United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Gaithersburg, MD, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-2054 

Issued: March 9, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 29, 2014 appellant filed a timely appeal from an August 29, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal 

Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

ISSUES 

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

$11,437.62 overpayment of compensation; and (2) whether it properly determined that he was at 

fault in creating the overpayment of compensation, thereby precluding waiver of recovery of the 

overpayment. 

 1

 The record also contains a June 16, 2014 decision of OWCP concerning a $109.09 overpayment, but appellant 

has not appealed this decision to the Board. 

2

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On November 22, 1999 appellant, then a 33-year-old machine operator, filed a timely 

notice of injury for a back injury. His claim was accepted for displacement of cervical 

intervertebral disc without myelopathy. Appellant filed a claim on July 7, 2001 alleging that on 

May 29, 2001 he sustained injury to his right shoulder. This claim was accepted for adhesive 

capsulitis of the right shoulder. Appellant received compensation on the daily and periodic rolls. 

In EN-1032 forms completed on December 26, 2007, May 10, 2009, April 23, 2010, 

April 28, 2011, March 15, 2012, and January 31, 2013, appellant indicated that he was no longer 

married but he continued to claim his daughter and/or his son as a dependent.3

 Each form 

advised him regarding the circumstances when he would be entitled to receive compensation at 

an augmented pay rate: 

“A claimant who has no eligible dependents is paid compensation at 66 2/3 

percent of the applicable pay rate. A claimant who has one or more eligible 

dependents is paid compensation at 75 percent of the applicable pay rate. You 

must answer the questions below to ensure your compensation is paid at the 

correct rate. 

“You may claim compensation for a dependent if you have one or more of the 

following: (a) a husband or wife who lives with you; (b) an unmarried child, 

including an adopted child or stepchild, who lives with you and is under 18 years 

of age; (c) an unmarried child who is 18 or over, but who cannot support himself 

or herself because of mental or physical disability; (d) an unmarried child under 

23 years of age who is a full-time student and has not completed four years of 

school beyond the high school level; and (e) a parent who totally depends upon 

you for support.” 

In a November 19, 2013 letter, OWCP advised appellant that a preliminary determination 

had been made that he received an overpayment of compensation in the amount of $11,437.62 

for the period November 14, 2007 to February 9, 2013 for the reason that he received 

compensation benefits at the 75 percent augmented rate when he no longer had an eligible 

dependent. It also made a preliminary determination that he was at fault in the creation of the 

overpayment because he accepted a payment he knew or should have known to be incorrect. 

OWCP indicated that the record revealed that appellant’s youngest child, his son, turned 18 on 

November 14, 2007 and therefore he was not entitled to compensation at the dependent rate of 

75 percent for the period November 14, 2007 to February 9, 2013, when his compensation was 

reduced to the 66 2/3 percent rate. This resulted in an overpayment in the amount of $11,437.62 

for the period November 14, 2007 to February 9, 2013.4

 OWCP provided appellant 30 days to 

 3

 Each EN-1032 form covered the 15-month period prior to being completed. The record contains a February 8, 

2013 document associated with the EN-1032 form appellant completed on January 31, 2013 in which an official 

from Prince George’s Community College indicated that appellant’s daughter was not enrolled for the Spring 

Semester (January 22 to May 13, 2013). 

4

 The record contains worksheets reflecting that, from November 14, 2007 to February 9, 2013, appellant was 

paid $121,157.01 at the augmented rate but should have been paid $109,719.39. The difference between these two 

figures is $11,437.62. The record contains evidence that appellant’s son was born on November 14, 1989 and that 

his daughter was born on September 19, 1988. 
3

challenge the proposed overpayment, request a prerecoupment hearing, and to submit financial 

information. 

On November 5, 2013 OWCP received an overpayment recovery questionnaire form 

completed by appellant, which detailed his monthly income, monthly expenses, and assets.5

 

Appellant indicated that he disagreed with the overpayment noting that his daughter was a fulltime student at the Dudley School of Cosmetology in 2007 and 2008.6

Appellant requested a prerecoupment hearing with an OWCP hearing representative. 

During the June 12, 2014 hearing, he indicated that his daughter was a full-time student at the 

Dudley School of Cosmetology in Washington, DC, between “August 2006 and 2008” but that 

when he tried to contact the institution it was no longer in business for him to get any records. 

Appellant advised that his daughter also attended Prince George’s Community College, but 

stated that he had not been able to get any affirmative records of her full-time attendance from 

that institution. He testified that his son did not continue his education. Appellant stated that he 

understood how the overpayment occurred, but indicated that he did not have the means to repay 

the debt. 

In an August 29, 2014 decision, an OWCP hearing representative finalized the 

preliminary determination and found that appellant received an $11,437.62 overpayment. She 

also found that he was at fault in the creation of the $11,437.62 overpayment, thereby precluding 

waiver of recovery of the overpayment. The hearing representative discussed the financial 

information submitted by appellant and found that the overpayment should be repaid through 

monthly payments of $200.00.7

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 his duty.8

 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.9

 

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

employee’s monthly pay. Section 8110 of FECA provides that a claimant is entitled to 

 5

 Appellant listed his income as coming from the Office of Personnel Management. 

6

 Appellant indicated that he called OWCP in 2008 after his daughter stopped being a full-time student, but the 

record does not appear to contain any documentation of such a telephone call. 

7

 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. 

