United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.C., Appellant 

and 

DEPARTMENT OF EDUCATION, OFFICE OF 

SPECIAL EDUCATION & REHABILITATIVE 

SERVICES, Washington, DC, Employer 

__________________________________________ 

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Docket No. 14-1467 

Issued: July 2, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 16, 2014 appellant filed a timely appeal from January 23 and February 18, 2014 

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 OWCP met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective May 5, 2013 because she ceased to have 

residuals of her July 27, 2010 work injury after that date; (2) whether it properly determined that 

appellant received a $5,791.08 overpayment of compensation; and (3) whether OWCP abused its 

discretion by refusing to waive recovery of the overpayment. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 On June 16, 2014 appellant submitted a timely request for oral argument in connection with OWCP’s 

February 18, 2014 decision. In an order issued on February 3, 2015, the Board denied her request for oral argument 

and ordered that the present appeal proceed to a decision based on a review of the case record. 
2

FACTUAL HISTORY 

 OWCP accepted that on July 27, 2010 appellant, then a 51-year-old vocational 

rehabilitation program specialist, sustained a medial meniscus tear of her left knee, lateral 

collateral ligament sprain of her left knee, and sprain of her thoracic region due to losing her 

balance and stumbling at work.3

 Appellant stopped work and received wage-loss compensation 

beginning November 8, 2010 on the daily rolls. She was placed on the periodic rolls beginning 

February 13, 2011. 

On February 17, 2011 Dr. Hamid R. Quraishi, an attending Board-certified orthopedic 

surgeon, performed OWCP-authorized arthroscopic surgery on appellant’s left knee, including 

partial medial meniscectomy and chondroplasty of the patella. During the surgery, chondral 

lesions of the medial condyles were noted. 

In a September 21, 2012 report, Dr. Stuart J. Gordon, a Board-certified orthopedic 

surgeon serving as an OWCP referral physician, discussed appellant’s factual and medical 

history, including the treatment of her July 27, 2010 work injury4 and the findings of diagnostic 

testing from 2010 through 2012 showing degenerative disease of the thoracic spine, lumbar 

spine, and left knee. He also related his examination findings, noting that appellant complained 

of pain in her thoracic and lumbar spines but indicated that there was no appreciable paraspinal 

muscle spasm and that range of motion was full. Straight leg raise testing was negative in the 

seated and supine positions. Appellant had symmetric thigh and calf girth and mild bilateral 

varus of the legs, more on the left than right. Dr. Gordon noted that, for the right knee, appellant 

had mild medial and patellofemoral crepitus, but no irritability with full range of motion. For the 

left knee, appellant had complaints of pain through the medial proximal tibia and the 

patellofemoral region. However, there was no posterior mass or joint line tenderness with 

McMurray testing. Appellant limited her knee flexion to 100 degrees and her extension and 

quadriceps tendon mechanisms were intact. Dr. Gordon noted that appellant’s subjective 

complaints “and claims of causality to the date of injury are beyond what one would expect.” He 

diagnosed morbid obesity status post gastric bypass, not work related; preexisting extensive 

degenerative disease left knee, not work related; July 27, 2010 aggravation of preexisting left 

knee arthritis, now back to baseline; preexisting degenerative disease of the thoracolumbar spine; 

and aggravation of thoracolumbar strain, now back to baseline. Dr. Gordon concluded that 

appellant ceased to have residuals of her July 27, 2010 work injury. He found that she could 

return to her regular work as a vocational rehabilitation program specialist on a full-time basis 

and stated: 

“I do not hold the opinion that her current subjective complaints are related to the 

date of injury. In my opinion, they are related to underlying degenerative disease 

of the thoracolumbar spine and left knee. 

 3

 Appellant stated that a chair handle broke while she was standing and that she lost her balance and stumbled. 

There is no indication that she fell to the ground on July 27, 2010. 

4

 Dr. Gordon provided an accurate history of the July 27, 2010 work injury by noting that on that date a chair 

handle broke while appellant was standing and she stumbled but did not fall. 
3

“With respect to injury-related factors of disability, I do not find any residual 

objective findings, with respect to the date of injury. In my opinion, her objective 

findings are related to preexisting degenerative disease. 

“With respect to total disability, I would expect three weeks from the date of 

injury and four to six weeks from the date of arthroscopy.” 

