United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

BRONX VETERANS ADMINISTRATION 

HOSPITAL, Bronx, NY, Employer 

__________________________________________ 

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Docket No. 15-241 

Issued: April 3, 2015 

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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 12, 2014 appellant, through her attorney, filed a timely appeal of May 19 

and August 25, 2014 Office of Workers’ Compensation Programs’ (OWCP) merit decisions. 

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 the case. 

ISSUES 

The issues are: (1) whether OWCP properly suspended appellant’s compensation 

benefits effective June 1, 2014 for failure to complete a Form CA-1032 when requested; 

(2) whether appellant received an overpayment of compensation in the amount of $11,374.96 for 

the period July 3, 2011 through June 28, 2014 due to the death of his dependent for which he was 

not at fault; (3) whether OWCP properly denied waiver of recovery of the overpayment; and 

(4) whether OWCP properly determined to collect the overpayment through withholding $100.00 

from his continuing compensation benefits. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On December 13, 1977 appellant, then a 54-year-old medical aid, filed a traumatic injury 

claim alleging that on December 12, 1977 he pulled a muscle in his lower back while removing 

the carriage out of a sterilizer. OWCP accepted his claim for displacement of a lumbar disc 

without myelopathy on February 10, 1978. Appellant underwent a lumbar laminectomy on 

March 29, 1978. OWCP entered him on the periodic rolls. Appellant underwent additional back 

surgery on March 9, 1983. OWCP terminated his compensation benefits effective May 17, 1984. 

On July 8, 1986 it reinstated appellant’s compensation benefits retroactive to May 17, 1984. By 

decision dated December 11, 1987, OWCP reduced his compensation benefits based on his 

actual earnings as a security guard beginning January 1, 2005. Appellant married on 

February 23, 1988. He underwent additional back surgeries on May 2, 1997. 

Appellant completed a Form CA-1032 which included reporting any improvement in his 

medical condition, any employment, any change in the status of claimed dependents, any third 

party settlement, and any income or change in income from federally-assisted disability or 

benefits programs on May 9, 2010 and listed his only dependent as his wife. OWCP informed 

him that if the form was not completed and returned within 30 days then his benefits would be 

suspended in accordance with 20 C.F.R. § 10.528. Appellant provided OWCP with a change of 

address on December 2, 2010. He completed a Form CA-1032 on April 30, 2011 and listed his 

wife as his only dependent. On March 7, 2012 OWCP requested that appellant complete a Form 

CA-1032. Appellant completed this form on March 11, 2012 and indicated that he had no 

dependents. He stated that his wife died on July 3, 2011. On March 6, 2013 OWCP requested 

that appellant complete a Form CA-1032. Appellant completed this form on March 29, 2013 and 

indicated that he had no dependents. 

In a letter dated March 11, 2014, OWCP requested that appellant complete a Form CA1032. This form was to be completed within 30 days or appellant’s benefits would be suspended 

in accordance with 20 C.F.R. § 10.528. 

By decision dated May 9, 2014, OWCP suspended appellant’s compensation benefits on 

the grounds that he had not completed the March 11, 2014 Form CA-1032. It noted that section 

10.528 of its regulations required that he report earnings from any employment, whether full or 

part time. If a timely response was not made, then the right to compensation for wage-loss 

would be suspended until the report was received, at which time compensation would be restored 

retroactively. OWCP suspended appellant’s compensation effective June 1, 2014. It stated, “If 

you complete and return the enclosed copy of Form CA-1032, your compensation benefits will 

be restored retroactively to the date they were suspended.” 

Appellant submitted a Form CA-1032 dated May 7, 2014 on May 14, 2014. This form 

indicated that he had no dependents. OWCP indicated that it received this form and the record 

contains continuing compensation benefits. 

In a preliminary determination of overpayment dated July 14, 2014, OWCP determined 

that appellant had received an overpayment of compensation in the amount of $11,374.96 

because his dependent spouse died on July 3, 2011. It stated that he continued to receive 

compensation at the 3/4 rate through June 28, 2014. OWCP stated that appellant received 
3

compensation in the amount of $94,409.63 based on the 3/4 augmented compensation rate for a 

dependent, but was entitled to receive only $83,034.67 at the 2/3 compensation rate this resulted 

in an overpayment of $11,374.96. It found that he was at fault in the creation of the 

overpayment and directed him to complete an overpayment recovery questionnaire. 

Appellant requested that OWCP make a decision on the written evidence and requested 

waiver of recovery of the overpayment on July 23, 2014. He stated that he had notified OWCP 

of his wife’s death and submitted her death certificate. Appellant stated that he had consistently 

completed Form CA-1032’s and notified OWCP that he had no dependents after his wife’s death 

which he reported on March 11, 2012. 

