United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Spring, TX, Employer

__________________________________________

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Docket No. 21-0342

Issued: March 15, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 4, 2021 appellant filed a timely appeal from a November 10, 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.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective April 26, 2020, because she 

refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); (2) whether it properly 

determined that appellant received an overpayment of compensation in the amount of $3,193.12

for the period April 26 through May 23, 2020, for which she was without fault, because she 

continued to receive wage-loss compensation following the termination of her compensation

1

5 U.S.C. § 8101 et seq.
2

pursuant to 5 U.S.C. § 8106(c)(2); and (3) whether OWCP properly denied waiver of recovery of 

the overpayment.

FACTUAL HISTORY

On June 4, 2008 appellant then a 38-year-old window clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on May 23, 2008 she bruised her right leg, head, neck, and tailbone 

when she tripped on a stool and fell while in the performance of duty. OWCP accepted her claim 

for contusions of multiple sites, not elsewhere classified and subsequently expanded the 

acceptance of her claim to include sprain of the back, thoracic region, contusion of buttock,

displacement of lumbar intervertebral disc without myelopathy, intervertebral disc disorder with 

myelopathy, cervical region, and displacement of cervical intervertebral disc without myelopathy. 

Appellant stopped work on May 24, 2008 and worked intermittently thereafter until stoppingwork

completely on May 3, 2017. OWCP paid appellant wage-loss compensation on the supplemental 

rolls and then on the periodic rolls. 

OWCP referred appellant, along with the case record and a statement of accepted facts 

(SOAF), for a second opinion examination to determine her disability status. In an August 3, 2017 

report, Dr. Albert Sanders, a Board-certified orthopedic surgeon, opined that appellant continued 

to have residuals of the work-related injury of May 23, 2008. He noted that appellant was status 

post cervical fusion at C5-6 and lumbar fusion at L5-S1, but continued to have chronic pain in the 

neck and low back. Dr. Sanders advised that appellant exhausted all treatment modalities and her 

prognosis was poor. He opined that appellant reached maximum medical improvement (MMI) on 

September 17, 2015. Dr. Sanders indicated that appellant underwent a functional capacity 

evaluation (FCE) on August 11, 2017 that found that she was capable of performing sedentary 

duty, but not the usual duties of a window clerk. He reviewed the job description for a modified 

passport scheduler that did not require lifting/pulling/pushing over 10 pounds and occasional 

standing and walking and opined that appellant could perform these duties without restrictions. In 

a work capacity evaluation (Form OWCP-5c) dated August 11, 2017, Dr. Sanders noted diagnoses 

and indicated that appellant reached MMI and could return to work without restrictions.

By letter dated October 25, 2017, the employing establishment offered appellant a position 

as a modified clerk. The duties included: sitting to perform customer complaint cases for two 

hours a day;sitting to process parcel returns on a laptop for two hours a day; processing passports 

while sitting for two hours a day; and assisting customers at the window while standing for two 

hours a day. The physical requirements included: lifting, pushing, and pulling no more than 10 

pounds;standing and walking for no more than two hours each; reaching above the shoulder for 

no more than two hours a day; and no twisting.

On November 3, 2017 the employing establishment indicated that appellant did not show 

up for work and did not respond to the job offer. On February 21, 2018 the employing 

establishment confirmed that the job remained available.

By notice dated February 23, 2018, OWCP advised appellant that it had determined that 

she had refused or failed to report to the offered position as a modified clerk. It informed her that 

it had reviewed the offered position and found it was suitable and in accordance with the medical 

restrictions provided by Dr. Sanders’ August 3, 2017 report. Pursuant to 5 U.S.C. § 8106(c)(2), 
3

OWCP afforded appellant 30 days to accept the position or to provide adequate reasons for refusal. 

It informed herthat an employee who refuses an offer of suitable work without cause is not entitled 

to wage-loss or schedule award compensation.

In a letter dated March 8, 2018, appellant rejected the job offer, asserting that the job 

exceeded her restrictions and that she was in severe incapacitating pain. 

