United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Durham, NC, Employer 

__________________________________________ 

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Docket No. 14-227 

Issued: January 9, 2015 

Appearances: Oral Argument July 22, 2014 

Appellant, pro se 

No appearance, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 12, 2013 appellant filed a timely appeal from a May 30, 2013 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 the case. 

ISSUES 

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $276,526.36 because she received dual 

Department of Veterans Affairs (VA) and FECA benefits for the same condition (manic 

depression); (2) whether OWCP properly found her at fault for the period December 16, 2003 to 

August 25, 2012, with an overpayment of $237,356.56, and thus she was not entitled to waiver 

for this period; and (3) whether OWCP properly denied waiver for the period June 16, 2002 to 

December 15, 2003, with an overpayment of $39,169.90, when she was found not at fault. 

 1

 5 U.S.C. §§ 8101-8193. 
2

On appeal and at oral argument appellant asserted that the condition accepted by OWCP 

was different than that accepted by VA and that, as she had elected VA compensation, she was 

not at fault when OWCP continued to pay wage-loss compensation. She further testified that she 

had timely submitted financial information to OWCP. 

FACTUAL HISTORY 

On June 8, 2000 appellant, a 35-year-old postal window clerk, filed an occupational 

disease claim alleging that working in a stressful environment aggravated preexisting anxiety and 

panic attacks. On April 12, 2001 OWCP accepted that she sustained temporary aggravation of 

preexisting manic depression. Appellant stopped work on June 1, 2001 and was placed on the 

periodic compensation rolls at the augmented 3/4 rate. 

In correspondence dated September 4, 2001, the VA informed appellant that her rating 

for major depression and anxiety with panic attacks had been increased from 70 percent to 100 

percent effective May 3, 2001. 

By letter dated November 17, 2003, OWCP informed appellant that, as she was receiving 

VA and FECA benefits for the same condition, she would have to elect between VA and FECA. 

Appellant was informed that an overpayment of compensation had been created and it would 

continue to grow until she made her election. In a December 16, 2003 letter, she indicated that 

she was electing VA benefits. 

OWCP however did not terminate appellant’s FECA benefits in 2003 and in 

October 2008 appellant began receiving compensation at the nonaugmented 2/3 rate as she no 

longer had dependents. She reported receiving VA benefits on multiple EN1032 forms. 

Appellant’s wage-loss compensation was finally terminated on August 25, 2012, as she had 

elected VA benefits. 

On September 12, 2012 OWCP issued a preliminary finding that an overpayment in 

compensation in the amount of $276,526.36 had been created because appellant had received 

dual VA and FECA benefits for the same condition. It found her without fault for the period 

June 16, 2002 to December 15, 2003 with an overpayment amount of $39,169.80, and with fault 

for the period December 16, 2003 to August 25, 2012, with an overpayment in the amount of 

$237,356.56. A September 12, 2012 overpayment worksheet and computer printouts indicated 

that appellant received FECA compensation totaling $276,526.36 for the period June 16, 2002 to 

August 25, 2012, which included net compensation of $237,356.56 from December 16, 2003 to 

August 25, 2012. 

On October 11, 2012 appellant requested a prerecoupment hearing and submitted an 

overpayment questionnaire in which she indicated that she had monthly income of $4,345.00 and 

monthly expenses of $3,895.00. At the hearing, held on February 19, 2013, she maintained that 

the employment injury was due to harassment at work and was therefore a separate injury. 

Appellant testified with regard to her expenses and indicated that she had filed for bankruptcy. 

The hearing representative asked her to submit additional financial information documenting her 

claimed expenses. 
3

In a May 30, 2013 decision, an OWCP hearing representative finalized that appellant 

received an overpayment of compensation in the amount of $276,526.36 for the period June 12, 

2001 to August 26, 2012. She noted that appellant had not submitted further financial 

information. The hearing representative found that appellant was without fault for the period 

June 16, 2002 to December 15, 2003, when she received compensation totaling $39,169.80, and 

with fault for the period December 16, 2003 to August 25, 2012, when she received 

compensation of $237,356.56,2

 because she accepted a payment she knew or should have known 

to be incorrect. She found that appellant was not entitled to waiver, noting that she reported 

monthly income of $4,345.00 on the overpayment questionnaire, which exceeded the reported 

monthly expenses of $3,995.00. The hearing representative set recovery at $500.00 per month. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 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.3 Section 8116 of FECA defines the limitations on the right to receive 

compensation benefits.4 Section 8116(a) provides that while an employee is receiving workers’ 