Appellant submitted the overpayment recovery questionnaire on July 30, 2014 and listed 

his monthly income as $100.00 for social security benefits, other benefits of $259.00, and FECA 

benefits of $2,494.00 for total monthly income of $2,853.00. He indicated that his housing 

expenses were $2,140.00 per month, his food $85.00 per month, his utilities $80.00 per month, 

and miscellaneous expenses of $115.00. Appellant listed credit card debt of $3,000.00 with a 

monthly payment of $150.00. He indicated that his total monthly expenses were $2,570.00. 

Appellant listed his assets as a checking account balance of $4,414.00, savings account balance 

of $53,062.00 and cash of $25.00 for a total of $57,501.00. 

By decision dated August 25, 2014, OWCP finalized the overpayment in the amount of 

$11,374.96 and found that appellant was not at fault in the creation of the overpayment. It found 

that he was not entitled to waiver of recovery as his income exceeded his expenses by $254.00 

per month and as he had $57,501.00 available in his savings and checking accounts. OWCP 

found that appellant could make a monthly payment without undue hardship and that he had not 

shown that recovery would defeat the purpose of FECA or be against equity and good 

conscience. It determined to recover the overpayment by deducting $100.00 from his monthly 

compensation beginning August 24, 2014. 

LEGAL PRECEDENT -- ISSUE 1 

FECA authorizes the Secretary of Labor to require a partially disabled employee to report 

his or her earnings from employment or self-employment, by affidavit or otherwise, in the 

manner and at the times the Secretary specifies.2

 

Under section 10.528 of OWCP’s implementing federal regulations, an employee in 

receipt of compensation benefits must complete an affidavit as to any work or activity indicating 

an ability to work which the employee has performed for the past 15 months.3

 If an employee 

who is required to file such a report fails to do so within 30 days of the date of the request, his or 

her right to compensation for wage loss is suspended until OWCP receives the requested report.4

 

 2

 5 U.S.C. § 8106(b). 

3

 20 C.F.R. § 10.528. 

4 G.W., Docket No. 13-1019 (issued August 22, 2013); Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius 

Beverly, 53 ECAB 305 (2002). 
4

At that time, OWCP will reinstate compensation retroactive to the date of suspension if the 

employee remains entitled to compensation. 

ANALYSIS -- ISSUE 1 

The record establishes that on March 11, 2014 OWCP sent appellant a properly addressed 

request to complete and return a Form CA-1032, providing information about his employment 

and income for the prior 15 months. It explained that federal regulations required him to 

complete, sign and return the form. OWCP notified appellant that, if he did not completely 

answer all questions and return the signed statement within 30 days, it would suspend his 

benefits. 

Notwithstanding such notice, appellant did not return the completed form within 30 days 

as requested. As he did not complete and sign the Form CA-1032 affidavit reporting all 

employment and self-employment, as required by federal regulations, the Board finds that 

OWCP properly suspended his right to compensation for wage loss under section 10.528.5

 The 

record indicates that appellant did submit a properly completed Form CA-1032 on May 14, 2014 

and that OWCP properly reinstated his compensation benefits. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8102 of FECA6 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.7 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.8

The basic rate of compensation paid under FECA is 66 2/3 percent of the injured 

employee’s monthly pay.9

 Under section 8110 of FECA, an employee is entitled to 

compensation at the augmented rate of 3/4 of his or her weekly pay if he or she has one or more 

dependents. A dependent means a wife if: (a) she is a member of the same household as the 

employee; (b) she is receiving regular contributions from the employee for his support; or (c) the 

employee has been ordered by a court to contribute to her support.10 

 5 Id.

6

 5 U.S.C. § 8102. 

7 Id. at § 8102(a); R.L., Docket No. 14-1006 (issued January 26, 2015). 

8 Id. at § 8129(a). 

9 Id. at § 8105(a)(2). 

10 Id. at § 8110(a)(2). 
5

ANALYSIS -- ISSUE 2 

Appellant claimed his wife as a dependent and OWCP accordingly paid him wage-loss 

compensation at the augmented rate of 75 percent. He informed OWCP of the death of his wife 

on March 11, 2012 in a Form CA-1032 and indicated that he had no dependents. Appellant 

stated that his wife died on July 3, 2011. In Forms CA-1032 dated March 29, 2013 and May 7, 

2014, he advised that he was not married and had no dependents. The Board finds that, pursuant 

to FECA, appellant had no dependents as of July 3, 2011. 

The record confirms that appellant continued to receive compensation at the augmented 

rate for dependents for the period July 3, 2011 through June 28, 2014. An overpayment of 

compensation is therefore established. The amount of compensation actually paid during this 

period, $94,409.63, less the compensation appellant should have received at the correct pay rate 

and correct rate of compensation at 66 2/3 percent, $83,034.67, establishes an overpayment of 

compensation in the amount of $11,374.96. Compensation payment worksheets in the record 

confirm these figures. The Board will therefore affirm OWCP’s August 25, 2014 decision on the 

issues of fact and amount of overpayment. 