Appellant submitted a March 9, 2018 report from Dr. Kenneth Lee, a Board-certified 

orthopedist, who noted a history of injury and diagnosed cervicalgia, low back pain, postlaminectomy syndrome, radiculopathy in the lumbar and cervical region, obesity, intervertebral 

disc displacement of the lumbar region, and spinal stenosis of the lumbar region with neurogenic 

claudication. Dr. Lee reviewed a post-lumbar computerized tomography myelogram (CTM) from 

October 10, 2017, which revealed most prominently L3-4 four-millimeter disc bulge with 

moderate central canal stenosis with effacement about traversing nerve roots producing severe 

central canal and lateral recess stenosis. He indicated that appellant remained symptomatic with 

low back pain and bilateral lower extremity pain and recommended surgical intervention lumbar 

decompression and discectomy at L3-4. Dr. Lee further indicated that appellant could not return 

to work even in a sedentary capacity due to severe central canal stenosis associated with 

radiculopathy affecting her lower extremities.

On March 22, 2018 OWCP reviewed the evidence of record and determined that the 

modified clerk position was not suitable. It determined that Dr. Lee’s March 9, 2018 report 

revealed that appellant’s condition may have materially worsened and she may require surgery 

and, therefore, could not work.

OWCP requested an addendum report from Dr. Sanders addressing Dr. Lee’s report and 

providing an opinion on whether the proposed treatment was due to the accepted conditions. On 

April 2, 2018 Dr. Sanders noted that he could not comment as he had not received a copy of the 

cervical CTM or Dr. Lee’s report and his evaluation was performed eight months ago and 

appellant’s current condition was not clear.

On May 4, 2018 OWCP referred appellant to Dr. Sanders for a supplemental second

opinion. In a May 24, 2018 report, Dr. Sanders opined that appellant continued to have residuals 

of the work-related injury. He found that the most recent CTM of the lumbar spine dated 

October 9, 2017 revealed prominent spinal stenosis at L3-4, and opined that these residuals were 

due to the work-related injury. Dr. Sanders disagreed with Dr. Lee’s opinion that appellant should 

remain off work and indicated that the prior FCE showed that appellant was capable of performing 

sedentary work with restrictions. In a Form OWCP-5c dated June 1, 2018, he noted that appellant 

could return to sedentary work with permanent restrictions of walking, standing, and reaching 

above shoulders no more than two hours a day, pushing, pulling, and lifting up to 10 pounds for 

no more than two hours, and no twisting, bending, squatting, kneeling, climbing or stooping.

On December 31, 2018 OWCP determined that there was a conflict of medical opinion 

between Dr. Lee, appellant’s treating physician who opined that appellant was totally disabled 

from work, and Dr. Sanders, the second opinion physician, who opined that appellant was capable 

of working in a full-time limited-duty capacity.
4

OWCP referred appellant to Dr. Gwenevere Williams, a Board-certified physiatrist, for an 

impartial medical evaluation. In her January 31, 2019 report, Dr. Williams noted reviewing the 

SOAF, medical history, and the medical record, including appellant’s prior medical diagnosis and 

procedures. Findings on examination revealed: a well-healed spinalincision;flattening of cervical 

and lumbar lordosis; restricted range of motion in the lumbar and cervical spine; tenderness to 

bilateral cervical paraspinals, splenius capitus, trapezii, infraspinatus, and rhomboid; moderate 

tenderness to the right acetabulum and upper gluteals; and vague sensory dysesthesia to light touch 

and pinprick to the left L5 and S1 dermatomes. Dr. Williams reported that appellant was obese 

and concomitant of significant deconditioned state unrelated to the May 23, 2008 work injury. She 

noted that the work-related injury was affected by the preexisting medical condition of obesity that

placed excessive load on the cervical and lumbar spine causing additional symptomology. 

Dr. Williams related that appellant provided inconsistent effort during her February 1, 2019 FCE. 

However, based upon results documented by the FCE, Dr. Williams opined that appellant was 

capable of performing modified sedentary work on a full-time basis. In a Form OWCP-5,

Dr. Williams opined that appellant was capable of walking and standing up to two hours per day,

reaching above her shoulder up to two hours per day, pushing, pulling no more than 20 pounds up 

to two hours per day, lifting no more than 10 pounds up to two hours per day, and no twisting, 

bending or stooping. 

Appellant was treated in follow up by Dr. Andrew McKay, a Board-certified 

anesthesiologist, on February 26 and June 18, 2019 for neck and low back pain. Dr. McKay noted 

findings of diminished range of motion of the cervical and lumbar areas of the spine, positive 

Spurling’s test, tenderness to palpation at C3-4 to C5-6 levels, weak upper and lower extremity 

motor strength, and positive straight leg testing bilaterally. He diagnosed failed cervical and 

lumbar spine surgery syndrome, status post lumbar and anterior cervical fusions, cervicalgia, 

lumbago, chronic pain syndrome, and morbid obesity. 