In a March 11, 2013 letter, OWCP advised appellant that it proposed to terminate her 

wage-loss compensation and medical benefits because she ceased to have residuals of her 

July 27, 2010 work injury. It informed her that the weight of the medical evidence rested with 

the September 21, 2012 report of Dr. Gordon, the referral physician. OWCP provided appellant 

30 days to submit evidence and argument challenging the proposed termination. 

In a March 27, 2013 letter, appellant challenged the proposed termination and argued that 

she still had residuals of her work injury as evidenced by the reports of attending physicians, 

including Dr. Quraishi and Dr. Joshua A. Thomas, an osteopath. 

Appellant submitted a March 5, 2013 report in which Dr. Quraishi stated that she was 

reporting increased left knee problems. Examination of her left knee revealed tenderness in the 

medial joint line. Dr. Quraishi indicated that he had read the opinion of Dr. Gordon and did not 

agree with it. He noted that appellant had degenerative disease in her left knee and that total 

knee replacement was her only option. In an April 2, 2013 report, Dr. Quraishi stated, “Over the 

years, the patient’s degenerative arthritis has accelerated rather rapidly and now at this stage has 

reached where she needs to have a total knee replacement done.” 

In an April 4, 2013 report, Dr. Thomas noted that appellant reported that she had pain in 

the right side of her mid back and low back. He indicated that she had displacement of thoracic 

and lumbar discs and sacroiliitis but stated that she was not a current surgical candidate because 

she did not have any progressive weakness, bowel and bladder loss, or intractable pain. 

In an April 19, 2013 decision, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective May 5, 2013 because she had no residuals of her July 27, 2010 

work injury after that date. It based its termination action on the September 21, 2012 report of 

Dr. Gordon and noted that the reports of appellant’s attending physicians were of limited 

probative value regarding appellant’s work-related residuals. On May 7, 2013 appellant 

requested a hearing. 

In a July 9, 2013 notice, OWCP advised appellant of its preliminary determination that 

she received a $5,791.08 overpayment of compensation for the period May 5 to June 1, 2013. It 

noted that the overpayment occurred because her wage-loss compensation was terminated 

effective May 5, 2013 but she continued to receive wage-loss compensation through 

June 1, 2013.5

 OWCP also made a preliminary finding that appellant was at fault in creating the 

overpayment because she accepted a payment that she knew or reasonably should have known 

was incorrect. It advised her that she could submit evidence challenging the fact, amount, or 

finding of fault and request waiver of the overpayment. OWCP informed appellant that she 

 5

 The record contains documents showing that on June 1, 2013 appellant received, through an electronic transfer 

into her bank account, $5,791.08 in wage-loss compensation for the period May 5 to June 1, 2013. 
4

could submit additional evidence in writing or at prerecoupment hearing, but that a 

prerecoupment hearing must be requested within 30 days. It requested that she complete and 

return an enclosed financial information questionnaire (Form OWCP-20) within 30 days even if 

she was not requesting waiver of the overpayment. 

Appellant submitted a Form OWCP-20 which she completed on July 15, 2013. She 

indicated that she had $5,800.00 in monthly income, $2,000.00 in assets held in a savings 

account, and $7,200.00 in monthly expenses comprised of $2,700.00 for rent, $200.00 for food, 

$700.00 for utilities, $800.00 for unspecified miscellaneous expenses, and $2,800.00 for debts to 

various creditors. Appellant requested waiver of recovery of the $5,791.08 overpayment and 

asserted that she was not at fault in its creation because she assumed that the electronic payment 

she received was her last payment for valid wage-loss compensation. 

On July 17, 2013 appellant timely requested a telephonic prerecoupment hearing with an 

OWCP hearing representative regarding the preliminary overpayment notice. 

During the hearing held on December 18, 2013, appellant testified that she received a 

single electronic payment following her return to work, but that she assumed OWCP had 

correctly paid her for compensation that was due to her. She indicated that it would be a 

hardship for her to repay the overpayment of compensation and that she had borrowed $7,500.00 

from relatives but had not made any payments on those loans. Appellant discussed her current 

financial situation with respect to monthly income, monthly expenses and assets. The hearing 

representative provided her 30 days to submit additional information regarding her finances. He 

advised her that she may not claim specific expenses on a monthly basis if those expenses were 

charged to a line of credit or credit card and ultimately reflected in any minimum payment for 

the account, as this would in effect double count the expenses. 

