United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer

__________________________________________

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Docket No. 20-1585

Issued: August 4, 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 September 8, 2020 appellant filed a timely appeal from a March 13, 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

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $55,286.21, for which she was without fault, for 

the period June 19, 2012 through July 20, 2019, because the pay rate used to determine her 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence to OWCP following the March 13, 2020 decision. 

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

compensation was calculated incorrectly; (2) whether OWCP properly denied waiver of recovery 

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

deducting $891.40 from appellant’s continuing compensation payments.

FACTUAL HISTORY

On March 22, 2012 appellant, then a 49-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that, earlier that day, she sustained a right upper extremity injury when 

a high-speed tray sorter bar struck her right hand as she cleared a jam while in the performance of 

duty. She stopped work on March 22, 2012 and returned to work on April 2, 2012. On April 11, 

2012 OWCP accepted the claim for right hand contusion. 

On June 18, 2012 appellant accepted a part-time modified position as a mail handler, 

working three hours a day with restrictions. On June 29, 2012 she filed a claim for compensation 

(Form CA-7) for intermittent leave without pay from June 18 through 28, 2012, with night 

differential. On the reverse side of the claim form, the employing establishment noted that on 

March 22, 2012 appellant’s pay rate as a Grade 5, Step J was $52,080.00 a year, with $50.03 a day 

in night differential pay, and $55.50 a week in Sunday premium pay. Appellant filed additional 

claims for compensation for intermittent disability through July 27, 2012.

In an August 1, 2012 pay rate memorandum, based on information from the employing 

establishment, OWCP calculated that appellant’s annual base salary as of March 22, 2012 was 

$52,028.00 or $1,000.54 per week, with an additional $55.50 per week in Sunday premium pay, 

and $250.15 per week in night differential pay.

OWCP paid appellant wage-loss compensation on the supplemental rolls commencing 

June 19, 2012, based on a weekly pay rate of $1,306.19 and placed her on the periodic rolls,

effective June 28, 2015. 

On November 9, 2015 appellant returned to full-time modified-duty work as a sales 

solution team member, with annual earnings of $56,257.00. OWCP paid her wage-loss 

compensation for lost Sunday premium and night differential pay on the supplemental rolls. It 

returned appellant to the periodic rolls, effective November 12, 2017 as there was no work 

available within her restrictions.

In July 22, 2019 memoranda, OWCP noted that the employing establishment clarified that 

appellant’s date-of-injury base pay rate was $1,000.54 per week, with Sunday premium pay of 

$50.03 per week and night differential of $55.50 per week, to equal $1,106.07 per week. 

Appellant’s current pay rate was $55,221.00 per year or $1,061.94 per week, with combined night 

differential and premium pay of $112.00 per week, to equal $1,173.95 per week. OWCP calculated 

that her actual weekly wage-earning capacity was $56,605.00 a year or $1,088.55 a week.

In a January 9, 2020 overpayment memorandum, OWCP noted that it identified a potential 

overpayment in appellant’s case as she had been paid compensation for the period June 19, 2012 

through July 20, 2019 based on night differential pay of $55.50 per day instead of $55.50 per week, 

and Sunday premium pay at $55.50 per week instead of $50.03 per week. It calculated that, from 
3

June 19, 2012 through July 20, 2019, she had been paid $299,109.41 in wage-loss compensation,

but was entitled to only $243,823.20, a difference of $55,286.21.

On January 10, 2020 OWCP issued a preliminary determination, finding that an 

overpayment of compensation in the amount of $55,286.21 had been created because the pay rate 

used to determine appellant’s compensation for the period June 19, 2012 through July 20, 2019 

was calculated incorrectly. It had included night differential pay of $55.50 per day instead of 

$55.50 per week, and calculated Sunday premium pay at $55.50 per week instead of $50.03 per

week. OWCP found that appellant was without fault in creation of the overpayment. It forwarded 

an overpayment recovery questionnaire (Form OWCP-20) for her completion. OWCP explained 

that appellant was to attach supporting financial documentation including income tax returns, bank 

account statements, bills and cancelled checks, pay slips, and any other records. It advised her that 

it would deny waiver of recovery if she failed to furnish the requested financial information. 

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 response, appellant submitted a completed Form OWCP-20 signed on February 8, 2020. 

She contended that recovery of the overpayment would cause significant financial hardship. 