On July 19, 2019 the employing establishment offered appellant a modified distribution 

window and markup clerk position. The salary for the position was the same as appellant’s current 

PS 06/0 salary of $60,737.00. The job description listed that duties would be performed up to 

eight hours a day and included assisting customers in the lobby that could be performed while 

sitting up to eight hours. The physical requirements included: lifting up to 10 pounds; pushing

and pulling up to 20 pounds intermittently up to two hours each; walking, standing, and reaching 

above the shoulder intermittently up to two hours each; and no twisting, bending, or stooping. The 

available shift was from 9:00 a.m. to 6:30 p.m., Monday through Friday, with Sundays and 

Wednesdays off.

In a letter dated August 19, 2019, OWCP advised appellant that the position offered was

suitable in accordance with the medical limitations provided by Dr. Williams on 

February 18, 2019. It notified her that, if she failed to report to work or failed to demonstrate that 

the failure was justified, pursuant to 5 U.S.C § 8106(c)(2), her wage-loss compensation and 

entitlement to a schedule award would be terminated. OWCP afforded appellant 30 days to 

respond. 

On September 17, 2019 appellant responded to the August 19, 2019 letter, asserting that 

she was medically unable to accept the offered position as the duties of the assignment were 

inconsistent with her medical restrictions and disabilities.
5

Appellant submitted an October 8, 2019 report from Dr. McKay, who noted findings on 

examination of tenderness of the cervical spinous process at C3-4 and C5-6, positive Spurling’s 

test on the right, and diminished motor strength of the upper extremities diminished on the left. 

With regard to the lumbar spine he noted paraspinal muscle tenderness bilaterally, tenderness to 

palpation of L3-4 and L5-S1, and weak motor strength of the lower extremities. He diagnosed 

failed cervical and lumbar spine surgery; status post lumbar fusion and anterior cervical fusion;

cervicalgia, lumbago, chronic pain syndrome; and obesity. Dr. McKay noted that appellant was 

totally disabled.

On October 9, 2019 appellant was treated by Dr. Shahid Syed, a Board-certified internist, 

for low back and neck pain. Findings on examination revealed an obese female; tenderness to 

palpation of the cervical spine; paraspinal neck and trapezius; and decreased range of motion of 

the paralumbar, parathoracic, and buttocks. Dr. Syed noted a problem list of chronic back pain, 

cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy syndrome, sprain of 

the ligaments of the cervical spine, muscle fascia and tendon at the neck, ligaments of the thoracic 

spine, and muscle spasm of the back. He noted that appellant was off work for three months.

In a December 20, 2019 letter, OWCP found that the reasons appellant provided for 

refusing the offered position were invalid. It afforded her 15 additional days to accept and report 

to this position. OWCP noted that if appellant did not accept the position within 15 days of the 

date of the letter, her wage-loss compensation and entitlement to a schedule award would be 

terminated pursuant to 5 U.S.C. § 8106(c)(2). No additional response was received.

By decision dated April 13, 2020, OWCP terminated appellant’s wage-loss compensation 

and entitlement to a schedule award, effective April 26, 2020, finding that she had refused an offer 

of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

In a compensation termination worksheet dated June 3, 2020, OWCP indicated that 

appellant’s compensation was terminated effective April 26, 2020; however, she continued to be 

paid on the periodic rolls from April 26 through May 23, 2020. The overpayment amount was 

$3,193.12.2

On June 8, 2020 OWCP issued a preliminary overpayment determination that an 

overpayment of compensation had been created in the amount of $3,193.12 as appellant continued 

to receive payment on the periodic rolls through May 23, 2020, after her FECA wage-loss 

compensation had been terminated on April 26, 2020. It determined that she was without fault in 

the creation of the overpayment. OWCP requested that appellant submit a completed overpayment 

recovery questionnaire (Form OWCP-20) to determine a reasonable payment method and advised 

her that she could request waiver of recovery of the overpayment. It further requested that she 

provide supporting financial documentation, including copies of income tax returns, bank account 

statements, bills, and canceled checks, pay slips, and any other records, which support income and 

expenses. Additionally, OWCP provided an overpayment action request form and further notified 

2 The record reveals that payment was issued on May 23, 2020 viaelectronic funds transfer for the period April26 

through May 23, 2020. 
6

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.