On December 20, 2013 OWCP granted appellant a schedule award for a two percent 

permanent impairment of her right leg. Appellant received an electronic transfer of $8,969.76 on 

December 20, 2013 in connection with this schedule award. 

On January 6, 2014 appellant submitted various documents regarding her financial 

circumstances, including billing statements. An earnings statement showed she received income 

from the employing establishment of $2,827.00 every 14 days and a billing statement showed 

that her monthly mortgage was $1,646.00. Other documents showed that the minimum monthly 

charges for various expenses related to credit cards, utilities, and other debts. The total amount 

of these minimum payments equaled $4,213.00.6

 Appellant also submitted a statement claiming 

monthly expenses of $300.00 for automobile fuel, $350.00 for food and toiletries, $100.00 

monthly for miscellaneous expenses (including oil changes and parking fees), $80.00 for church 

tithing, and $50.00 to $100.00 for doctor visits and medicine. She indicated that some of these 

expenses were paid for with cash and some by using credit cards. 

In a January 23, 2014 decision, an OWCP hearing representative affirmed OWCP’s 

April 19, 2013 decision with respect to the termination action noting that OWCP met its burden 

 6

 Appellant indicated that these payments included $25.00 for a Macy’s store card and $92.00 for water from the 

Washington Suburban Sanitary Commission. 
5

of proof to terminate appellant’s wage-loss and medical benefits effective May 5, 2013 based on 

the September 21, 2012 report of Dr. Gordon.7

Later, in a February 18, 2014 decision, an OWCP hearing representative determined that 

appellant received a $5,791.08 overpayment of compensation because she received wage-loss 

compensation for the period May 5 to June 1, 2013 despite the fact that her wage-loss 

compensation had been terminated effective May 5, 2013. He found that, contrary to the 

preliminary fault determination, appellant was not at fault in creating the $5,791.08 overpayment 

because she could not have known, given the electronic transmission of the monies in a single 

payment, that she had accepted an improper payment. However, the hearing representative 

determined that the $5,791.08 overpayment was not subject to waiver. Regarding the reasoning 

for this determination, he noted that appellant’s only documented income was $2,827.00 every 

14 days. The hearing representative stated that the earnings statements provided by appellant 

showed a deduction to a savings plan of $121.00 and noted that including this deduction in net 

income resulted in biweekly income of $2,948.00 or monthly income of $6,387.00. The hearing 

representative stated: 

“In terms of monthly expenses, [appellant] documented $5,779.00 in expenses. 

Documentation of payment of her mortgage, loans from PNC, SunTrust and GE 

Capital, Verizon expenses, five credit cards, State Farm insurance, two 

department store accounts, an overdraft account, gas, electric and water bills, an 

additional life insurance plan, home security system, and a housing association. 

The reported figures were largely accepted as stated, with the exception of 

reduction of the Macy’s store account minimum payment from $25.00 monthly to 

$6.00 (as documented on the statement provided), and division of the reported 

water bill by three to account for the quarterly billing cycle documented on the 

statement. No documentation of the existence of the family loans was provided, 

and no evidence of any repayment was found. For those reasons, [OWCP] does 

not accept the expenses as reported. 

“[Appellant] further claimed $300.00 monthly for auto[mobile] fuel, $350.00 

monthly for food and toiletries, $100.00 monthly for unexplained miscellaneous 

expenses, $50.00 to $100.00 monthly for doctor visits and medications, and 

$80.00 monthly for church tithing. No support for these expenses was provided, 

but the claimant acknowledged that these expenses were paid with a combination 

of cash and credit cards. In reviewing new charges to credit cards, I find no detail 

to support such claims, but note that in the billing cycle provided to me, new 

purchases totaled $519.00. [Appellant] also failed to provide any banking 

statements to support use of cash for any expenses.... I find that roughly half of 

the claimed monthly expenses were likely paid with cash, and the balance paid 

using the previously documented credit instruments. Accordingly, of the $830.00 

 7

 The hearing representative also found that, after the proper termination action, which was effective May 5, 

2013, appellant submitted a July 27, 2012 report of Dr. Quraishi which created a new conflict in the medical opinion 

evidence regarding whether she continued to have residuals of her July 27, 2010 work injury. He remanded the case 

to OWCP for referral of appellant to an impartial medical specialist for an examination and opinion on this matter. 

