United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.D., Appellant

and

DEPARTMENT OF ENERGY, ENERGY 

INFORMATION ADMINISTRATION, 

Washington, DC, Employer

__________________________________________

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Docket No. 20-0963

Issued: January 6, 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 March 30, 2020 appellant filed a timely appeal from a January 30, 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.2

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $46,507.36 for the period April 17, 2012 through January 5, 2019, for which she was 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the January 30, 2020 decision, 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

without fault, because health benefits insurance (HBI) premiums had not been properly deducted 

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

overpayment.

FACTUAL HISTORY

On January 28, 1985 appellant, then a 31-year-old assistant secretary, filed a traumatic 

injury claim (Form CA-1) alleging that she slipped and fell on October 29, 1984 while in the 

performance of duty. OWCP initially accepted the claim for neck sprain, brachial neuritis, thoracic 

and lumbosacral neuritis, lumbar disc herniation and disc bulge. It subsequently accepted cervical 

radiculitis, lumbar radiculitis and an aggravation of lumbar disc herniation. OWCP paid appellant 

wage-loss compensation on the supplemental rolls as of December 18, 2001 and on the periodic 

rolls as of June 16, 2002.3

On November 21, 2018 appellant submitted a Health Benefits Election Form (Standard 

Form 2809) seeking to change her current health care plan under Care First Blue Choice (2G2) to 

Blue Cross Blue Shield (113), effective January 6, 2019.4

In a May 17, 2019 worksheet for the period April 17, 2012 through January 5, 2019, 

OWCP explained that health insurance premiums for Care First Blue Choice (2G2) were not

properly deducted for the above period and amounted to a total overpayment of $46,507.36. The 

following deductions for code 2G2 should have been deducted: for the period April 17, 2012 

through January 12, 2013, a total of $2,881.70; for the period January 13, 2013 through 

January 11, 2014, a total of $4,327.44; for the period January 12, 2014 through January 10, 2015, 

a total of $5,843.24; for the period January 11, 2015 through January 9, 2016, a total of $6,433.44; 

for the period January 10, 2016 through January 7, 2017, a total of $7,176.00; for the period 

January 8, 2017 through January 6, 2018, a total of $9,027.46; and for the period January 7, 2018 

through January 5, 2019, a total of $10,818.08, for a total of $46,507.36. The overpayment was 

calculated as the difference between the amount of deductions which were made ($0.00) and the 

deductions that should have been made ($46,507.36).

In a preliminary overpayment determination dated June 24, 2019, OWCP notified 

appellant that an overpayment of compensation in the amount of $46,507.36 had been created 

because health insurance premiums had not been properly deducted from her FECA compensation 

for the period April 17, 2012 through January 5, 2019. It further advised her of its preliminary 

determination that she was without fault in the creation of the overpayment. OWCP provided 

3 By decision dated April 17, 2012, OWCP reduced appellant’s wage-loss compensation benefits, effective that 

date, finding that the constructed position of Customer Service Representative fairly and reasonably represented 

appellant’s wage-earning capacity. By decision dated December 27, 2012, anOWCP hearing representative affirmed 

the April 17, 2012 loss of wage-earning capacity determination.

4

In a letter dated February 5, 2019, OWCP informed appellant that the premiums for her selected health insurance 

plan cost $341.14 every 28 days. As she was only entitled to wage-loss compensation every 28 days in the amount of 

$318.00, her health benefit premium resulted in a negative balance of $23.14 every 28 days, or $25.07 a month. 

Accordingly, appellant was advised that, in order to keep her health insurance under Blue Cross Blue Shield, she had 

to make monthly payments of $25.07. She subsequently paid the balance of her health insurance premiums for the 

year.
3

appellant an overpayment action request form and an overpayment recovery questionnaire (Form 

OWCP-20). Additionally, it notified her 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 23, 2019 appellant requested a prerecoupment hearing before a representative of 

OWCP’s Branch of Hearings and Review. She indicated that she was requesting waiver of 

recovery of the overpayment as she was found without fault in the creation of the overpayment. 

Attached was a July 23, 2019 completed Form OWCP-20 and supporting financial documentation. 

Appellant listed her total household monthly income as $2,984.65, which included a breakdown 

of her spouse’s income, which she noted was earned predominately in the first quarter of the year. 

