United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Dallas, TX, Employer 

__________________________________________ 

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Docket No. 14-1006 

Issued: January 26, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 27, 2014 appellant filed a timely appeal of a February 10, 2014 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. 

ISSUES 

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

amount of $7,143.37 during the period January 14, 2011 to June 1, 2013 because he received 

compensation at the augmented rate when he had no dependents; (2) whether OWCP properly 

denied waiver of recovery of the overpayment; and (3) whether it properly determined that it 

would recover the overpayment by deducting $200.00 from his continuing compensation 

payments. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 5, 2005 appellant, then a 49-year-old baggage screener, filed a traumatic injury 

claim alleging that he injured his back while lifting luggage off the belt. OWCP accepted the 

claim for lumbar muscle spasm, lumbar intervertebral disc without myelopathy, thoracic or 

thoracolumbar intervertebral disc degeneration, lumbago, and nonunion fracture. 

By letter dated June 27, 2005, OWCP placed appellant on the periodic rolls for temporary 

total disability. Appellant was paid at the three-quarters rate applicable to claimants with 

dependents. 

By letter dated January 14, 2011, appellant informed OWCP of his divorce which was 

effective that day. In EN1032 forms dated June 6, 2011 and June 5, 2013, he indicated that he 

was not married and had no dependents. 

On June 27, 2013 OWCP advised appellant of its preliminary determination that he 

received an overpayment in the amount of $7,143.37 because he received compensation at the 

augmented rate from January 14, 2011 to June 1, 2013 when he had no dependents. It calculated 

the overpayment by subtracting the compensation to which he was entitled for that period, 

$53,937.00, from the compensation that he actually received, $61,080.37, to find an 

overpayment of $7,143.37. OWCP further advised appellant of its preliminary determination 

that he was without fault in the creation of the overpayment. It requested that he complete the 

enclosed overpayment recovery questionnaire, and submit supporting financial documents. 

On July 3, 2013 appellant requested a prerecoupment hearing, received by OWCP on 

July 10, 2013. He submitted a completed overpayment recovery questionnaire with his hearing 

request, but provided no supporting financial documentation. Appellant listed monthly income 

of $1,810.80 in the overpayment questionnaire, and monthly expenses of $2,009.00. The 

monthly expenses included: $650.00 for rent or mortgage; $400.00 for food; $372.00 for 

utilities; and $437.00 for miscellaneous expenses. Under other debts appellant listed a monthly 

payment of $100.00 for Justice Finance,2

 $25.00 for Bealls,3 and $25.00 to Montgomery Ward.4 

He reported $10.00 for cash in a checking account. 

By letter dated October 22, 2013, OWCP informed appellant that a telephonic hearing 

was scheduled before an OWCP hearing representative for November 26, 2013 at 11:30 a.m. 

Appellant was provided with the toll free number and pass code to use. 

In Form CA-110 notes dated December 2, 2013, OWCP indicated that appellant called to 

advise that he had been unable to join the telephonic hearing as the hearing representative did not 

answer the telephone at the time and date the hearing was scheduled. 

 2

 Appellant noted the amount owed as $1,094.00. 

3

 Appellant noted the amount owed as $175.00. 

4

 Appellant noted the amount owed as $220.00. 
3

In a January 10, 2014 letter, the hearing representative informed appellant that the appeal 

would be based on a review of the written record as he was not present for the scheduled hearing 

on November 26, 2013. Appellant was requested to complete a new questionnaire and provide 

supporting financial documentation, such as bank statements, household bills, and recurring 

monthly bills, etc. 

In response, appellant submitted an updated overpayment questionnaire; a January 11, 

2014 water utility bill noting the amount due of $132.53 and money order receipt; a January 10, 

2014 collection receipt for Western Finance noting a balance of $882.00; a January 10, 2014 

loan payment receipt for Justice Finance Company noting a balance of $1,239.26; a January 10, 

2014 Western Union receipt for HEB Grocery noting payment of $30.00; and a January 24, 2014 

statement from Pinancle Bank. On the overpayment questionnaire, he listed monthly income of 

$1,810.80 and monthly expenses of $1,820.00. The monthly expenses included: $650.00 for 

rent or mortgage; $60.00 for food; $650.00 for utilities; and $250.00 for miscellaneous expenses. 

Under other debts, appellant listed monthly payments of $112.66 for Justice Finance,5

 $20.00 to 

Bealls,6

 $20.00 to Montgomery Ward,7 $20.00 to Texas Health,8 and $98.00 for Western 

Finance.9

 He reported $10.00 for cash in a checking account. 

By decision dated February 10, 2014, the hearing reperesentative found that appellant 

received an overpayment of compensation in the amount of $7,143.37 because it paid him 

augmented compensation from January 14, 2011 to June 1, 2013 even though he had no 

dependents. He found that appellant was without fault in creating the overpayment but denied 

waiver of recovery of the overpayment as he presented no evidence for consideration of his 

financial situation. The hearing representative determined that it would recover the overpayment 

by deducting $200.00 from appellant’s continuing compensation payments. 

On appeal, appellant contends that repaying the $200.00 from continuing compensation 

would constitute a severe hardship. He also related that he had attempted to call the number 

listed for the telephonic hearing at the scheduled time and date noted, but was unable to get 

through. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA10 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.11 When an overpayment has been made to an individual because of an 

 5

 Appellant noted the amount owed as $1,239.26. 

6

 Appellant noted the amount owed as $157.03. 

7

 Appellant noted the amount owed as $130.56. 

8

 Appellant noted the amount owed as $80.00. 

9

 Appellant noted the amount owed as $882.00. 

10 5 U.S.C. §§ 8101-8193. 

