United States Department of Labor

Employees’ Compensation Appeals Board

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P.Y., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Marshfield, MA, Employer

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Docket No. 22-0598

Issued: March 9, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 13, 2022 appellant filed a timely appeal from a September 22, 2021 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 to consider the merits of this case. 

ISSUE

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

wage-loss compensation in the amount of $2,718.72 for the period April 28 through May 25, 2019. 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances of the case 

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

are as follows.

On May 4, 2015 appellant, then a 47-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on May 2, 2015 he sustained neck, shoulder, and back strains/sprains 

when his long-life vehicle was rear-ended in a motor vehicle accident while in the performance of 

duty. He stopped work on the date of injury. OWCP accepted appellant’s claim for neck and 

bilateral shoulder sprains. It paid him wage-loss compensation on the supplemental rolls from 

June 17 through July 25, 2015, and on the periodic rolls from July 26, 2015 through 

December 7, 2019.

By decision dated April 11, 2019, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective April 28, 2019, finding that the special weight of the medical 

evidence rested with Dr. John H. Chaglassin, a Board-certified orthopedic surgeon serving as an 

impartial medical examiner, who concluded in his June 2, 2017 report that appellant had no 

residuals or disability due to his accepted May 2, 2015 employment injury.

On May 25, 2019 appellant received compensation via direct deposit in the amount of 

$2,718.72 for the period April 28 through May 25, 2019. On June 22, 2019 he received 

compensation via direct deposit in the amount of $2,718.72 for the period May 26 through 

June 22, 2019. Appellant continued to receive compensation via direct deposit in the amount of 

$2,718.72 through December 7, 2019 on the periodic rolls.

In a preliminary determination dated December 19, 2019, OWCP notified appellant that he 

had received an overpayment of compensation in the amount of $21,749.76 because he continued

to receive compensation payments on the periodic rolls via direct deposit through December 7, 

2019, after his FECA wage-loss compensation was terminated on April 28, 2019. It determined

that he was at fault in the creation of the overpayment because he accepted a payment that he knew 

or reasonably should have known was incorrect. OWCP requested that appellant submit a 

completed overpayment recoveryquestionnaire (Form OWCP-20) and submit supporting financial 

documentation. It further notified him that, within 30 days of the date of the letter, he could request 

a final decision based on the written evidence, or a prerecoupment hearing. OWCP mailed the 

preliminary determination to appellant’s address of record. No response was received. 

By decision dated January 24, 2020, OWCP finalized its determination that an 

overpayment of compensation was created in the amount of $21,749.76 for the period April 28 

through December 7, 2019, and that he was at fault in its creation. It required that the overpayment 

be recovered in full.

On January 27, 2020 OWCP received an overpayment action request form, dated 

January 17, 2020 and postmarked January 22, 2020, in which appellant requested a prerecoupment 

hearing. Appellant contested the fact of overpayment and requested waiver of recovery of the 

2 Docket No. 20-0824 (issued May 24, 2021).
3

overpayment. He contended that he remained totally disabled and that his oral hearing regarding 

the termination of his compensation benefits was still pending before OWCP. As such, appellant 

believed that he would continue to receive compensation benefits during the appeal process. He 

also contended that he did not have the financial means to repay the overpayment. Appellant 

submitted an undated and incomplete Form OWCP-20, wherein he provided no information 

regarding his monthly income, monthly expenses, and assets.

By decision dated February 18, 2020, OWCP denied appellant’s request for a 

prerecoupment hearing, finding that it was untimely filed and that the final overpayment decision 

was not subject to a hearing, pursuant to 5 U.S.C. § 8124(b).

Appellant appealed to the Board, and by decision dated May 24, 2021,

3

the Board found 

that OWCP, in its January 24, 2020 decision, properly determined that appellant received an 

overpayment of compensation in the amount of $21,749.76 for the period April 28 through 

December 7, 2019, but reversed the finding of fault in the creation of the overpayment for the 

period April 28 through May 25, 2019 and remanded the case for OWCP to consider waiver of 

recovery of the overpayment for that period. Additionally, the Board affirmed the finding of fault 

in the creation of the remainder of the overpayment period, and thus, appellant was precluded from 

waiver of recovery for the remainingperiod. The Board also affirmed OWCP’s February 18, 2020 

decision, finding that it properly denied appellant’s request for a prerecoupment hearing as 

untimely filed. 

On remand, in a letter dated August 9, 2021, OWCP requested that appellant again 

complete and return an enclosed Form OWCP-20. It also requested that he attach financial 

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

checks, pay slips, and any other records, supporting the reported income and expenses. OWCP 

advised that, under 20 C.F.R. § 10.438, the failure to submit the requested information within 30 

days would result in denial of waiver of recovery of the overpayment.

In a completed Form OWCP-20 dated September 3, 2021, appellant reported monthly

income of $13,750.00. He also reported monthly expenses totaling $6,407.00, which included 

$600.00 for rent; $1,000.00 for food; $500.00 for clothing; $3,500.00 for other expenses that 

included transportation, insurance, and an auto loan; and $807.00 for a credit union loan payment. 

