United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL TRANSFER CENTER, 

Oklahoma City, OK, Employer

__________________________________________

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Docket No. 20-1522

Issued: July 27, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 18, 2020 appellant filed a timely appeal from May 11 and July 21, 2020 merit 

decisions 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 appellant received an overpayment of compensation in the 

amount of $1,157.48 for the period March 18 through 30, 2019, for which she was without fault

1

5 U.S.C. § 8101 et seq. 

2 The Board notes that following the July 21, 2020 decision and on appeal, 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

because she continued to receive wage-loss compensation for total disability following her return 

to full-time, limited-duty work; (2) whether OWCP properly denied waiver of recovery of the 

overpayment; and (3) whether OWCP properly reduced appellant’s wage-loss compensation 

benefits, effective March 18, 2019, based on her actual earnings as a psychology services 

secretary.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior order, are incorporated herein by reference. The relevant facts are as follows.

On June 2, 2017 appellant, then a 52-year-old psychology secretary, filed an occupational 

disease claim (Form CA-2) alleging that she developed bilateral hand and neck conditions due to 

factors of her federal employment. She noted that she first became aware of her claimed conditions 

and their relation to her federal employment on March 9, 2008. On August 3, 2017 OWCP 

accepted appellant’s claim for right hip strain of muscle, fascia, and tendon; right carpal tunnel 

syndrome; right ulnar nerve lesion; and cervical radiculopathy. It subsequently expanded the 

acceptance of the claim to include left carpal tunnel syndrome and left lesion of the ulnar nerve. 

OWCP paid appellant wage-loss compensation on the supplemental rolls from October 10 to 

November 11, 2017, and on the periodic rolls as of November 12, 2017. 

In a letter dated December 4, 2017, OWCP advised appellant that, “[i]f your physician 

advises you that you are able to perform some type of work, you are also expected to report this to 

OWCP.” On an attached Form EN-1049, OWCP further indicated: “To minimize the possibility 

of an overpayment of compensation, NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO 

BACK TO WORK. If you receive your compensation payments via paper check, the payment 

shows the period for which payment is made. If you have worked for any portion of this period, 

return the payment to this office, even if you have already advised OWCP that you are working.

For payments sent by electronic funds transfer (EFT), a notification of the date and amount of 

payment appears on the statement from your financial institution. You are expected to monitor 

your EFT deposits carefully, at least every two weeks. If you have worked for any portion of the 

period for which a deposit was made, advise OWCP immediately so that the overpayment can be 

collected.” (Emphasis in the original.)

Appellant returned to full-time, limited-duty work on March 18, 2019. On March 30, 2019 

OWCP paid appellant, via direct deposit, the net amount of $2,493.04 in wage-loss compensation 

for the period March 3 through 30, 2019. 

On April 29, 2019 OWCP notified appellant of its preliminary overpayment determination 

that she had received an overpayment of compensation in the amount of $1,157.48 for the period 

March 18 through 30, 2019, because she continued to receive wage-loss compensation for total

disability following her return to full-time, limited-duty work. It found that she was without fault 

in the creation of the overpayment because she did not know, nor could she reasonably have been 

expected to know, that her compensation was paid incorrectly. OWCP informed appellant of her 

appeal rights and afforded her 30 days to complete an enclosed overpayment recovery 

3 Order Remanding Case, Docket No. 19-1400 (issued January 29, 2020).
3

questionnaire (Form OWCP-20) and submit supporting financial documentation. A computation 

of overpayment worksheet showed that for the period March 3 through 30, 2019, appellant 

received $2,493.04 in net wage-loss compensation. OWCP explained that this payment included 

$1,157.48 for the period March 18 through 30, 2019, which resulted in the overpayment amount 

of $1,157.48. 

On May 28, 2019 OWCP received appellant’s completed Form OWCP-20. Appellant

requested waiver of recovery of the overpayment and indicated that she relied on misinformation

given to her by OWCP. She listed monthly income of $2,079.72 and usual monthly expenses of 

$2,018.58. Appellant also listed other monthly payments for loans totaling $120.39. She listed 

$0 dollars cash on hand, $550.00 in checking, and $300.00 in savings, for a total of $850.00, and 

denied owning valuable property or real estate. Appellant submitted financial documentation 

showing other debts being paid in monthly installments. Her federal income tax returns showed

that in 2018 she claimed $4,582.00 in gifts by cash or check and $459.00 in gifts other than by 

cash or check, and in 2017 she claimed $3,878.00 in gifts by cash or check, $471.00 in gifts other 

than by cash or check, $1,953.00 in unreimbursed employee expenses business expenses, and in 

$3,500.00 other expenses. Appellant also claimed $3,249.00 for an Individual Retirement Account

(IRA) deduction. She also claimed $5,041.00 in gifts to charity on a state income tax form.