11 Id. at 8102(a). 
4

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.12 

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

employee’s monthly pay.13 Under section 8110 of FECA, an employee is entitled to 

compensation at the augmented rate of three-fourths 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.14

ANALYSIS -- ISSUE 1 

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 his divorce from his 

wife in a January 14, 2011 letter. In EN1032 forms dated June 6, 2011 and June 5, 2013, 

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

to FECA, his wife was no longer a dependent as of January 14, 2011, the date of his divorce. 

The record confirms that he continued to receive compensation at the augmented rate for 

dependents for the period January 14, 2011 through June 1, 2013. An overpayment of 

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

period, $61,080.37, less the compensation appellant should have received at the correct pay rate, 

$53,937.00, establishes an overpayment of $7,143.37. Compensation payment worksheets in the 

record confirm these figures. The Board will therefore affirm OWCP’s February 10, 2014 

decision on the issues of fact and amount of overpayment. 

LEGAL PRECEDENT -- ISSUE 2 

Under section 8129 of FECA and the implementing regulations, 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.15 Section 10.433 of the implementing regulations provide that OWCP may 

consider waiving an overpayment if the individual to whom it was made was not at fault in 

accepting or creating the overpayment.16 Section 10.434 provides that, if OWCP finds the 

recipient of an overpayment was not at fault, repayment will be required unless: 

“(a) Adjustment or recovery of the overpayment would defeat the purpose of 

FECA or 

 12 Id. at 8129(a). 

13 Id. at 8105(a); see also Ralph P. Beachum, Sr., 55 ECAB 442 (2004). 

14 Id. at 8110(a)(2). 

15 Id. at § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437. 

16 20 C.F.R. § 10.433(a). 
5

(b) Adjustment or recovery of the overpayment would be against equity and good 

conscience.”17 

These terms are further defined in sections 10.436 and 10.437. Section 10.436 provides 

that recovery would defeat the purpose of FECA if the beneficiary needs substantially all of his 

or her current income to meet current ordinary and necessary living expenses and the 

beneficiary’s assets do not exceed a specified amount as determined by OWCP from data 

provided by the Bureau of Labor Statistics.18 An individual is deemed to need substantially all 

of his or her current income to meet ordinary and necessary living expenses if monthly income 

does not exceed expenses by more than $50.00.19 An individual’s liquid assets include but are 

not limited to, the value of stocks, bonds, savings accounts, mutual funds, and certificates of 

deposits.20 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, and furnishings, and supplies.21 

Section 10.437 provides that recovery of an overpayment would be against equity and 

good conscience if: (a) the overpaid individual would experience severe financial hardship in 

attempting to repay the debt; and (b) the 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.22 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.23 

ANALYSIS -- ISSUE 2 

As appellant was found to be without fault in the creation of the overpayment in 

compensation, waiver must therefore be considered, and repayment is still required unless 

adjustment or recovery of the overpayment would defeat the purpose of FECA or be against 

equity, and good conscience. 

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

of the overpayments. 

The hearing representative denied waiver of recovery of the overpayment as appellant 

presented no evidence for consideration of his finances. A review of the record, however, 

 17 Id. at 10.434. 

18 Id. at 10.436. OWCP procedures provide that 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. 

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a). 

19 Desiderio Martinez, 55 ECAB 245 (2004); Federal (FECA) Procedure Manual, id. 

20 See supra note 18. 

21 Id. 

22 20 C.F.R. § 10.437. 

23 Id. at 10.437(b)(1). 
6

reveals that OWCP received on January 29, 2014 a completed overpayment recovery 

questionnaire. The evidence submitted included: a January 11, 2014 water utility bill noting the 

amount due of $132.53 and money order receipt; a January 10, 2014 collection receipt for 

Western Finance noting a balance of $882.00; a January 10, 2014 loan payment receipt for 

Justice Finance Company noting a balance of $1,239.26; a January 10, 2014 Western Union 

receipt for HEB Grocery noting payment of $30.00; and a January 24, 2014 statement from 

Pinancle Bank. 

Board precedent holds that OWCP must review all the evidence submitted by a claimant 

and received by OWCP prior to the issuance of a final decision.24 As the Board’s jurisdiction is 

final as to the subject matter, it is crucial that OWCP accomplish this.25 

Because the hearing representative found that appellant failed to submit a completed 

overpayment questionnaire or supporting financial documentation when a completed form does 

not appear in the record, it is clear to this Board that OWCP did not consider the factual evidence 

submitted by appellant in reaching its overpayment decision and denying waiver of the 

overpayment. Whether OWCP receives relevant evidence on the date of the decision or several 

days prior, such evidence must be considered.26 As it failed to address all the relevant evidence 

of record at the time it issued is February10, 2014 decision, the Board will set aside the 

February 10, 2014 decision on the issues of waiver and recovery and remand for consideration 

and review of all the evidence. After such development as may be necessary, OWCP shall issue 

a de novo final decision on whether appellant is entitled to waiver of recovery of the 

overpayment. 

CONCLUSION 

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

of compensation in the amount of $7,143.37 for the period January 14, 2011 to June 1, 2013. 

The Board, however, finds that the case is not in posture for a decision regarding his eligibility 

for waiver of recovery of the overpayment.27

 24 See M.B., Docket No. 09-17 (issued September 23, 2009); Yvette N. Davis, 55 ECAB 475 (2004); Linda 

Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision); William A. 

Couch, 41 ECAB 548 (1990); 20 C.F.R. § 501.6(c). 

25 See id. 

26 Willard McKennon, 51 ECAB 145 (1999). 

27 In view of the Board’s finding on waiver, it is premature to address the amount of recovery of the 

overpayments. 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 10, 2014 is affirmed with respect to fact and amount of 

overpayment and set aside and remanded for further action with respect to the denial of waiver of 

recovery of the overpayment. 

Issued: January 26, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board