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the Armed Forces, including benefits administered by the Department of Veterans 

Affairs, unless such benefits are payable for the same injury or the same death being 

compensated for under FECA.5 

ANALYSIS -- ISSUE 1 

Appellant’s occupational disease claim was accepted by OWCP for aggravation of 

preexisting chronic depression. She was paid wage-loss compensation under FECA. On 

September 4, 2001 VA informed appellant that her rating for manic depression and anxiety with 

panic attacks had been increased from 70 to 100 percent, effective May 3, 2001. Appellant also 

continued to receive FECA benefits for the accepted aggravation of preexisting chronic 

depression until August 25, 2012. 

There is a prohibition against an employee receiving benefits both under FECA and from 

VA for the same injury, including any increase in a service-connected disability where the 

increase is brought about by an injury sustained while in civilian employment.6

 Thus, when VA 

raised appellant’s disability rating from 70 to 100 percent for manic depression, shortly after her 

FECA claim was accepted as having aggravated her preexisting condition, this increase was due 

 2

 The May 30, 2013 decision contains a typographical error concerning the amount of the overpayment for the 

period December 16, 2003 to August 25, 2012, indicating that it was $236,491.81. The September 12, 2012 

overpayment worksheet documents that the amount of the overpayment for this period was $237,356.56. 

3

 5 U.S.C. § 8102(a). 

4 Id. at § 8116. 

5 Id. at § 8116(a). 

6 Kelvin L. Davis, 56 ECAB 404 (2005). 
4

to the same condition that formed the basis for entitlement under FECA.7

 An overpayment 

worksheet and computer printouts indicate that appellant received FECA compensation totaling 

$276,526.36 for the period June 16, 2002 to August 25, 2012. 

As appellant received $276,526.36 in FECA compensation while concurrently receiving 

VA benefits for the same condition, an overpayment of compensation in that amount was 

created.8

LEGAL PRECEDENT -- ISSUE 2 

 Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP 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.”9

Section 10.433(a) of OWCP regulations provide that OWCP: 

“[M]ay consider waiving an overpayment only if the individual to whom it was 

made was not at fault in accepting or creating the overpayment. Each recipient of 

compensation benefits is responsible for taking all reasonable measures to ensure 

that payments he or she receives from OWCP are proper. The recipient must 

show good faith and exercise a high degree of care in reporting events which may 

affect entitlement to or the amount of benefits. A recipient who has done any of 

the following will be found to be at fault in creating an overpayment: (1) Made 

an incorrect statement as to a material fact which he or she knew or should have 

known to be incorrect; or (2) Failed to provide information which he or she knew 

or should have known to be material; or (3) Accepted a payment which he or she 

knew or should have known to be incorrect. (This provision applies only to the 

overpaid individual).”10

To determine if an individual was at fault with respect to the creation of an overpayment, 

OWCP examines the circumstances surrounding the overpayment. The degree of care expected 

may vary with the complexity of those circumstances and the individual’s capacity to realize that 

he or she is being overpaid.11

ANALYSIS -- ISSUE 2 

OWCP found appellant not at fault for the period June 16, 2002 to December 15, 2003, 

and at fault for the period December 16, 2003 to August 25, 2012. The Board agrees with this 

 7

 5 U.S.C. § 8116(a); see id.

8 See R.P., Docket No. 13-1415 (issued December 13, 2013). 

9

 5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994). 

10 20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430. 

11 20 C.F.R. § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006). 
5

determination as she had not been advised about her dual benefits nor offered an opportunity to 

elect. 

OWCP found appellant at fault in creating the overpayment for the period December 16, 

2003 to August 25, 2012 because she accepted payment that she knew or should have known 

was incorrect. The record indicates that she was advised on November 17, 2003 that, because 

she was receiving VA and FECA benefits for the same condition, she would have to elect 

between VA and FECA. Appellant was informed that an overpayment of compensation had 

been created and it would continue to grow until she made her election. In a December 16, 2003 

letter, she indicated that she was electing VA benefits. Thus, she knew or should have known 

after this election that she was no longer entitled to FECA benefits. As appellant continued to 

receive both VA and FECA compensation until August 25, 2012, the Board finds that she was at 

fault in the creation of the overpayment for the period December 16, 2003 to August 25, 2012 

and is not entitled to waiver for this period.12 

LEGAL PRECEDENT -- ISSUE 3 

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP 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.”13 Section 10.438 of OWCP 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 

on 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.14 

Section 10.436 of the implementing regulations provide that recovery of an overpayment 

will defeat the purpose of FECA if recovery would cause hardship to a currently or formerly 

entitled beneficiary such that: (a) the beneficiary from whom OWCP seeks recovery needs 

substantially all of his current income, including compensation benefits, to meet current ordinary 

and necessary living expenses; and (b) the beneficiary’s assets do not exceed the resource base of 