By decision dated May 30, 2019, OWCP finalized its preliminary overpayment 

determination that appellant had received an overpayment of compensation in the amount of 

$1,157.48 for the period March 18 through 30, 2019, and that that she was without fault in the 

creation of the overpayment. It denied waiver of recovery, however, finding that appellant had not 

submitted a completed overpayment recovery questionnaire.

On June 13, 2019 appellant filed a timely appeal to the Board. In a January 29, 2020 order, 

the Board found that the case was not in posture for decision.4 The Board noted that OWCP had 

failed to consider the Form OWCP-20 overpayment recovery questionnaire and supporting 

documentation submitted by appellant. The Board remanded the case to OWCP for a review of 

the evidence and issuance of a de novo decision.

On April 23, 2020 OWCP expanded the acceptance of appellant’s claim to include the 

additional conditions of right medial epicondylitis, right lateral epicondylitis, left medial 

epicondylitis, left lateral epicondylitis, synovitis right hand, and left thumb trigger finger. 

In a May 11, 2020 de novo decision, OWCP finalized the April 29, 2019 preliminary 

overpayment determination. It determined that an overpayment of compensation in the amount of 

$1,157.48 was created. OWCP reviewed the information provided by appellant in her Form 

OWCP-20 and determined that appellant listed monthly income as $2,079.72 and total monthly

expenses of $2,158.89, which resulted in a negative amount of $79.89. However, it explained that 

on her Federal income tax returns appellant claimed $4,582.00 in gifts by cash or check and 

$459.00 in gifts other than by cash or check in 2018, and $3,878.00 in gifts by cash or check, 

$471.00 in gifts other than by cash or check, $1,953.00 in unreimbursed employee expenses, and 

$3,500.00 in other expenses in 2017. OWCP also noted that she claimed educator expenses with 

no explanation and $3,249.00 for an IRA deduction without documentation. It further noted that 

4

Supra note 3.
4

on her state income tax form, appellant claimed $5,041.00 in gifts to charity. OWCP found that 

appellant had not demonstrated that she needed all of her income for ordinary and necessary living 

expenses. It also considered whether recovery of the overpayment would be against equity and 

good conscience and determined that the evidence failed to establish financial hardship. OWCP 

concluded that appellant was able to make monthly payments of $50.00 until the debt was resolved. 

In a letter and e-mail correspondence dated July 9, 2020, OWCP requested that the 

employing establishment provide information regarding appellant’s work schedule, rate of pay,

and the current pay rate for her date-of-injury position as of March 18, 2019. 

In a July 15, 2020 response, the employing establishment noted that appellant’s work 

schedule was Monday to Friday from 8:00 a.m. to 4:00 p.m. The rate of pay for the position was 

$57,086.00, and the current pay rate for a GS-6/step 10 as of March 18, 2019 was $55,510.00.

By decision dated July 21, 2020, OWCP found that appellant was recently employed as a 

psychology services secretary, working 40 hours per week with wages of $1,097.81 per week. It

explained that the employment was effective March 18, 2019 and the position fairly and 

reasonably represented her wage-earning capacity. OWCP also noted that evidence had been 

received on March 15, 2019, indicating a formal job title, established work schedule, and written 

position description with duties and physical limitations as established by the employing 

establishment. It noted that the physical requirements did not exceed her physical limitations. 

OWCP found that, as appellant had demonstrated the ability to perform the duties of the position 

for 60 days or more, the position was considered suitable to her partially disabling condition. It

further found that her actual earnings met or exceeded the current wages of the job held when 

injured, her entitlement to compensation ended on the date she was reemployed with no loss of 

earning capacity, and her compensation payments were terminated. OWCP noted that the decision 

did not affect her medical benefits.

A computation of compensation work sheet established a zero loss of wage-earning 

capacity (LWEC). It revealed that the weekly pay rate when the disability occurred was $1,049.73,

effective October 24, 2018. The current weekly pay rate for the job and step when injured was 

$1,067.50, effective March 18, 2019. OWCP determined that appellant had current actual 

earnings of $1,097.81 and found the current rate of pay was equal to or greater than the current 

pay of the job held at the time of injury, $1,067.50; therefore, there was no loss of wage-earning 

capacity. 