After developing the medical evidence, OWCP was directed to issue a decision regarding whether appellant 

established that she had disability after May 5, 2013 due to the July 27, 2010 work injury. 
6

in expenses claimed monthly, I have accepted cash expenses of $415.00. The 

above findings result in accepted monthly expenses of $6,194.00. Net monthly 

cash flow available for repayment of the overpayment, after deduction of the 

$50.00 allowance beyond ordinary living expenses, equals $6,387.00 -- $6,194.00 

-- $50.00, or $143.00.”8

LEGAL PRECEDENT -- ISSUE 1 

Under FECA, once OWCP has accepted a claim it has the burden of justifying 

termination or modification of compensation benefits.9

 OWCP may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the 

employment.10 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.11

ANALYSIS -- ISSUE 1 

OWCP accepted that on July 27, 2010 appellant sustained a medial meniscus tear of her 

left knee, lateral collateral ligament sprain of her left knee, and sprain of her thoracic region due 

to losing her balance and stumbling at work. On February 17, 2011 Dr. Quraishi, an attending 

Board-certified orthopedic surgeon, performed OWCP-authorized arthroscopic surgery on 

appellant’s left knee, including partial medial meniscectomy and chondroplasty of the patella. In 

an April 19, 2013 decision, OWCP terminated appellant’s wage-loss compensation and medical 

benefits effective May 5, 2013 because she had no residuals of her July 27, 2010 work injury 

after that date. It based its termination action on the September 21, 2012 report of Dr. Gordon, a 

Board-certified orthopedic surgeon who served as an OWCP referral physician. In a January 23, 

2014 decision, an OWCP hearing representative affirmed OWCP’s termination of appellant’s 

wage-loss compensation and medical benefits effective May 5, 2013.12

In his September 21, 2012 report, Dr. Gordon discussed appellant’s factual and medical 

history, including the treatment of her July 27, 2010 work injury and the findings of diagnostic 

testing from 2010 through 2012 showing degenerative disease of the thoracic spine, lumbar 

spine, and left knee. He reported the findings of his physical examination noting that her 

thoracic and lumbar spines showed no appreciable paraspinal muscle spasm and that range of 

motion was full. Dr. Gordon indicated that appellant had full knee motion, other than some self-

 8

 The hearing representative found that recovery of the $5,791.08 overpayment should be made through monthly 

payments of $100.00. With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those 

cases where OWCP seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. 

Muniz, 54 ECAB 217 (2002). As appellant was not in receipt of compensation at the time of OWCP’s overpayment 

determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case. 

See Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441. 

9 I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986). 

10 Charles E. Minniss, 40 ECAB 708, 716 (1989). 

11 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

12 In the January 23, 2014 decision, the hearing representative remanded the case to OWCP for further 

development of the medical evidence, but he explicitly indicated that OWCP’s termination action effective May 5, 

2013 was proper. 
7

restricted motion on the left. He concluded that she ceased to have residuals of her July 27, 2010 

work injury. Dr. Gordon found that appellant was able to return to her regular work as a 

vocational rehabilitation program specialist on a full-time basis and stated that her current 

subjective complaints were not related to the July 27, 2010 injury. Rather, they were related to 

preexisting degenerative disease of the thoracolumbar spine and left knee. 

The Board finds that the weight of the medical evidence is represented by the thorough, 

well-rationalized opinion of Dr. Gordon. The September 21, 2012 report of Dr. Gordon 

establishes that appellant had no residuals of her July 27, 2010 work injury after May 5, 2013. 

The Board has carefully reviewed the opinion of Dr. Gordon and notes that it has reliability, 

probative value, and convincing quality with respect to its conclusions regarding the relevant 

issue of the present case. Dr. Gordon provided a thorough factual and medical history and 

accurately summarized the relevant medical evidence.13 He provided medical rationale for his 

opinion by explaining that there were no objective residuals of the July 27, 2010 work injury and 

that appellant’s continuing problems were due to the natural progression of her preexisting 

degenerative disease. 