Appellant listed total monthly household income of $12,288.00, which included $3,565.00 in 

wage-loss compensation benefits. She listed assets of $9,958.00 in cash and bank accounts. 

Appellant noted expenses of $2,778.00 a month for mortgage payments and homeowner’s 

insurance, $525.00 for food, $763.00 for clothing, and $1,350.00 in miscellaneous expenses. She 

also listed monthly debt repayments of $1,328.00 on a home equity line of credit, and $1,106.00 

in other debt repayment for a total of $7,850.00 in living expenses. Appellant submitted detailed 

financial documentation of the listed income, assets, and expenses. 

By decision dated March 13, 2020, OWCP finalized the preliminary determination that 

appellant received an overpayment of compensation in the amount of $55,286.21, for the period 

June 19, 2012 through July 20, 2019, because she was paid FECA wage-loss compensation based 

on an incorrect pay rate. It found her without fault in the creation of the overpayment, but denied 

waiver of recovery based on its consideration of the financial evidence submitted. OWCP found 

that appellant had established monthly income of $12,288.00 and monthly expenses of $7,850.00, 

resulting in monthly net income greater than $50.00. It required recovery of the overpayment by 

deducting $891.40 every 28 days from her continuing compensation payments. 

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 

 

3 5 U.S.C. § 8102(a).
4

to which an individual is entitled.”

4

 Section 8116 limits the right of an employee to receive 

compensation. While an employee is receiving compensation, he or she may not receive salary, 

pay, or remuneration of any type from the United States.5

Once the proper time period is determined, section 8114(d)(1)(A) provides a specific 

methodology for determining pay rate:

“(d) Average annual earnings are determined as follows--

(1) If the employee worked in the employment in which he was employed 

at the time of his injury during substantially the whole year immediately 

preceding the injury and the employment was in a position for which an 

annual rate of pay--

(A) was fixed, the average annual earnings are the annual rate of 

pay.”

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OWCP’s procedures provide that, if the employee did not stop work on the date of injury 

or immediately afterwards, defined as the next day, the record should indicate the pay rate for the 

date of injury and the date disability began. The greater of the two should be used in computing 

compensation and if they are the same, the pay rate should be effective on the date disability 

began.7 In computing the weekly pay rate for an employee who receives an annual salary, 

including postal workers, the annual salary is divided by 52.8 The procedures further indicate that 

administrative inclusions should be included in computing an employee’s pay rate, including night 

differential, shift differential, holiday pay, and premium pay for weekend work.9

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $55,286.21, for which she was without fault, for the period 

June 19, 2012 through July 20, 2019, because the pay rate used to determine her wage-loss 

compensation was calculated incorrectly.

OWCP paid appellant compensation for the period July 19, 2012 through July 20, 2019 

based on a weekly pay rate of $1,000.54 per week, with night differential pay of $55.50 a day and 

Sunday premium pay of $55.50 per week. In a January 9, 2020 memorandum, it explained that it 

 

4

Id. at § 8129(a).

5

Id. at § 8116(a); see G.H., Docket No. 19-0770 (issued March 5, 2020); Danny E. Haley, 56 ECAB 393 (2005).

6

Id. at § 8114(d)(1)(A).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5a(3) 

(September 2011).

8

Id. at Chapter 2.900.10a (March 2011).

9

Id. at Chapter 2.900.6b (March 2011).
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had erred by paying her compensation based of night differential premium pay of $55.50 per day 

when she was entitled to only $55.50 per week, and Sunday premium pay of $55.50 per week 

whereas the correct amount was $50.03 per week. OWCP calculated that appellant had been paid 

$299,109.41 in compensation for the period at issue, but was entitled to only $243,823.20. OWCP,

therefore, properly determined fact of overpayment. 

The Board further finds that OWCP properly calculated the amount of the overpayment. 

OWCP properly determined appellant’s weekly pay rate by dividing her annual base pay of 

$52,028.00 by 52 to reach a weekly salary of $1,000.54.10 As appellant received compensation 

based on an incorrect rate of Sunday premium and night differential pay, she received an 

overpayment of compensation for the period June 19, 2012 through July 20, 2019 in the amount 

of $55,286.21.

