that appellant 

had not provided sufficient documentation to support the amounts claimed. It found that his

adjusted income after expenses was $1,021.85 per month, noting that he had $6,387.82 in 

additional assets and that he did not have a mortgage or rent payment. OWCP found that the 
4

information submitted was insufficient to support waiver of recovery of the $63,696.96 

overpayment. It required recovery of the overpayment by monthly payments of $425.00.

LEGAL PRECEDENT

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. 5 

Thus, a finding that appellant was without fault does not automatically result in waiver of the 

overpayment. OWCP must then exercise its discretion to determine whether recovery of the 

overpayment would defeat the purpose of FECA or would be against equity and good conscience. 6

Section 10.436 of OWCP’s implementing regulations provides that recovery of an 

overpayment would defeat the purpose of FECA if such recovery would cause hardship 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, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP 

from data provided by the Bureau of Labor Statistics.7 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 $50.00.8

Section 10.437 of OWCP’s implementing regulations provides that 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 attempting to repay the debt; 

and when an individual, in reliance on such payments or on notice that such payments would be 

made, gives up a valuable right or changes his or her position for the worse.9 OWCP’s procedures 

provide that, to establish that a valuable right has been relinquished, an individual must 

demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and 

that his or her action was based primarily or solely on reliance on the payment(s) or on the notice 

of payment.10

 

5

5 U.S.C. § 8129(a), (b). 

6 E.L., Docket No. 20-0723 (issued October 15, 2020); L.S., 59 ECAB 350 (2008).

7

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).

8 Federal (FECA) Procedure Manual, id. at Chapter 6.400.4a(3).

9

20 C.F.R. § 10.437.

10 Federal (FECA) Procedure Manual, supranote 7at Chapter 6.400.4c(3).
5

ANALYSIS

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

amount of $63,696.96. 

Appellant’s adjusted income after expenses was $1,021.85 per month and he had $6,387.82 

in additional assets. Moreover, he did not provide sufficient documentation of all his expenses, as 

requested by OWCP.11

As appellant’s monthly income exceeds his ordinary and necessary living expenses by 

more than $50.00, the Board finds that he did not need substantially all of his income for ordinary 

and necessary living expenses.12 The record also establishes that he did not give up a valuable 

right or change his position for the worse in reliance on the overpaid amount.13 As appellant failed 

to establish that recovery of the overpayment of compensation would either defeat the purpose of 

FECA or be against equity and good conscience, the Board finds that OWCP did not abuse its 

discretion in denying waiver of recovery of the overpayment.

CONCLUSION

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

amount of $63,696.96. 

 

11 See R.M., Docket No. 19-0183 (issued November 18, 2019).

12 See R.F., Docket No. 20-0159 (issued October 15, 2020); M.C., Docket No. 19-0699 (issued February 12, 2020).

13 Supra note 10. 
6

ORDER

IT IS HEREBY ORDERED THAT the April 15, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: September 2, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board