8

 5 U.S.C. § 8102(a). 

9 Id. at § 8129(a). 
4

augmented compensation to three fourths of the employee’s rate of monthly pay if he or she has 

a dependent.10 Section 8110(a)(3) of FECA provides that a child is considered a dependent if he 

or she is under 18 years of age, is over 18 but is unmarried and incapable of self-support because 

of a physical or mental disability or is an unmarried student, as defined under section 8101(17).11 

FECA provides that compensation will continue at the augmented rate if the child has reached 18 

years of age and is a student. Section 8101(17) of FECA defines a student as an individual under 

23 years of age who has not completed four years of education beyond the high school level and 

who is regularly pursuing a full-time course of study or training at a school, college or university 

or other educational or training institute, or an additional type of educational or training institute 

as defined by the Secretary. The federal regulations provide that an additional type of 

educational or training institute means a technical, trade, vocational, business, or professional 

school accredited or licensed by the federal or a state government, that provides courses of not 

less than three months duration and prepares the individual for a livelihood in a trade, industry, 

vocation, or profession.12 If a claimant receives augmented compensation during a period where 

he or she has no eligible dependents, the difference between the compensation to which he or she 

was entitled at the two-thirds compensation rate and the augmented compensation received at the 

three-fourths rate constitutes an overpayment of compensation.13

ANALYSIS -- ISSUE 1 

The Board finds that appellant received an $11,437.62 overpayment of compensation 

from November 14, 2007 to February 9, 2013. Appellant’s son, born November 14, 1989, turned 

18 on November 14, 2007. His daughter, born September 19, 1988, turned 18 on 

September 19, 2006. OWCP continued to issue appellant’s compensation at the augmented rate 

(75 percent) through February 9, 2013. It later found that his son and daughter had turned 18 and 

there was no evidence that either the son or daughter was either incapable of self-support or a 

full-time student. 

There is no evidence contained in the record to support that appellant’s son or daughter 

was enrolled full time as a student. As neither appellant’s son nor his daughter meets the 

requirements of an eligible dependent under FECA, an overpayment of compensation was 

created commencing November 14, 2007. 

OWCP provided a detailed accounting of the amount of compensation appellant should 

have received at the statutory 66 2/3 percent rate since there were no qualified dependents. The 

worksheets reflect that, from November 14, 2007 to February 9, 2013, appellant was paid 

$121,157.01 at the augmented rate but should have been paid $109,719.39. This amounts to an 

overpayment amount of $11,437.62. Thus, the Board finds that OWCP’s calculation of an 

$11,437.62 overpayment was correct and that OWCP, therefore, properly determined the fact 

and amount of the overpayment. 

 10 Id. at § 8110. 

11 Id. at § 8110(a)(3). 

12 20 C.F.R. § 10.5(aa)(1). 

13 5 U.S.C. § 8110(a)(3); see Ralph P. Beachum, Sr., 55 ECAB 442 (2004). 
5

LEGAL PRECEDENT -- ISSUE 2 

 Section 8129(a) of FECA provides that where an overpayment of compensation has been 

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

payments to which an individual is entitled.14 The only exception to this requirement is a 

situation which meets the tests set forth as follows 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 this 

subchapter or would be against equity and good conscience.”15 No waiver of payment is 

possible if the claimant is not “without fault” in helping to create the overpayment.16

 In determining whether an individual is not “without fault” or alternatively “at fault” in 

the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations 

provide in relevant part: 

“A recipient who has done any of the following will be found to be at fault with 

respect to 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....”17

 Section 10.433(b) of OWCP’s regulations provide: 

“Whether or not OWCP determines that an individual was at fault with respect to 

the creation of an overpayment depends on 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.”18

ANALYSIS -- ISSUE 2 

OWCP found that appellant was at fault in the creation of the $11,437.62 overpayment 

based on the third criterion, that he accepted payments which he knew or should have known to 

be incorrect. 

 14 Id. at § 8129(a). 

15 Id. at § 8129(b). 

16 L.J., 59 ECAB 264 (2007). 

17 20 C.F.R. § 10.433(a). 

18 Id. at § 10.433(b). 
6

The Board finds that appellant was at fault in creating the $11,437.62 overpayment. The 

EN-1032 forms provided information notifying him as to the status of dependents for augmented 

compensation. Appellant was advised as to the requirements for claiming a child as a dependent 

and informed that a claimant with no dependents was paid at the 66 2/3 percent basic rate, not 

the 75 percent augmented rate. While he testified that he did not intend to mislead OWCP about 

the status of his son and daughter, he knew or reasonably should have known that he was not 

entitled to augmented compensation when his son and daughter turned 18 years of age. As noted 

above, appellant’s son and daughter did not qualify as full-time students. Additionally, there is 

no evidence to support that his son or daughter had a mental or physical disability which created 

an inability to provide self-support. Appellant knew or should have known that the payments 

made at the augmented rates were incorrect in view of the cautionary language in the EN-1032 

forms that he signed.19 For these reasons, he is at fault in creating the $11,437.62 overpayment 

and is not eligible for waiver of recovery. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant received an $11,437.62 

overpayment of compensation. The Board further finds that whether OWCP properly 

determined that he was at fault in creating the overpayment of compensation and that, therefore, 

the overpayment was not subject to waiver. 

ORDER 

IT IS HEREBY ORDERED THAT the August 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 9, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 19 Although appellant asserted that he thought his daughter was a full-time student, he acknowledged that he was 

unable to obtain any evidence of such full-time student status.