LEGAL PRECEDENT -- ISSUE 3 

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

“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later 

payment to which the individual is entitled.11 The only exception to this requirement that an 

overpayment must be recovered is set forth in section 8129(b): 

“Adjustment or recovery by the United States may not be made when 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 is not sufficient, in and of itself, for 

OWCP to waive 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,” pursuant to the guidelines provided in the implementing federal regulations. 

 Section 10.436 of the implementing regulations12 provide that recovery of an 

overpayment will defeat the purpose of FECA if recovery would cause hardship by depriving a 

presently or formerly entitled beneficiary of income and resources needed for ordinary and 

necessary living expenses and outlines the specific financial circumstances under which recovery 

may be considered to defeat the purpose of FECA. 

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 

 11 Id. at § 8129(a). 

12 20 C.F.R. § 10.436. 
6

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.13 

Section 10.438(a) provides that the individual who received the overpayment is 

responsible for providing information about income, expenses and assets as specified by OWCP, 

as 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.14 This information would 

also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that 

failure to submit the requested information within 30 days of the request shall result in denial of 

waiver.15

ANALYSIS -- ISSUE 3 

OWCP determined that appellant was without fault in creating the overpayment. 

Because he is without fault in the matter of the overpayment, OWCP must adjust later payments 

only if adjustment would not defeat the purpose of FECA or be against equity and good 

conscience. Appellant provided an overpayment recovery questionnaire which indicated that his 

monthly income of $2,853.00 exceeded his monthly expenses of $2,570.00 by more than 

$283.00. The Board thus finds that, as appellant’s monthly income exceeds his documented 

reasonable monthly expenses by $283.00, he is not entitled to waiver of recovery as she does not 

need substantially all of his income to meet current ordinary and necessary expenses.16 An 

individual is deemed to need substantially all of his or her current income to meet current 

ordinary and necessary living expenses if monthly income does not exceed monthly expenses by 

more than $50.00.17 Appellant also indicated that he had savings and checking account balances 

of $57,501.00. OWCP’s procedures provide that assets must not exceed a resource base of 

$4,800.00 for an individual.18 Appellant’s assets of $57,501.00 exceed the qualifying amount for 

waiver of $8,000.00 for an individual.19

Additionally, the evidence does not demonstrate that repayment of the overpayment 

would be against equity and good conscience. Appellant submitted no argument that he relied 

upon the incorrect payments to his detriment or that he would experience severe financial 

hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery 

of the overpayment. 

 13 Id. at § 10.437. 

14 Id. at § 10.438(a). 

15 Id. at § 10.438(b). 

16 P.G., Docket No. 14-227 (issued January 9, 2015). 

17 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.200.6a(1)(a) (June 2009). 

18 See 5 U.S.C. § 8116(a); 20 C.F.R. § 10.500. 

19 C.P., Docket No. 14-975 (issued September 11, 2014). 
7

LEGAL PRECEDENT -- ISSUE 4 

The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those 

cases where OWCP seeks recovery from continuing compensation under FECA. Section 

10.441(a) of the regulations provide: 

“When an overpayment has been made to an individual who is entitled to further 

payments, the individual shall refund to OWCP the amount of the overpayment as 

soon as the error is discovered or his or her attention is called to same. If no 

refund is made, OWCP shall decrease later payments of compensation, taking into 

account the probable extent of future payments, the rate of compensation, the 

financial circumstances of the individual and any other relevant factors, so as to 

minimize any hardship.”20

ANALYSIS -- ISSUE 4 

OWCP found that appellant’s monthly income exceeded his monthly compensation by 

more than $200.00 per month. It stated that given his income and savings that he could repay the 

overpayment through a withholding of $100.00 from his continuing monthly compensation 

benefits. The Board finds that OWCP properly considered the probable extent of future 

payments, the rate of compensation, the financial circumstances of appellant and any other 

relevant factors, so as to minimize any hardship in determining the rate of recovery. 

CONCLUSION 

The Board finds that OWCP properly suspended appellant’s compensation benefits due 

to his failure to timely complete the requested Form CA-1032. The Board further finds that 

appellant received an overpayment of compensation in the amount of $11,374.96 for which he 

was not at fault, but was not entitled to waiver. The Board also finds that OWCP properly 

determined to recover the overpayment at the rate of $100.00 per month from appellant’s 

continuing compensation benefits. 

 20 20 C.F.R. § 10.441. 
8

ORDER 

IT IS HEREBY ORDERED THAT the August 25 and May 19, 2014 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: April 3, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board