She indicated that she had no income. Appellant indicated that she had monthly expenses of 

$3,618.40 includingtwo mortgages, at $1,594.80 monthly and at $139.24 monthly, food at$685.00 

monthly, clothing at $159.00 monthly and provided itemized expenses on the attached sheet, 

$790.45 in utilities, $250.00 for monthly automobile maintenance. She also indicated that she had 

$943.20 in monthly expenses for other debts being paid by monthly installments. Appellant

reported over $15,000.00 in personal funds, which included $100.00 cash on hand, a checking 

account balance of over $11,000.00, and a savings account balance of over $4,000.00. She also 

submitted copies of taxes, bank statements, and copies of billing statements for the expenses listed, 

with the exception of groceries/food and clothing. 

During the telephonic hearing held on November 15, 2019, appellant testified regarding 

the alleged overpayment of compensation and noted that she understood that premiums for her 

selected health insurance plan were not deducted from her compensation, which resulted in an 

overpayment for the period April 17, 2012 through January 5, 2019. Her husband testified 

regarding his income, noting that he was not a salaried employee, so his total income fluctuated. 

Appellant’s husband indicated that as of July 2019, when the Form OWCP-20 was filed, his sixmonth income was $12,881.00, which equated to $2,091.00 monthly. He testified that his current 

income had not changed significantly. Appellant’s husband further testified that from January to 

April he was self-employed and that income was used to pay bills during the year. He testified 

that the $11,000.00 was from his business account. Appellant’s husband also noted that evidence 

submitted showed that the business account gets “drained down to zero by the end of the year or 

close to it anyway.” He testified that they spend approximately $700.00 monthly for food, $160.00 

monthly for clothing, and $790.46 for utilities. Appellant’s husband further testified that they have 

two mortgages, approximately $11,000.00 in a checking account, and $4,000.00 in a savings 

account. 

By decision dated January 30, 2020, the hearing representative finalized the June 24, 2019 

preliminary overpayment determination. The hearing representative found that appellant had 

received an overpayment of compensation in the amount of $46,507.36 for the period April 17, 

2012 through January 5, 2019, because OWCP failed to properly deduct health insurance 

premiums from her FECA compensation. The hearing representative further found that appellant 

was without fault in the creation of the overpayment, but denied wavier of recovery of the 

overpayment. Based on the documentation provided, the hearing representative calculated 

appellant’s monthly household income as $2,984.65 and monthly household expenses as 
4

$4,561.54, noting that her monthly expenses exceeded the monthly income by $1,576.89.5 The 

hearing representative further found, however, that appellant’s assets exceeded the allowable 

resource base of $10,300.00 for an individual with a spouse as the business bank statements 

pertaining to appellant’sspouse’s seasonal tax work show assets of $13,883.38. Because appellant

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

defeat the purpose of FECA, the hearing representative found it unnecessary to conside r the first 

prong of the test, i.e., whether appellant required substantially all of her income to meet ordinary 

living expenses. The hearing representative required recovery of the overpayment by monthly 

payments of $250.00, noting that appellant did not receive FECA compensation as the cost of her 

health insurance coverage exceeded her 28-day compensation entitlement resulting in a negative 

amount. 

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.6 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 

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

decreasing later payments to which an individual is entitled.7

An employee entitled to disability compensation may continue his or her health benefits 

under the Federal Employees Health Benefits (FEHB) program. The Office of Personnel 

Management (OPM), which administers the FEHB program, by regulation provides guidelines for 

the registration, enrollment, and continuation of enrollment for federal employees. In this 

connection, 5 C.F.R. § 890.502(a)(1) provides:

“Employees and annuitants are responsible for paying the enrollee share of the cost 

of enrollment for every pay period during which they are enrolled. An employee 

or annuitant incurs a debt to the United States in the amount of the proper employee 

or annuitant withholding required for each pay period during which they are 

5 The hearing representative noted that the wages were based on appellant’s spouse’s year-to-date income of 

$12,881.01 divided by 6.16 months or $2,091.07 plus his secondary income for partial year employment during 2018, 

or $889.58 monthly. This equates to a total of $2,980.65. As appellant also included $4.00 for “other income,” this 

equates to a total of $2,984.66. The hearing representative noted that appellant’s 2018 taxes listed the spouse’s annual 

income of $43,146 or $2,793.73 monthly income after taxes. She found that while appellant’s 2019 monthly income 

was consistent with the 2018 annual income, using appellant’s 2018 income was beneficial to the claimant in the 

consideration of a waiver or repayment calculation. The hearing representative also noted that documentation of 

record supported appellant’s monthly averages for utilities, as well as monthly debts for car payments and minimum 

monthly payments for credit cards and a loan. She further found that while appellant did not provide specific 

documentation for food or clothing expenses, the expenses were taken at face value as they were based on national 

standards and were in line with ordinary living expenses for appellant’s area.

6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).
5

enrolled if the appropriate health benefits withholdings or direct premium payments 

are not made.”