On July 6, 2020 appellant completed a Form OWCP-20 and requested that OWCP render 

a decision based on the written evidence. She disagreed with the fact and amount of the 

overpayment, and requested waiver of recovery of the overpayment. 

On a Form OWCP-20 completed on July 6, 2020 appellant reported that her total monthly 

income included $123.00 from the Social Security Administration (SSA) and miscellaneous sales 

of $180.00, resulting in total monthly income of $303.00. She reported expenses totaling 

$2,365.00. Appellant indicated monthly expenses of $665.00 for rent, $600.00 for food, $100.00 

for clothing, $800.00 for utilities, and $200.00 for other expenses. She reported: no cash on hand;

a checking account balance of $467.32; a savings account balance of zero; and no stocks, personal 

property or other assets. Appellant indicated that she had been experiencing more expenses than 

normal as her car had broken down and her home had flooded due to a broken washing machine. 

She indicated that she provided a written explanation as to why she could not accept the offered 

position on September 17, 2019. Appellant further asserted that she was entitled to compensation 

benefits because she could no longer work due to the accepted employment injuries. With regard 

to whether there was a change in circumstances affecting her monthly payment, she indicated that 

there was not.

On October 1, 2020 appellant attended a telephonic prerecoupment hearing before a 

representative of OWCP’s Branch of Hearings and Review. She subsequently submitted financial 

documentation including a monthly benefits statement from SSA noting a payment of $1,783.00. 

Appellant noted: expenses of car insurance of $132.00 a month; natural gas of $20.00; water bill 

of $69.49 a month; mortgage of $662.00 a month; telephone service for two lines at $71.83 and 

$77.83 a month; and electric service of $131.45 a month. She provided documentation from the 

Thrift Savings Plan (TSP) reflecting a balance of $68,251.01, savings account balance of $119.68,

and checking account balance of $16.39.

By decision dated November 10, 2020, OWCP’s hearing representative finalized the 

preliminary overpayment determination, finding that appellant had received an overpayment of 

compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020, because 

she continued to receive wage-loss compensation following the termination of her compensation. 

OWCP further found that she was without fault in the creation of the overpayment, but denied 

waiver of recovery because the evidence of record was insufficient to establish that recovery of 

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

required recovery by payment of $100.00 per month.

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

termination or modification of an employee’s compensation benefits.3 Section 8106(c)(2) of 

FECA provides that a partially disabled employee who refuses or neglects to work after suitable 

3

See K.S.,Docket No. 19-1650 (issued April28, 2020); J.R.,Docket No. 19-0206 (issued August14, 2019); R.P.,

Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); KellyY. Simpson, 57 ECAB 197 (2005).
7

work is offered to, procured by, or secured for the employee is not entitled to compensation.4 To 

justify termination of compensation, OWCP must show that the work offered was suitable, that 

the employee was informed of the consequences of refusal to accept such employment, and that 

he or she was allowed a reasonable period to accept or reject the position or submit evidence to 

provide reasons why the position is not suitable.5 Section 8106(c) will be narrowly construed as 

it serves as a penalty provision, which may bar an employee’s entitlement to compensation based 

on a refusal to accept a suitable offer of employment.6

In determining what constitutes suitable work for a particular disabled employee, OWCP 

considers the employee’s current physical limitations, whether the work was available within the 

employee’s demonstrated commuting area, the employee’s qualifications to perform such work, 

and other relevant factors.7 The issue of whether an employee has the physical ability to perform 

a modified position offered by the employing establishment is primarily a medical question that 

must be resolved by medical evidence. All impairments, whether work related or not, must be 

considered in assessing the suitability of an offered position.8

Section 8123(a) of FECA provides in pertinent part that, if there is disagreement between 

the physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.9 This is called a referee 

examination and OWCP will select a physician who is qualified in the appropriate specialty and 

who has no prior connection with the case.10 When there exist opposing medical reports of 

virtually equal weight and rationale and the case is referred to an impartial medical examiner (IME)

for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well 

rationalized and based upon a proper factual background, must be given special weight. 11

ANALYSIS -- ISSUE 1

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer 

of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

See R.A., Docket No. 19-0065 (issued May 14, 2019); RonaldM. Jones, 52 ECAB 190 (2000).

6

S.D., Docket No. 18-1641 (issued April12, 2019); JoanF. Burke, 54 ECAB 406 (2003).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, 

Chapter 2.814.4(c) (June2013);see Lorraine C. Hall, 51 ECAB 477 (2000).

