United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

DEPARTMENT OF LABOR, MINE SAFETY & 

HEALTH ADMINISTRATION, 

Barbourville, KY, Employer

__________________________________________

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Docket No. 21-0253

Issued: March 24, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 10, 2020 appellant filed a timely appeal from a November 16, 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 appellant received an overpayment of compensation in the 

amount of $5,022.00 for the period May 26, 2019 through February 29, 2020 for which he was 

without fault, because of an underwithholding of optional life insurance (OLI) premiums from his 

FECA compensation; and (2) whether OWCP properly denied waiver of recovery of the 

overpayment. 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 18, 2016 appellant, then a 62-year-old underground mine safety and health 

inspector, filed a traumatic injury claim (Form CA-1) alleging that on October 13, 2016 he injured 

his neck when he slipped and fell onto a mine floor while in the performance of duty. OWCP

accepted the claim for strain of muscle(s) and tendon(s) of the right shoulder rotator cuff (tear) and 

later expanded the acceptance of the claim to include aggravation of radiculopathy and spinal 

stenosis of the cervical region. It paid appellant wage-loss compensation on the supplemental

rolls, effective November 17, 2016, and then on the periodic rolls effective September 17, 2017. 

In a September 27, 2017 letter, OWCP outlined appellant’s entitlement to compensation 

benefits. It advised him that it was making deductions for health insurance benefits, basic life 

insurance (BLI), and OLI premiums (in the amount of $421.20) from his compensation payments

every 28 days.

On February 25, 2020 the Office of Personnel Management (OPM) informed OWCP that 

as a compensationer appellant was eligible to continue Federal Employees’ Group Life Insurance 

(FEGLI) coverage in the form of basic, postretirement basic life insurance (PRBLI), and OLI 

coverage. The final base salary on which FEGLI was based was $92,316.00. OPM requested 

OWCP to deduct for code X0 basic Option A for 75 percent reduction and Option B times five 

with no reduction. It noted that appellant’s PRBLI reduction commenced on October 14, 2017. 

OPM forwarded an Option B election form that appellant signed on February 14, 2020 freezing all 

of his Option B (additional) life insurance at the value as of age 65, to continue for life.

In a preliminary overpayment determination dated April 9, 2020, OWCP notified appellant 

that he had received an overpayment of compensation in the amount of $10,819.00 because OLI 

and PRBLI premiums after he reached age 65 had not been properly deducted from his FECA 

compensation for the period October 14, 2017 through February 29, 2020. It provided an 

overpayment calculation. OWCP further advised appellant of its preliminary determination that 

he was not at fault in the creation of the overpayment and requested that he complete an 

overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20). 

Additionally, it notified him that within 30 days of the date of the letter, he could request a 

telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.

In a memorandum of telephone call (Form CA-110) dated April 30, 2020, appellant

informed OWCP that OPM had advised him that he had paid BLI and OLI premiums up to age 

65. However, deductions should have continued to have been made as of 2019 when he turned 65 

years old and not in 2017 as indicated in OPM’s February 25, 2020 letter.

In a May 11, 2020 amended overpayment referral, OWCP noted that its compensation 

history records showed that appellant had paid OLI premiums up to May 25, 2019 and that 

deductions for OLI and PRBLI premiums began on March 1, 2020. It further noted that the 

overpayment occurred from May 26, 2019 to February 29, 2020, 10 periodic roll cycles. As 

appellant’s premium for OLI after age 65 was $502.20 every 28-day cycle, the total overpayment 

was $5,022.00.
3

OWCP, in a corrected preliminary overpayment determination also dated May 11, 2020, 

informed appellant that he had received an overpayment of compensation in the amount of 

$5,022.00 because OLI premiums had not been properly deducted after he turned 65 years old on 

May 12, 2019 from his FECA compensation for the period May 26, 2019 through 

February 29, 2020. It provided an overpayment calculation. OWCP again found that appellant

was not at fault in the creation of the overpayment and requested that he complete an overpayment 

action request form containing appeal rights and a Form OWCP-20 and submit supporting 

documentation including copies of tax returns, bank account statements, bills and cancelled 

checks, pay slips, and other records which supported the income and expenses listed. It again 

notified him that he could request a telephone conference, a final decision based on the written 

evidence, or a prerecoupment hearing. OWCP advised that, under 20 C.F.R. § 10.438, failure to 

submit the requested information within 30 days would result in a denial of waiver of recovery of 

the overpayment. However, no financial information was submitted by appellant.