8

In addition, 5 C.F.R. § 890.502(c)(1) provides:

“An agency that withholds less than the amount due for health benefits 

contributions from an individual’s pay, annuity or compensation must submit an 

amount equal to the uncollected employee contributions and any applicable agency 

contributions required to OPM for deposit in the Employees Health Benefits 

Fund.”

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Under applicable OPM regulations, the employee or annuitant is responsible for payment 

of the employee’s share of the cost of enrollment.10 An establishment that withholds less than the 

proper health benefits contribution must submit an amount equal to the sum of the uncollected 

deductions.11 The Board has recognized that, when an under withholding of health insurance 

premiums is discovered, the entire amount is deemed an overpayment of compensation because 

OWCP must pay the full premium to OPM when the error is discovered.12

ANALYSIS -- ISSUE 1

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

$46,507.36 for the period April 17, 2012 through January 5, 2019, for which she was withoutfault, 

because health insurance premiums had not been properly deducted from her FECA compensation.

The record reveals that appellant changed her Federal Health Benefits plan enrollment from 

HBI code 2G2 to HBI code 113, effective January 6, 2019. Health insurance premiums from

April 17, 2012 through January 5, 2019 were supposed to have been deducted under HBI code 

2G2 in the amount of $46,507.36, but were not deducted. The difference in the underdeduction of 

appellant’s premium created an overpayment of $46,507.36. When an underwithholding of 

premiums is discovered, the amount is deemed an overpayment of compensation to the recipient. 

OWCP must pay the full amount of the premium to OPM when the error is discovered. 13 Because 

of the under deduction of health insurance premiums to reflect appellant’s coverage under HBI 

code 2G2, an overpayment of compensation was created in the amount of $46,507.36. The Board 

8

5 C.F.R. § 890.502(a)(1).

9

Id. at § 890.502(c).

10 Id. at § 890.502(b)(1).

11 Id. at § 890.502(d).

12 D.B., Docket No. 19-1742 (issued March22, 2021); R.M., Docket No. 19-0183 (issued November 18, 2019); 

J.W.,Docket No. 14-1531(issued November 3, 2014); James Lloyd Otte, 48 ECAB 334 (1997).

13 Id., see also KeithH. Mapes, 56 ECAB 130 (2004).
6

thus finds that an overpayment of compensation in the amount of $46,507.36 was created f or the 

period April 17, 2012 through January 5, 2019 for which appellant was without fault. 

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA14 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. Thus, a 

finding that appellant was without fault does not automatically result in waiver of the overpayment. 

OWCP must exercise its discretion to determine whether recovery of the overpayment would 

defeat the purpose of FECA or would be against equity and good conscience. 15

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 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. 16 An individual’s liquid assets 

include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual 

funds, and certificates of deposits. Nonliquid assets include, but are not limited to, the fair market 

value of an owner’s equity in property such as a camper, boat, second home, furnishings/supplies, 

vehicle(s) above the two allowed per immediate family, retirement account balances (such as 

Thrift Savings Plan or 401(k)), jewelry, and artwork.

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 

her position for the worse.

ANALYSIS -- ISSUE 2

The Board finds that this case is not in posture for decision regarding waiver of recovery 

of the overpayment.

In its January 30, 2020 decision, the hearing representative denied waiver of recovery, 

finding that appellant’s assets exceeded the allowable resource base of $10,300.00 for an 

individual with a spouse. The hearing representative, however, failed to explain what facts were 

14 Supra note 1.

15 G.L., Docket No. 19-0297 (issued October 23, 2019).

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

Chapter 6.400.4(a)(2) and (3) (September 2018).
7

used in determining that appellant’s assets exceeded the resource base. OWCP is required to make 

findings of fact and a statement of reasons regarding the material facts of the case. Due to the lack 

of clarity in OWCP’s findings on waiver of recovery of the overpayment, it is necessary to remand 

the case for OWCP to make appropriate findings on the issue.17 On remand, OWCP shall review 

all of the evidence of record and, following any further development deemed necessary, issue a 

de novo decision regarding waiver of the recovery of the overpayment.

CONCLUSION

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

of compensation in the amount of $46,507.36 for the period April 17, 2012 through January 5, 

2019, for which she was not at fault, because HBI premiums had not been properly deducted from 

her FECA compensation. The Board further finds that the case is not in posture for decision with 

regard to waiver of recovery of the overpayment. 

17 See Paula J. Lewis, Docket No. 04-0506 (issued June 21, 2004).
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ORDER

IT IS HEREBY ORDERED THAT the January 30, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board. 

Issued: January 6, 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