$4,800.00 for an individual plus $960.00 for each additional dependent.15 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. In other words, the amount of monthly funds available for debt repayment is the 

difference between current income and adjusted living expenses (i.e., ordinary and necessary 

living expenses plus $50.00).16 

 12 L.L., Docket No. 12-1724 (issued March 26, 2013). 

13 5 U.S.C. § 8129; see Linda E. Padilla, supra note 9. 

14 20 C.F.R. § 10.438. 

15 Id. at § 10.436; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, 

Chapter 6.200.a.1 (June 2009). 

16 Id. 
6

Recovery of an overpayment is considered to be against equity and good conscience 

when any individual, in reliance on such payments or on notice that such payments would be 

made, gives up a valuable right or changes his position for the worse.17 Conversion of the 

overpayment into a different form, such as food, consumer goods, real estate, etc., from which 

the claimant derived some benefit, is not to be considered a loss.18

Thus, a finding that appellant was without fault is not sufficient, in and of itself, for 

OWCP to waive the overpayment. OWCP must exercise it 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.19

ANALYSIS -- ISSUE 3 

As appellant was without fault for the period June 16, 2002 to December 15, 2003, 

waiver of the overpayment of compensation for that period, in the amount of $39,169.90, must 

be considered. The Board finds that appellant is not entitled to waiver of the overpayment. 

Appellant submitted an overpayment questionnaire in which she indicated that she had 

monthly income of $4,345.00 and monthly expenses of $3,895.00, yielding a difference between 

current income and household living expenses is $450.00. The Board thus finds that, as 

appellant’s monthly income exceeds her documented reasonable monthly expenses by $450.00, 

she is not entitled to waiver as she does not need substantially all of her income to meet current 

ordinary and necessary expenses.20

While appellant asserted on appeal and at oral argument that she submitted additional 

financial information to OWCP in support of a hardship claim, the record before the Board does 

not include any additional financial information submitted prior to the May 30, 2013 decision. 

The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time 

of its final decision.21 

The Board therefore finds that OWCP properly concluded that recovery of the 

overpayment would not cause financial hardship to appellant and thus defeat the purpose of 

FECA. Moreover, as appellant made no argument that she gave up a valuable right or changed 

her position for the worse in reliance on the overpaid compensation, OWCP properly determined 

that recovery would not be against equity and good conscience. OWCP properly denied waiver 

of the overpayment. 

 17 20 C.F.R. § 10.437. 

18 Federal (FECA) Procedure Manual, supra note 15 at Chapter 6.200.6.b.3 (June 2009). 

19 R.J., Docket No. 10-1756 (issued May 3, 2011). 

20 See R.M., Docket No. 07-1066 (issued February 6, 2009). 

21 J.T., 59 ECAB 293 (2008); 20 C.F.R. § 501.2(c)(1). The Board also notes that appellant submitted financial 

evidence with her appeal to the Board. As noted, the Board cannot consider this evidence as its review of the case is 

limited to the evidence that was before OWCP at the time it rendered its final decision. 
7

With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is 

limited to reviewing those cases where OWCP seeks recovery from continuing compensation 

benefits under FECA.22 As appellant is no longer receiving wage-loss compensation, the Board 

does not have jurisdiction with respect to the recovery of the overpayment under the Debt 

Collection Act.23

CONCLUSION 

The Board finds that appellant received a $276,526.36 overpayment of compensation for 

the period June 16, 2002 to August 25, 2012. The Board also finds that OWCP properly found 

her at fault for the period December 16, 2003 to August 25, 2012, with an overpayment of 

$237,356.56, and thus she was not entitled to waiver for this period. Lastly, the Board finds that 

OWCP properly denied waiver for the period June 16, 2002 to December 15, 2003, with an 

overpayment of $39,169.90, when she was found not at fault. 

ORDER 

IT IS HEREBY ORDERED THAT the May 30, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 9, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 22 Cheryl Thomas, 55 ECAB 610 (2004). 

23 Id.