On June 8, 2020 appellant requested a telephonic prerecoupment hearing, which was held 

on August 31, 2020. He contested the fact and amount of the overpayment and requested waiver 

of recovery of the overpayment. Appellant asserted that he was subject to double jeopardy as 

OWCP had vacated the initial preliminary overpayment determination, admitted error, but had 

thereafter issued a new preliminary overpayment determination. He also indicated that he had 

alerted OWCP that premiums were not being withheld properly from his FECA compensation. 

By decision dated November 16, 2020, an OWCP hearing representative finalized the 

May 11, 2020 preliminary overpayment determination that appellant had received an overpayment 

of compensation in the amount of $5,022.00 for the period May 26, 2019 through February 29, 

2020, for which he was without fault, because OWCP had failed to deduct OLI premiums after he 

reached age 65 from his compensation payments. He found that issuance of a corrected decision, 

reducing the amount of the overpayment, did not constitute double jeopardy. The hearing 

representative noted the rates of FEGLI premiums effective January 1, 2016. For option B (per 

$1,000 of insurance), the bi-weekly premium for age band 65-69 was .54. Based on his rounded 

final salary of $93,000.00 and 5x multiple election, appellant was insured for $465,000.00. The 

hearing representative further calculated that twice the bi-weekly rate of .54 was 1.08 and 

multiplied by 465 equaled a 28-day premium of $502.20. He denied waiver of recovery of the 

overpayment as no financial evidence had been submitted in response to the May 11, 2020 

preliminary overpayment determination, as requested. Because OWCP did not have the necessary 

financial information to determine an equitable monthly repayment amount, the hearing 

representative ordered recovery of the overpayment in full within 30 days. Appellant was directed 

to contact OWCP if he wished to enter into a monthly repayment agreement.

LEGAL PRECEDENT -- ISSUE 1

Under the FEGLI Program, most civilian employees of the Federal Government are eligible 

to participate in BLI and one or more of the options.2 The coverage for BLI is effective unless 

waived,3 and premiums for basic and optional life coverage are withheld from the employee’s 

2

5 U.S.C. § 8702(a).

3

Id. at § 8702(b).
4

pay.4 Upon retirement or upon separation from the employing establishment or being placed on 

the FECA periodic compensation rolls, an employee may choose to continue BLI and OLI 

coverage in which case the schedule of deductions made will be used to withhold premiums from 

his or her annuity or compensation payments.5 BLI coverage shall be continued without cost to 

an employee who retired or began receiving compensation on or before December 31, 1989;6

however, the employee is responsible for payment of premiums for OLI coverage which is 

accomplished by authorizing withholdings from his or her compensation.7

A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving 

compensation under FECA could elect continuous withholdings from his or her compensation, so 

that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701 

(December 5, 1980) provided that an eligible employee had the option of choosing n o life 

insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings 

from compensation payments that would be reduced by two percent a month after age 65 with a 

maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject 

to continuous withholdings from compensation payments that would be reduced by one percent a 

month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject 

to continuous withholdings from compensation payments with no reductions after age 65 (at a 

greater premium).8 When an underwithholding of life insurance premiums occurs, the entire 

amount is deemed an overpayment of compensation because OWCP must pay the full premium to 

OPM upon discovery of the error.9

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. 10 When 

an overpayment 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.11

4

Id. at § 8707.

5

Id. at § 8706.

6

Id. at § 8707(b)(2).

7

Id. at § 8706(b)(3)(B). See J.H., Docket No. 20-0281 (issued May 18, 2021); B.B., Docket No. 17-1733 (issued 

March 26, 2018).

8

See I.J., Docket No. 19-1672 (issued March 10, 2020); C.A., Docket No. 18-1284 (issued April15, 2019); James J. 

