United States Department of Labor

Employees’ Compensation Appeals Board

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J.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Chicago Heights, IL, Employer

__________________________________________

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Docket No. 20-0328

Issued: January 12, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 26, 2019 appellant filed a timely appeal from a September 6, 2019 merit 

decision and an October 10, 2019 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2(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 properly determined that appellant received an 

overpayment of compensation in the amount of $30,074.13, for the period July 24, 2016 through 

June 22, 2018 for which she was without fault, as she continued to receive wage-loss compensation 

1 The Board notes that,following the October 10, 2019decision, 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

5 U.S.C. § 8101 et seq.
2

following her return to work in the private sector; (2) whether OWCP properly denied waiver of 

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

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

beginning September 15, 2019; and (4) whether OWCP properly denied appellant’s request for an 

oral hearing.

FACTUAL HISTORY

On November 3, 2014 appellant then a 46-year-old casual carrier associate, filed a 

traumatic injury claim (Form CA-1) alleging that on November 1, 2014 she sprained her left knee 

when she stepped in a divot in the grass and twisted her knee while in the performance of duty. 

On December 4, 2014 OWCP accepted her claim for left knee sprain. It subsequently expanded 

the acceptance of appellant’s claim to include incomplete left tibia fracture. OWCP subsequently 

paid her wage-loss compensation from November 17, 2014 through May 17, 2015.3 Appellant 

returned to work on May 18, 2015, but stopped work again on June 1, 2015 as the employing 

establishment could no longer provide work within her restrictions. Thereafter, she filed a series 

of claims for compensation (Form CA-7) for disability from work. OWCP paid appellant wageloss compensation on the periodic rolls commencing February 6, 2016.4

OWCP subsequently expanded the acceptance of the claim to include chondromalacia left 

knee and meniscal tear.

The employing establishment informed appellant on May 9, 2016 that there was no work 

available for her within her restrictions.

On December 17, 2016 appellant indicated on completed a Form EN-1032 that beginning 

July 21, 2016 she performed private sector work earning $10.50 an hour or approximately $711.53 

biweekly.

On November 14, 2017 OWCP further expanded the acceptance of appellant’s claim to 

include bilateral primary knee osteoarthritis.

3 The employing establishment informed OWCP on January 23, 2015 that, despite indications to the contrary, 

appellant had not worked 11 months prior to the date of injury, as her career in service date began in July 2014. It 

noted that it had paid continuation of pay from November 17 through 22, 2014. On January 29, 2015 the employing 

establishment indicated that appellant should be compensated based on a yearly salary of $31,824.00 or a weekly base 

pay of $612.00. On March 2, 2015 it indicated that she had a temporary appointment with an intermittent tour of duty. 

The employing establishment had provided the actual earnings of another employee with the same type of appointment 

with similar duties, working the greatest number of hours in the amount of $32,615.00. It indicated that the similarly 

situated employee worked 40 hours a week and that the earnings represented the period November 2013 through 

November 2014.

4

In a letter dated January 19, 2016, OWCP notified appellant that she would be receiving compensation payments 

on the periodic rolls based on a weekly pay rate in the amount of $612.00 with gross weekly compensation of $459.00. 

It informed her that her regular net wage-loss compensation payment of $1,825.80 every 28 days would begin 

February6, 2016. OWCP advised appellant of her responsibility to return to work and that, to minimize the possibility 

of an overpayment of compensation, she should notify it immediately when she returned to work. She signed and 

returned the accompanying instructions on the seeking employment form on January 26, 2016.
3

On December 18, 2017 appellant advised OWCP that she had worked in the private sector 

as of June 2016 earning $10.00 per hour.

In a February 28, 2018 e-mail, the employing establishment advised that appellant had 

worked in the private sector from July 24, 2016 through December 24, 2017, earning a total of 

$31,789.20.

On March 29, 2018 OWCP determined that appellant’s weekly pay rate when injured was 

$612.00 and that the current pay rate for her date-of-injury position was $627.20. It applied the 

Shadrick formula, as provided in section 10.403(d) of OWCP’s regulations,5 and determined that 

her actual earnings were $428.75 per week and that she had a loss of wage-earning capacity in the 

amount of $195.84 per week or $11,064.21 from July 24, 2016 through December 24, 2017. 

OWCP calculated that appellant was entitled to wage-loss compensation in the amount of 

$34,556.42 for the above period.

On June 16, 2018 the employing establishment offered appellant a light-duty position. 

Appellant accepted the position on June 23, 2018.

In a letter dated July 25, 2018, OWCP requested that appellant verify her private-sector 

earnings for the period December 25, 2017 through June 24, 2018. On August 1, 2018 appellant

provided earnings statements from her private-sector employment for the period December 14, 

2017 through June 14, 2018.