Appellant alleged that reports of attending physicians showed that she continued to have 

residuals of the July 27, 2010 work injury. However, these reports are of limited probative value 

on this issue because they do not contain a rationalized opinion that she continued to have workrelated residuals. In March 5 and April 4, 2013 reports, Dr. Quraishi indicated that appellant 

needed total knee replacement surgery for her left knee. However, he did not indicate that this 

need was related to residuals of the July 27, 2010 work injury and, in fact, suggested that the 

surgery was necessitated by the natural progression of her preexisting degenerative disease.14 In 

an April 4, 2013 report, Dr. Thomas, an osteopath, noted that appellant had displacement of 

thoracic and lumbar discs and sacroiliitis but stated that she was not a current surgical candidate. 

He did not provide any opinion on the cause of appellant’s condition. 

With respect to the termination issue, appellant may submit new evidence or argument 

with a written request for reconsideration to OWCP within one year of this merit decision, 

pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

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 his or her duty.15 Section 8129(a) of FECA provides, in pertinent part: 

“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 

 13 See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957). 

14 Dr. Quraishi indicated that he had read the opinion of Dr. Gordon and did not agree with it. However, he did 

not provide any explanation for this brief statement. 

15 5 U.S.C. § 8102(a). 
8

prescribed by the Secretary of Labor by decreasing later payments to which an 

individual is entitled.”16

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.17 Section 8116 of FECA defines the limitations on the right to receive compensation 

benefits. This section of FECA provides that, while an employee is receiving compensation, he 

or she may not receive salary, pay or remuneration of any type from the United States, except in 

limited circumstances.18 OWCP’s regulations state in pertinent part: compensation for wage 

loss due to disability is available only for any periods during which an employee’s work-related 

medical condition prevents her from earning the wages earned before the work-related injury.19 

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly found that appellant received a $5,791.08 

overpayment of compensation. In an April 19, 2013 decision, OWCP terminated appellant’s 

wage-loss compensation and medical benefits effective May 5, 2013 because she had no 

residuals of her July 27, 2010 work injury after that date. As explained above, this termination 

action was proper. The record reveals, however, that appellant continued to receive total 

disability compensation from OWCP through June 1, 2013. Appellant was not entitled to receive 

disability compensation between May 5 and June 1, 2013 and the amount of compensation she 

received during this period, $5,791.08, represented an overpayment of compensation. For these 

reasons, she received a $5,791.08 overpayment. 

LEGAL PRECEDENT -- ISSUE 3 

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter 

that rests within OWCP’s discretion pursuant to statutory guidelines.20 These statutory 

guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an 

overpayment] 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 

this subchapter or would be against equity and good conscience.”21 If OWCP finds a claimant to 

be without fault in the matter of an overpayment, then, in accordance with section 8129(b), 

OWCP may only recover the overpayment if it determined that recovery of the overpayment 

would neither defeat the purpose of FECA nor be against equity and good conscience. 

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 

 16 Id. at § 8129(a). 

17 Id. at § 8102. 

18 Id. at § 8116(a). 

19 20 C.F.R. § 10.500. 

20 See Robert Atchison, 41 ECAB 83, 87 (1989). 

21 5 U.S.C. § 8129(b). 
9

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.22 According to 20 C.F.R. 

§ 10.437, 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.23 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.24

The Board has held that an employee who receives payments from OWCP in the form of 

direct deposit may not be at fault the first time incorrect funds are deposited into his or her 

account, as the acceptance of the resulting overpayment lacks the requisite knowledge.25 The 

Board has also held in cases involving a series of incorrect payments, where the requisite 

knowledge is established by a letter or telephone call from OWCP or simply with the passage of 

time and a greater opportunity for discovery, the claimant will be at fault for accepting the 

payments subsequently deposited.26 Previous cases have held that receiving one or two 

erroneous direct deposit payments does not necessarily create the requisite knowledge to find 

that a claimant was at fault in the creation of the overpayment.27

ANALYSIS -- ISSUE 3 

 In his February 18, 2014 decision, the hearing representative properly found that 

appellant was not at fault in the creation of the $5,791.08 overpayment because she could not 

have known, given the electronic transmission of the monies in a single payment, that she had 

accepted an improper payment.28 He then proceeded to evaluate appellant’s request for waiver 

of the overpayment under the standards for employees who are not at fault in the creation of the 

overpayment. 