8 L.L., Docket No. 17-1247 (issued April12, 2018); J.J., Docket No. 17-0410 (issued June 20, 2017); Gayle Harris, 

52 ECAB 319 (2001).

9

5 U.S.C. § 8123(a).

10 20 C.F.R. § 10.321.

11 K.S.,Docket No. 19-0082 (issued July 29, 2019).
8

OWCP properly found a conflict in the medical opinion evidence between Drs. Lee and 

Sanders and referred appellant to Dr. Williams for an impartial medical examination.12

In a January 31, 2019 report, Dr. Williams noted that appellant was obese and concomitant 

of significant deconditioned state unrelated to the May 23, 2008 work injury. She noted that the 

work-related injury was affected by the preexisting medical condition of obesity that placed 

excessive load on the cervical and lumbar spine causing additional symptomology. Based on the 

February 1, 2019 FCE, Dr. Williams opined that appellant was capable of performing sedentary 

work on a full-time basis, sitting up to eight hours per day. She determined that appellant was 

capable of walking and standing up to two hours per day; reaching above her shoulder up to two 

hours per day; pushing and pulling no more than 20 pounds up to two hours per day; lifting no 

more than 10 pounds up to two hours per day; and no twisting, bending or stooping. The Board 

finds that Dr. Williams’ opinion is entitled to the special weight of the medical evidence accorded 

an IME because she based this opinion on a proper factual background, a review of the medical 

record, and physical examination, and she provided a well-rationalized opinion that appellant was 

capable of a sedentary level of modified-duty work.

On July 19, 2019 the employing establishment offered appellant a modified position of 

distribution window and markup clerk. The job description listed that duties would be performed 

up to eight hours a day and included assisting customers in the lobby that could be performed while 

sitting up to eight hours. The physical requirements included: lifting up to 10 pounds, pushing

and pulling 20 pounds intermittently up to two hours each, walking, standing, and reaching above 

the shoulder intermittently up to two hours each, no twisting, bending, or stooping. The Board 

finds that the physical requirements of the offered position of distribution window and markup 

clerk conformed to appellant’s work restrictions as provided by Dr. Williams. The special weight 

of the medical evidence of record establishes that appellant was no longer totally disabled from 

work and had the physical capacity to perform the duties listed in the July 19, 2019 job offer. 

Thus, OWCP properly relied on Dr. Williams’ opinion in finding the distribution window and 

markup clerk position suitable.

In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP advised 

appellant on August 19, 2019 that it found the job offer of modified distribution window and 

markup clerk to be suitable and afforded her an opportunity to provide reasons for refusing the 

position within 30 days. Following appellant’sreply, it advised her, in a December 20, 2019letter, 

that her reasons for refusing were deficient and properly allowed 15 additional days to accept the 

offered position. The Board finds that OWCP followed the established procedures prior to the 

termination of her wage-loss compensation pursuant to 5 U.S.C. § 8106(c)(2).

Subsequent to the August 19, 2019 letter from OWCP, appellant submitted an October 8, 

2019 report from Dr. McKay who diagnosed failed cervical and lumbar spine surgery, status post 

lumbar fusion and anterior cervical fusion, cervicalgia, lumbago, chronic pain syndrome and 

morbid obesity. Dr. McKay noted that appellant was totally disabled. Similarly, on October 9, 

2019 appellant was treated by Dr. Syed for low back and neck pain. He noted a problem list of 

chronic back pain, cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy 

12 Id.
9

syndrome, sprain of the ligaments of the cervical spine, muscle fascia and tendon at the neck, 

ligaments of the thoracic spine, and muscle spasm of the back and advised that appellant was off 

work for three months. However, Drs. McKay and Syed’s reports are insufficient to establish that 

the position offered appellant was unsuitable as the physicians did not provide a reasoned opinion 

explaining how or why appellant’s diagnosed conditions prevented her from performing the 

modified job duties at the time her compensation was terminated.13

The Board, therefore,finds that OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation and entitlement to a schedule award based on her refusal to accept the 

offered position.

LEGAL PRECEDENT -- ISSUE 2

Section 8102(a) 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.14 Section 8129(a) of FECA 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.”