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LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment of compensation shall be recovered 

by OWCP unless incorrect payment has been made to an individual who is without fault and when 

adjustment or recovery would defeat the purpose of FECA or would be against equity and good 

conscience.12 Section 10.438 of OWCP’s regulations provides 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. Failure 

to submit the requested information within 30 days of the request shall result in denial of waiver.13

ANALYSIS -- ISSUE 2

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

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.14 

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because she has not shown that she needs substantially all of her current income to meet 

ordinary and necessary living expenses. As her monthly household income of $12,288.00 exceeds 

her monthly expenses of $7,850.00 by more than $50.00, in this case, $ 4,438.00, she has not 

shown that she needs substantially all of her current income to meet current ordinary and necessary 

 

10 See S.P., Docket No. 19-1318 (issued July 31, 2020); L.D., Docket No. 19-0320 (issued July 26, 2019).

11 Id.

12 5 U.S.C. § 8129.

13 20 C.F.R. § 10.438; see D.M., Docket No. 19-1369 (issued June 30, 2020).

14 L.S., 59 ECAB 350 (2008).
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living expenses.15 Because appellant has not met the first prong of the two-prong test of whether 

recovery of the overpayment would defeat the purpose of FECA, it is unnecessary for OWCP to 

consider the second prong of the test based on her assets.

Appellant also has not established that recovery of the overpayment would be against 

equity and good conscience because she has not shown, for the reasons noted above, that she would 

experience severe financial hardship in attempting to repay the debt or that she relinquished a 

valuable right or changed her position for the worse in reliance on the payment which created the

overpayment.16

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 $55,286.21 overpayment.

LEGAL PRECEDENT -- ISSUE 3

The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those 

cases where OWCP seeks recovery from continuing compensation under FECA.17

Section 10.441(a) of OWCP s regulations18 provides in pertinent part:

When an overpayment has been made to an individual who is entitled to further payments, 

the individual shall refund to OWCP the amount of the overpayment as soon as the error 

is discovered or his or her attention is called to same. If no refund is made, OWCP shall 

decrease later payments of compensation, taking into account the probable extent of future 

payments, the rate of compensation, the financial circumstances of the individual, and any 

other relevant factors, so as to minimize any hardship.19

ANALYSIS -- ISSUE 3

The Board finds this case is not in posture for decision regarding recovery of the 

overpayment.

OWCP found that appellant had total monthly income of $12,288.00 and expenses of 

$7,850.00, and that her monthly income exceeded her expenses by more than $50.00. Its 

regulations provide that the overpaid individual is responsible for providing information about 

 

15 20 C.F.R. § 10.437(a), (b).

16 Id.

17 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

18 Id. at § 10.441(a).

19 P.L., Docket No. 20-0709 (issued March 18, 2021); J.K., Docket No. 20-1190 (issued January 8, 2021); see C.M., 

Docket No. 19-1451 (issued March 4, 2020).
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income, expenses, and assets as specified by OWCP.20 When an individual fails to provide 

requested financial information, OWCP should follow minimum collection guidelines designed to 

collect the debt promptly and in full.21 The Federal (FECA) Procedure Manual provides that, in 

these instances, OWCP should set the rate of repayment at 25 percent of the 28-day net 

compensation amount until the balance of the overpayment is paid in full.22

In this case, appellant responded to the preliminary overpayment determination and 

submitted detailed financial information and supporting documentation for OWCP’s 

consideration. OWCP, however, erroneously applied a rate of repayment at 25 percent of the net 

28-day compensation, ordering that $891.40 be deducted from her continuing compensation every 

28 days. It should have applied the appropriate standard for when the requested financial 

information is received in response to the preliminary overpayment determination.23

The case will, therefore, be remanded to OWCP for further consideration of the rate of 

recovery of the $55,286.21 overpayment from appellant’s continuing compensation benefits to be 

followed by a de novo decision.

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $55,286.21, for which she was without fault, for the period 

June 19, 2012 through July 20, 2019, because the pay rate used to determine her compensation 

was calculated incorrectly. The Board also finds that OWCP properly denied waiver of recovery 

of the overpayment of compensation. The Board further finds that this case is not in posture for 

decision regarding recovery of the overpayment.

 

20 20 C.F.R. § 10.438. See also A.F., Docket No. 19-0054 (issued June 12, 2019).

21 See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).

22 Supra note 8 at Chapter 6.500.8(c)(1) (September 2018); D.H., Docket No. 20-1064 (issued December 14, 2020).

23 Supra note 8 at Chapter 6.500.8(c)(2) (September 2018); see also P.L., supra note 19.
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ORDER

IT IS HEREBY ORDERED THAT the March 13, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: August 4, 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