LEGAL PRECEDENT -- ISSUE 1

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.5 Section 8129(a) of FECA provides, in pertinent part, that when an 

overpayment has been made to an individual under this subchapter because of an error of fact or 

5

5 U.S.C. § 8102(a).
5

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by 

decreasing later payments to which an individual is entitled. 6

Section 8116(a) of FECA provides that, while an employee is receiving compensation or 

if he or she has been paid a lump sum in commutation of installment payments until the expiration 

of the period during which the installment payments would have continued, the employee may not 

receive salary, pay, or remuneration of any type from the United States, except in limited specified 

instances.7 OWCP’s procedures provide that an overpayment of compensation is created when a 

claimant returns to work, but continues to receive wage-loss compensation.8

ANALYSIS -- ISSUE 1

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

$1,157.48 for the period March 18 through 30, 2019, for which she was without fault because she 

continued to receive wage-loss compensation for total disability following her return to full-time, 

limited-duty work.

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

compensation rolls. The evidence of record established that she returned to full-time work at the 

employing establishment on March 18, 2019.

However, appellant continued to receive wage-loss compensation for total disability 

through March 30, 2019. As noted above, she is not entitled to receive compensation for total

disability after her return to work.9 Therefore, an overpayment of compensation was created in 

this case.

With regard to the amount of the overpayment, the Board finds that OWCP properly 

calculated appellant’s compensation for the period March 18 through 30, 2019. It explained that 

during the period March 3 through 30, 2019, appellant received $2,493.04 in net wage-loss 

compensation, which divided by 28 days was equal to $89.0371 per day. This amount multiplied 

by 13 days for the period March 18 through 30, 2019, resulted in the overpayment amount of 

$1,157.48. As she was not entitled to compensation upon her return to work, the Board finds that 

appellant received an overpayment of compensation in the amount of $1,157.48.

6

Id. at § 8129(a).

7

Id. at § 8116(a).

8

See K.P., Docket No. 19-1151 (issued March 18, 2020); S.H., Docket No. 19-0509 (issued August 23, 2019);

K.E.,Docket No. 18-0687 (issued October 25, 2018); B.H.,Docket No. 09-0292 (issued September 1, 2009); Federal 

(FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, Chapter 

6.200.1(a) (September 2018).

9 K.K., Docket No. 19-0978 (issued October 21, 2019); E.V., Docket No. 17-1328 (issued December 11, 2017); 

Federal (FECA) Procedure Manual, id.
6

LEGAL PRECEDENT -- ISSUE 2

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. ”

10

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of 

FECA if recovery would cause hardship because the beneficiary needs substantially all of his 

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.11

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.12

Section 10.438 of 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. 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 $1,157.48 

overpayment of compensation.

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

10 5 U.S.C. § 8129(a)-(b); see R.Q., Docket No. 18-0964 (issued October 8, 2019); D.C., Docket No. 17-0559 

(issued June 21, 2018).

11 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 expensesif monthly income does not exceed monthly

expenses by more than $50.00. Supra note 8 at Chapter 6.400.4a(3) (September 2018). 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 a n individual 

with a spouse or dependent, plus $1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).

12 20 C.F.R. § 10.437.

13 Id. at § 10.438.

14 Id.; see also O.B., Docket No. 19-0034 (issued April 22, 2019).
7

In its preliminary overpayment determination dated April 29, 2019, OWCP requested that 

appellant provide a completed overpayment recovery questionnaire and supporting financial 

information. It advised her that waiver of recovery would be denied if she failed to furnish the 

requested financial information within 30 days. Appellant returned the Form OWCP-20 

overpayment recovery questionnaire and reported total monthly income of $2,079.72 and total

monthly expenses of $2,018.58. As her income exceeded her expenses by more than $50.00, 

OWCP properly determined that appellant had not demonstrated that she needed all of her income 

for ordinary and necessary living expenses.

15

OWCP also considered whether repayment would be against equity and good conscience 

and properly determined that the evidence failed to establish financial hardship. The Board finds 

that OWCP properly denied waiver of recovery of the $1,157.48 overpayment of compensation .