On September 7, 2018 OWCP again calculated appellant’s wage-earning capacity through 

the Shadrick formula6 and found that her pay rate when injured was $612.00 per week and that the 

current weekly pay rate for the date-of-injury position was $627.00. It found that she had actual 

earnings in the amount of $434.84 per week and that her loss of wage-earning capacity 

compensation was $142.29 per week and $595.00 every four weeks. OWCP found that appellant 

had received wage-loss compensation in the amount of $46,690.55 for the period July 24, 2016 

through June 24, 2018.

In an October 30, 2018 letter, OWCP noted that appellant was currently earning more than 

her date-of-injury position which it calculated was $31,824.00 per year or $612.00 per week. It 

found that her current earnings were $816.53 per week.

The employing establishment indicated that the pay rate for appellant’s date-of-injury 

position were $16.91 per hour on November 26, 2016 and $17.28 per hour on November 25, 2017.

On April 25, 2019 OWCP determined that appellant had received wage-loss compensation 

in the amount of $46,809.06 for the period July 24, 2016 through June 22, 2018.

In a May 14, 2019 OWCP preliminary overpayment determination, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $30,137.26 for 

the period July 24, 2016 through June 22, 2018, because she received wage-loss compensation for 

5

20 C.F.R. § 10.403 codified AlbertC. Shadrick, 5 ECAB 376 (1953).

6

Id.
4

total disability while working in the private sector. It found that she had private sector earnings in 

the amount of $43,543.58 for the period in question and, based on her loss of wage-earning 

capacity using the Shadrick formula,7 was therefore entitled to only $16,671.90 rather the 

$46,809.06 in wage-loss compensation that she had received. OWCP provided appellant with her 

appeal rights and an overpayment recovery questionnaire (Form OWCP-20). It afforded her 30 

days to respond.

On May 24, 2019 appellant contested the fact and amount of the overpayment, and 

requested waiver of recovery.

By decision dated July 29, 2019, OWCP’s hearing representative found that OWCP had 

not properly calculated appellant’s wage-earning capacity as there was conflicting information 

regarding the date-of-injury pay rate. He noted that the employing establishment provided both a 

yearly salary of $31,824.00 as if she worked 40 hours a week with a weekly base pay of $612.00 

and yearly salary of $32,615.00 based on the highest paid similarly situated employee. OWCP’s 

hearing representative further found that OWCP failed to properly average appellant’s private 

sector earnings to the pay rate of the date of injury at the end of the period of her actual earnings.

On August 1, 2019 OWCP made a preliminary overpayment determination finding that

appellant had received an overpayment of wage-loss compensation in the amount of $30,074.13 

for the period July 24, 2016 through June 22, 2018 because she received compensation for total 

disability while working in the private sector. It found that she was without fault in the creation 

of the overpayment because it had erred in not calculating her wage-earning capacity while she 

was working in the private sector, noting that she had reported her private sector earnings. OWCP 

provided appellant with a calculation of the amount of the overpayment based on the Shadrick

formula.

8

 It noted that she began working in the private sector on July 21, 2016 and reported her 

employment on a Form EN-1032. OWCP calculated appellant’s private sector earnings for the 

period in question as $43,543.58, averaging $436.06 per week. It noted that she received 

compensation for total disability in the amount of $46,809.06 during the period July 24, 2016 

through June 22, 2018. OWCP determined that appellant’s date-of-injury pay rate at $607.45 per 

week based on the earnings of the employee most similar to her who had the greatest number of 

hours as she had not worked at the employing establishment for a full year prior to her injury. It 

further found that her date-of-injury position paid $686.06 per week at the time she ended her 

private sector employment. OWCP determined that appellant was entitled to receive wage-loss 

compensation in the amount of $16,734.93 resulting in an overpayment of $30,074.13. It also 

provided her with an overpayment recovery questionnaire (OWCP-20) and with her appeal rights. 

OWCP afforded appellant 30 days to respond. No response was received.

By decision dated September 6, 2019, OWCP finalized its determination that appellant had 

received an overpayment in the amount of $30,074.13 for the period July 24, 2016 through 

June 22, 2018 for which she was not at fault. It further determined that the overpayment was not 

7

Id.

8

Id.
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subject to waiver, and that the overpayment should be recovered by withholding $400.00 every 28 

days from her continuing compensation benefits. 

On September 10, 2019 appellant requested an oral hearing by OWCP’s Branch of 

Hearings and Review and also requested waiver.

By decision dated October 10, 2019, OWCP’s Branch of Hearings and Review denied 

appellant’s request for an oral hearing. It noted that OWCP made its preliminary determination of 

overpayment on August 1, 2019 and that it did not receive a request for hearing within 30 days of

the preliminary determination. Further, OWCP in its September 6, 2019 final overpayment 

decision, noted that a final decision concerning an overpayment is not subject to an oral hearing 

and the only right of appeal is to the Board.