Conway, Docket No. 04-2047 (issued May 20, 2005).

9

5 U.S.C. § 8707(d); see also B.B., supra note 7.

10 Id. at § 8102(a).

11 Id. at § 8129(a).
5

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation in the amount of 

$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was without fault, 

because of an underwithholding of OLI premiums from his FECA compensation.

OPM notified OWCP that on February 14, 2020 appellant had elected to freeze all of his

Option B additional life insurance at the value as of age 65. OWCP found that appellant had paid 

OLI premiums up to May 25, 2019 when he reached the age of 65 on May 12, 2019 and that 

deductions for these premiums began on March 1, 2020, but that it did not deduct the proper 

amounts of OLI premiums from appellant’s wage-loss compensation benefits for the period 

May 26, 2019 through February 29, 2020. It calculated the amount of the resulting overpayment 

as $5,022.00. The record contains compensation payment records, as well as an overpayment 

worksheet explaining the overpayment calculation and how the overpayment occurred. While in 

compensationer status, appellant remained responsible for all insurance benefits, including the 

premiums for OLI at whatever option he or she had selected.12 Moreover, as noted, when an 

underwithholding of life insurance premiums occurs, the entire amount is deemed an overpayment 

of compensation because OWCP must pay the full premium to OPM upon discovery of the error.13

The Board thus finds that OWCP properly determined the fact and amount of the 

overpayment. As OWCP failed to properly deduct OLI premiums for the period May 26, 2019 

through February 29, 2020, appellant received an overpayment of $5,022.00 during this period.14 

LEGAL PRECEDENT -- ISSUE 2

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. 15

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 seeks recovery needs substantially all of his or her current income, including compensation 

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

not exceed a specified amount as determined by OWCP. 16 Additionally, recovery of an 

12 5 C.F.R. § 870.504(b); S.P.,Docket No. 17-1888 (issued July 18, 2018).

13 5 U.S.C. § 8102.

14 See J.H., supra note 7; I.J.,supra note 8; D.H.,Docket No. 19-0384 (issued August 12, 2019); R.W., Docket No. 

19-0451 (issued August 7, 2019).

15 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued 

December 21, 2017).

16 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. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400.4a(2) (September 2020).
6

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 such payments would be 

made, gives up a valuable right or changes his or her position for the worse. 17

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.18 Failure to submit the requested information 

within 30 days of the request shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished. 19

ANALYSIS -- ISSUE 2

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

The fact that a claimant is without fault in the creation of an overpayment does not preclude 

OWCP from recovering the overpayment.20 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.21 Appellant, however, has the responsibility to provide the appropriate 

financial information and documentation to OWCP.

22

In its preliminary overpayment determination dated May 11, 2020, OWCP explained the 

importance of providing the completed Form OWCP-20 and financial information, including 

copies of income tax returns, bank account statements, bills, pay slips, and any other records to 

support income and expenses. It advised appellant that it would deny waiver of recovery if he 

failed to furnish the requested financial information within 30 days. Appellant, however, did not 

respond. As such, OWCP did not have the necessary financial information to determine if recovery 

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

good conscience.23

17 Id. at § 10.437(a)(b).

18 Id. at § 10.438(a).

19 Id. at § 10.438(b).

20 See George A. Rodriguez, 57 ECAB 224 (2005); JoyceO. Diaz, 51 ECAB 124 (1999).

21 20 C.F.R. § 10.436.

22 Id. at § 10.438; see also N.J., Docket No. 19-1170 (issued January 10, 2020); S.M.,Docket No. 17-1802 (issued 

August 20, 2018).

23 J.H., supra note7; D.H.,supra note 14.
7

As appellant did not submit the information required under 20 C.F.R. § 10.438, which was 

necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied 

waiver of recovery of the overpayment.24

CONCLUSION

The Board finds that appellant received an overpayment of compensation in the amount of 

$5,022.00 for the period May 26, 2019 through February 29, 2020, for which he was withoutfault, 

because of an underwithholding of life insurance premiums. The Board further finds that OWCP 

properly denied waiver of recovery of the overpayment. 

ORDER

IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 24, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

24 Id.