Appellant further reported that he had $300.00 cash on hand; $5,000.00 in a checking account;

$6,000.00 in a savings account; and $5,000.00 in stocks and bonds, totaling $16,300.00 in assets.

4

In a September 22, 2021 decision, OWCP denied waiver of recovery of the $2,718.72 

overpayment, for the period April 28 through May 25, 2019. It found that appellant’s assets 

exceeded the allowable resource base of $10,300.00 for an individual with a spouse and, therefore, 

he would not experience financial hardship in repaying the overpayment. OWCP required 

recovery of the overpayment in full within 30 days. 

3

Id. 

4 The Board notes that it appears that appellant inadvertently calculated $19,000.00 rather than $16,300.00 in total 

assets. 
4

LEGAL PRECEDENT

Section 8129 of FECA provides that an overpayment must be recovered 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.5 Thus, a 

finding that appellant was without fault does not automatically result in waiver of recovery 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 recovery would cause hardship because the 

beneficiary needs substantially all of his or her 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’s liquid assets include, but are not limited to cash, the value of stocks, bonds, savings 

accounts, mutual funds, and certificates of deposits.

8

Section 10.437 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 To establish that a valuable right has been relinquished, it must be 

shown that the right was in fact valuable, that it cannot be regained, and that the action was based 

chiefly or solely in reliance on the payments or on the notice of payment.10

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 

5

5 U.S.C. § 8129(a)-(b).

6

See J.S.,Docket No. 21-0097 (issued May 16, 2022); T.C.,Docket No. 21-0612 (issued December 2, 2021).

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 2020). 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

Id.

9

20 C.F.R. § 10.437(a)-(b).

10 Id. at § 10.437(b)(1).
5

the purpose of FECA or be against equity and good conscience. The information is also used to 

determine the repayment schedule, if necessary.11

ANALYSIS

The Board finds that OWCP properly denied waiver of recovery of an overpayment of 

wage-loss compensation in the amount of $2,718.72 for the period April 28 through May 25, 2019. 

The Board preliminarily notes that in its May 24, 2021 decision, it affirmed the fact and 

amount of the $21,749.76 overpayment received by appellant. The Board also found, however, 

that appellant was without fault in the creation of the overpayment for the period April 28 through 

May 25, 2019. The Board also found that appellant was at fault in creation of the overpayment for 

the remaining period. Findings made in prior Board decisions are res judicata absent further 

review by OWCP under section 8128 of FECA.12

On remand, appellant submitted a completed Form OWCP-20 outlining his income, 

expenses, and assets. He indicated that he had monthly income of $13,750.00 and monthly 

expenses of $6,407.00. Appellant also indicated that he had assets totaling $16,300.00.

The Board finds that appellant’s assets of $16,300.00 exceed the resource base of 

$10,300.00 for an individual with a spouse, as provided in OWCP’s procedures.13 Because he has 

not met the second prong of the two-prong test, of whether recovery of the overpayment would 

defeat the purpose of FECA, it is not necessary for OWCP to consider the first prong of the test, 

i.e., whether he needs substantially all of his current income to meet ordinary and necessary living 

expenses.14 Appellant has not established that he was eligible for waiver on the basis of defeating 

the purpose of FECA.

15

Additionally, the evidence does not demonstrate that recovery of the overpayment would 

be against equity and good conscience. Appellant has not submitted evidence to substantiate that 

he would experience severe financial hardship in attempting to repay the debt, or that in reliance 

on such payment he gave up a valuable right or changed his position for the worse. Therefore, 

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

12 See supra note 6; T.W., Docket No. 20-0836 (issued July 21, 2021); ClintonE. Anthony, Jr., 49 ECAB 476, 

479 (1998). See also 20 C.F.R. § 501.6(d).

13 Supra note 7.

14 See T.C., supra note 6; S.W., Docket No. 20-0363 (issued November 23, 2020); M.H., Docket No. 19-1497 

(issued September 9, 2020).

15 T.C., id.; N.B., Docket No. 20-0727 (issued January26, 2021);R.D.,Docket No. 19-1598 (issued April17, 2020); 

R.C.,Docket No. 19-0845 (issued February 3, 2020).
6

OWCP properly found that recovery of the overpayment would not defeat the purpose of FECA 

or be against equity and good conscience.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 overpayment.17

CONCLUSION

The Board finds that OWCP properly denied waiver of recovery of an overpayment of 

wage-loss compensation in the amount of $2,718.72 for the period April 28 through May 25, 2019. 

ORDER

IT IS HEREBY ORDERED THAT the September 22, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 9, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

 

16 T.C., id.; N.J., Docket No. 19-1170 (issued January 10, 2020); V.T., Docket No. 18-0628 (issued 

October 25, 2018).

 

17 With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing 

those cases where OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is no 

longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to the recovery of the 

overpayment under the Debt Collection Act. T.C., id.; R.W., Docket No. 18-1059 (issued February 6, 2019); Cheryl 

Thomas, 55 ECAB 610 (2004).