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.9

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.10 Section 10.500 of OWCP’s regulations provides that compensation for wage loss 

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

medical condition prevents him or her from earning the wages earned before the work -related 

injury.11

Section 8129(a) of FECA provides that when an overpayment of compensation has been 

made to an individual 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 the individual is 

entitled.12

If the claimant is entitled to compensation for partial wage loss after return to work, the 

claims examiner should compute entitlement using the Shadrick formula and authorize 

compensation on a 28-day payment cycle. The claims examiner should make every effort to avoid 

interruption of income to the claimant.13 Earnings of a sporadic or intermittent nature which do 

not fairly and reasonably represent the claimant’s loss of wage-earning capacity should be 

9

5 U.S.C. § 8102(a).

10 Id. at § 8116(a); C.Y., Docket No. 18-0263 (issued September 14, 2018);Danny E. Haley, 56 ECAB 393 (2005).

11 20 C.F.R. § 10.500.

12 5 U.S.C. § 8129(a).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual 

Earnings,Chapter 2.815.3(b) (June2013). Albert C. Shadrick, supranote 5.
6

deducted from continuing compensation payments using the Shadrick formula (past earnings must 

be declared an overpayment).14

ANALYSIS -- ISSUE 1

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

of compensation for the period July 24, 2016 through June 22, 2018, for which she was without 

fault, as she continued to receive wage-loss compensation following her return to work in the 

private sector.

OWCP accepted appellant’s claim and paid her wage-loss compensation on the periodic 

rolls as of February 6, 2016. The record establishes that she returned to full-time work on July 21, 

2016 in the private sector. However, appellant continued to receive wage-loss compensation from

July 24, 2016 through June 22, 2018, resulting in an overpayment of compensation.15 Therefore, 

fact of overpayment is established.

The Board further finds, however, that this case is not in posture with regard to the amount 

of the overpayment. 

OWCP reported that, had proper adjustments been made to appellant’s disability 

compensation to reflect her actual employment, she would have received $16,734.93 for the time 

period July 24, 2016 through June 22, 2018. However, appellant received compensation for this 

period in the amount of $46,809.06. The difference between these two amounts, $30 ,074.13, is 

the amount of the overpayment of compensation, as calculated by OWCP. 16 OWCP correctly 

subtracted what they believed was the correct amount of compensation actually received 

($46,809.06) from the amount they believed she was entitled to ($16,671.90) ($46,809.06-

$16,671.90 = the overpayment amount of $30,137.16). However, it remains unclear how OWCP 

arrived at those numbers. 

The record indicates that, on September 7, 2018, OWCP found that appellant had received 

wage-loss compensation in the amount of $46,690.55 for the period July 24, 2016 through 

June 24, 2018. However, on April 25, 2019 OWCP determined that she had received wage-loss 

compensation in the amount of $46,809.06 for the period July 24, 2016 through June 22, 2018. 

With regard to the amount that OWCP believes that appellant was entitled to ($16,671.90), 

OWCP’s calculations are not found in the case record. A claimant is entitled to an overpayment 

decision that clearly explains how the amount was calculated.17 The Board will therefore remand 

the case for OWCP to further explain its calculation of the amount of the overpayment.

14 J.S., Docket No. 17-0260 (issued December 28, 2017); J.W., Docket No. 15-1163 (issued January 13, 2016).

15 C.Y., supra note 10. Id.

16 C.Y., supra note 10; J.S., supranote 14; C.F., Docket No. 16-1718 (issued August 21, 2017).

17 D.K., Docket No. 22-0736 (issued December 6, 2022); R.B., Docket No. 20-0022 (issued October 28, 2020);

O.R., 59 ECAB 432 (2008).
7

On remand, OWCP shall clarify the amount of the overpayment of compensation

thoroughly explain its calculations. It shall then issue a new preliminary overpayment 

determination, with an overpayment action request form, a Form OWCP-20, and instructions for 

appellant to provide the necessary financial information and supporting documentation.

18

 After 

this, and other such further development as deemed necessary, it shall issue a de novo decision.19

CONCLUSION

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

of compensation for the period July 24, 2016 through June 22, 2018 for which she was without 

fault. However, the Board further finds that the case is not in posture for decision with regard to 

the amount of the overpayment. 

ORDER

IT IS HEREBY ORDERED THAT the September 6, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed. The October 10, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside as moot. 

Issued: January 12, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

18 See D.K., id.; L.K., Docket No. 20-0416 (issued November 12, 2020).

19 In light of the Board’s disposition of Issue 1, Issues 2, 3, and 4 are rendered moot.