LEGAL PRECEDENT -- ISSUE 3

Once OWCP accepts a claim, it has the burden of proof to establish that the disability has 

ceased or lessened in order to justify termination or modification of compensation benefits. 16

A wage-earning capacity determination is a finding that a specific amount of earnings, 

either actual earnings or earnings from a selected position, represents a claimant’s ability to earn 

wages.17 Compensation payments are based on the wage-earning capacity determination, and it 

remains undisturbed until properly modified.18

Under section 8115(a) of FECA wage-earning capacity is determined by the actual wages 

received by an employee if the earnings fairly and reasonably represent his or her wage -earning 

capacity.19 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or 

if the employee has no actual earnings, the wage-earning capacity is determined with due regard 

to the nature of the injury, the degree of physical impairment, the usual employment, age, 

qualifications for other employment, the availability of suitable employment, and other factors and 

circumstances which may affect the wage-earning capacity in his or her disabled condition.20 

Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor 

market under normal employment conditions. OWCP applies the principles set forth in Albert C. 

15 Supra note 11.

16 See R.L., Docket No. 19-1786 (issued July 6, 2020); C.H., Docket No. 19-0136 (issued May 23, 2019).

17 5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

18 See M.F., Docket No. 18-0323 (issued June 25, 2019).

19 5 U.S.C. § 8115(a).

20 Id.; see also Z.W., Docket No. 18-1000 (issued June 24, 2019).
8

Shadrick21 as codified in section 10.403 of its implementing regulations, 22 to determine the 

percentage of the employee’s LWEC.23

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted unless there is a material change in the nature and extent of 

the injury-related condition, the employee has been retrained or otherwise vocationally 

rehabilitated, or the original determination was, in fact, erroneous.24 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.25

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly determined appellant’s LWEC, effective March 18, 

2019, based on her actual earnings as a psychology services secretary.

By decision dated July 21, 2020, OWCP found that appellant had the capacity to earn 

wages as a psychology services secretary with wages of $1,097.81 per week, effective 

March 18, 2019.26 Appellant successfully performed the duties as a psychology services secretary 

from March 18, 2019 to July 21, 2020, and continuing. As such, she successfully performed the 

psychology services secretary position for at least 60 days. The Board further notes that the record 

does not establish that the psychology services secretary position constituted part-time, sporadic, 

seasonal, or temporary work.27 Moreover, the record indicates that the position was not a makeshift position designed for appellant’s particular needs.28

The wages appellant earned beginning March 18, 2019 were greater than the current wages 

of her date-of-injury job which supports that the position fairly and reasonably represented her

wage-earning capacity.29 OWCP noted the current wages of the job she held when injured and 

provided a computation of compensation work sheet which established a zero LWEC. It explained 

that the weekly pay rate when the disability occurred was $1,049.73, effective October 24, 2018. 

The current pay rate for the job and step when injured was $1,067.50, effective March 18, 2019. 

OWCP determined that appellant had actual earnings of $1,097.81 and found the current rate of 

21 5 ECAB 376 (1953).

22 20 C.F.R. § 10.403.

23 See J.H., Docket No. 18-1319 (issued June 26, 2019).

24 See S.C., Docket No. 18-0517 (issued February 25, 2020); J.A., Docket No. 17-0236 (issued July 17, 2018); 

Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993).

25 See S.C., id.; O.H., Docket No. 17-0255 (issued January 23, 2018); SeldenH. Swartz, 55 ECAB 272, 278 (2004).

26 The position had an annual salary of $57,086.

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

Wages, Chapter 2.815.5 (June 2013).

28 Id.

29 See R.L., supra note 16; S.C., supra note 24; J.A., supra note 24.
9

pay was equal to or greater than the current pay of the job held at the time of injury, therefore, 

there was no loss in wage-earning capacity.

Accordingly, the Board finds that OWCP properly determined that appellant’s earnings as 

a psychology services secretary fairly and reasonably represented her wage-earning capacity and 

they met or exceeded the current wages of the job she held when injured.

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP.

CONCLUSION

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

$1,157.48 for the period March 18 through 30, 2019. The Board finds that OWCPproperly denied 

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

appellant’s wage-loss compensation benefits, effective March 18, 2019, based on her actual 

earnings as a psychology services secretary.

ORDER

IT IS HEREBY ORDERED THATthe May 11 and July 21, 2020 decisions of the Office 

of Workers’ Compensation Programs are affirmed.

Issued: July 27, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board