 The Board finds that appellant has not established that recovery of the $5,791.08 

overpayment would defeat the purpose of FECA because she has not shown both that she needs 

 22 20 C.F.R. § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet 

current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. 

Assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse 

or dependent plus $960.00 for each additional dependent. See Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Initial Overpayment Actions, Chapter 6.200.6a (June 2009); B.F., Docket No. 13-785 (issued 

September 20, 2013). 

23 Id. at § 10.437(a), (b). 

24 Id. at § 10.437(b)(1). 

25 See Tammy Craven, 57 ECAB 689 (2006). 

26 Id. 

27 V.S., Docket No. 13-1278 (issued October 23, 2013). 

28 See supra notes 25 through 27. 
10

substantially all of her current income to meet ordinary and necessary living expenses and that 

her assets do not exceed the allowable resource base. The evidence of record supports that her 

monthly income exceeds her monthly ordinary and necessary expenses by approximately 

$193.00. Earnings statements show that appellant had monthly income of $6,387.00.29 Other 

records show that she had a monthly mortgage payment of $1,646.00. Appellant also claimed 

that she had $4,213.00 in monthly minimum payments for credit cards, utilities, and other debts. 

The hearing representative properly found that the documents of record supported $4,133.00 of 

these expenses.30 He also correctly found that appellant had established $415.00 in additional 

expenses which included outlays for automobile fuel, food, toiletries, church tithings, and 

miscellaneous expenses.31 Therefore, it has been established that appellant had monthly income 

of $6,387.00 and monthly expenses of $6,194.00. 

 As appellant’s current income exceeded her current ordinary and necessary living 

expenses by approximately $193.00, i.e., an amount more than $50.00, she has not shown that 

she needs substantially all of her current income to meet current ordinary and necessary living 

expenses.32 Because she has not met the first 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 second prong of the test, i.e., whether appellant’s assets do not exceed the allowable resource 

base. 

 Appellant also has not established that recovery of the overpayment would be against 

equity and good conscience because she has not shown that she would experience severe 

financial hardship in attempting to repay the debt or that she relinquished a valuable right or 

changed her position for the worse in reliance on the payment which created the overpayment.33

Because appellant has failed to establish that recovery of the overpayment would defeat 

the purpose of FECA or be against equity and good conscience, she has failed to show that 

OWCP abused its discretion by refusing to waive the overpayment. 

On appeal, appellant argued that she did not have the financial capacity to repay the 

$5,791.08 overpayment. As noted, the Board’s jurisdiction with respect to the recovery of an 

overpayment is limited to those cases where OWCP seeks recovery from continuing 

 29 In reaching this figure, the hearing representative properly noted that appellant’s salary from the employing 

establishment was $2,948.00 every 14 days (including monies allocated to savings) and that converting this figure to 

a full month equaled $6,387.00. 

30 The hearing representative explained how the evidence showed that $80.00 of these expenses were not 

justified, including $19.00 of a claimed Macy’s store bill and $61.00 of a water bill (due to conversion of a larger 

claimed amount to a monthly expense). He also noted that appellant had not documented her claim that she lent 

$7,500.00 to relatives. 

31 The hearing representative determined that $830.00 of these expenses were valid, but that half of the expenses 

were already included in appellant’s minimum monthly payments on credit cards. It appears that he did not accept 

appellant’s claim of $50.00 to $100.00 in unreimbursed medical expenses as he did not include this claimed expense 

in the $830.00 figure. The Board notes that there is no evidence in the record supporting these medical expenses. 

32 See supra note 22. 

33 See supra notes 22 and 23. 
11

compensation benefits.34 Because OWCP did not seek recovery from continuing compensation 

benefits, appellant’s argument on appeal relates to a matter not within the Board’s jurisdiction. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective May 5, 2013 because she ceased to have residuals 

of her July 27, 2010 work injury after that date. The Board further finds that OWCP properly 

determined that appellant received a $5,791.08 overpayment of compensation and that it did not 

abuse its discretion by refusing to waive recovery of the overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the February 18 and January 23, 2014 decisions of 

the Office of Workers’ Compensation Programs are affirmed. 

Issued: July 2, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 34 See supra note 8.