15

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.16 Section 8116 of FECA defines the limitations on the right to receive compensation 

benefits. This section of FECA provides that, while an employee is receiving compensation, he 

or she may not receive salary, pay, or remuneration of any type from the United States, except in 

limited circumstances.17 OWCP’s regulations provide in pertinent part that compensation for wage 

loss due to disability is available only for any periods during which the employee’s work-related 

medical condition prevents her from earning the wages earned before the work-related injury.18

ANALYSIS -- ISSUE 2

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

of compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020 because 

she continued to receive wage-loss compensation following the termination of her compensation 

payments.

13 E.H., Docket No. 19-1352 (issued December 18, 2019); E.C., Docket No. 17-1645 (issued June 11, 2018).

14 Supra note 1 at § 8102(a).

15 Id. at § 8129(a).

16 Id. at § 8102.

17 Id. at § 8116(a).

18 20 C.F.R. § 10.500.
10

OWCP terminated appellant’s wage-loss compensation and entitlement to a schedule 

award, effective April 26, 2020, finding that she had refused an offer of suitable work pursuant to 

5 U.S.C. § 8106(c)(2). However, appellant continued to receive wage-loss compensation on the 

supplemental rolls through May 23, 2020. Since OWCP had terminated her wage-loss 

compensation benefits, effective April 26, 2020, appellant was not entitled to receive 

compensation benefits after that date. As she received $3,193.12 in FECA wage-loss 

compensation for the period April 26 through May 23, 2020, the Board finds that an overpayment 

of compensation in that amount was created.

LEGAL PRECEDENT -- ISSUE 3

Section 8129 of FECA provides that an overpayment in 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.19

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 seeksrecovery needssubstantially allof his or her currentincome, includingcompensation

benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do

not exceed a specified amount as determined by OWCP.20 An individual is deemed to need

substantially allof his or her currentincome to meet current ordinary andnecessarylivingexpenses

if monthly income does not exceed monthly expenses by more than $50.00.21 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.22 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.23

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

19 5 U.S.C. § 8129.

20 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. 20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet 

current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. 

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. Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Final Overpayment Determinations, Chapter 6.400(2), (3) (September 2020).

21 Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January10, 2020); M.A., Docket No. 18-1666 

(issued April 26, 2019).

22 See id. at Chapter 6.400.4(a)(2) (September 2020).

23 Id. at Chapter 6.400.4(b)(3).
11

such payments would be made, gives up a valuable right or changes his or her position for the

worse.24

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.25

ANALYSIS -- ISSUE 3

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.26 It considered 

appellant’s financial information, as reported in appellant’s Form OWCP-20, to determine if 

recovery of the overpayment would defeat the purpose of FECA or if recovery would be against 

equity and good conscience. 

The Board finds that OWCP properly determined that appellant did not require 

substantially all of her income to meet ordinary and necessary living expenses. Based upon the 

information provided on the Form OWCP-20, and evidence received after the hearing, appellant 

reported income totaling $1,963.00 and expenses of $662.00 for a mortgage, $600.00 for food,

$100.00 for clothing, $76.00 for water, $20.00 for natural gas, $78.00 for telephone,27 $131.00 for 

electric, and $132.00 for car insurance. Her expenses totaled $1,799.00. Appellant noted a 

checking account balance of $16.39, savings account balance of $119.68, and TSP balance of 

$68,251.01. As her monthly income exceeds her monthly expenses by $164.00, appellant does 

not need substantially all of her monthly income to meet current and ordinary living expenses.

The Board further finds that appellant has not established that recovery of the overpayment 

would be against equity and good conscience because it has not been shown, for the reasons noted 

above, that she would experience severe financial hardship in attempting to repay the debt, or that 

a valuable right had been relinquished, or that a position had been changed for the worse in reliance 

on the payment, which created the overpayment.28 Therefore, OWCP properly denied waiver of 

recovery of the overpayment.

24 20 C.F.R. § 10.437(a)(b).

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

26 5 U.S.C. § 8129.

27 One telephone line is permitted as an ordinary and necessary expense. Supra note 20 at Chapter 

6.400(4)(b)(2)(a)) (September 2020).

28 L.D., Docket No. 18-1317 (issued April17, 2019); WilliamJ. Murphy, 41 ECAB 569, 571-72 (1989).
12

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 has not 

abused its discretion by denying waiver of recovery of the overpayment.

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer 

of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP properly

determined that appellant received an overpayment of compensation in the amount of $3,193.12, 

for which she was without fault, because she continued to receive wage-loss compensation 

following the termination of her compensation for the period April 26 through May 23, 2020. The 

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

ORDER

IT IS HEREBY ORDERED THAT the November 10, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 15, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board