United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.M., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Nashua, NH, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0612 

Issued: October 12, 2016 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 26, 2015 appellant timely appealed two September 30, 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 the claim.2

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant timely requested oral argument. The Board however exercised its discretion and denied the request 

pursuant to 20 C.F.R. § 501.5(a). See Order Denying Request for Oral Argument, Docket No. 15-0612 (issued 

August 19, 2016). The Board further notes that appellant submitted additional financial documentation that was not 

part of the record when the hearing representative issued her September 30, 2014 overpayment decision. The Board 

is precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision. 

20 C.F.R. § 501.2(c)(1). 
2

ISSUES 

The issues are: (1) whether appellant has greater than eight percent permanent 

impairment of the left lower extremity, for which he received a schedule award; (2) whether he 

received an overpayment of compensation in the amount of $145,275.33 for the period May 5, 

2009 through December 30, 2010; and (3) whether OWCP properly denied waiver of recovery of 

the overpayment. 

FACTUAL HISTORY 

This case was previously before the Board.3 On November 29, 2007 appellant, then a 56-

year-old air traffic organization specialist, injured his lower back while moving an office filing 

cabinet. OWCP assigned File No. xxxxxx650, which initially accepted the claim for lumbar 

sprain, but subsequently expanded it to include lumbar disc displacement at L4-5 and left 

ankle/foot deformity (drop foot). It also authorized a December 21, 2007 lumbar disc (L4-5) 

excision, performed by Dr. Thomas J. Kleeman, a Board-certified orthopedic surgeon. On 

January 15, 2008 appellant resumed his prior duties. On February 29, 2008 he slipped and fell in 

the employing establishment parking lot. OWCP assigned File No. xxxxxx696 and accepted 

cervical strain. Appellant returned to his regular duties on February 29, 2008. OWCP combined 

the November 29, 2007 and February 22, 2008 employment injuries and designated File No. 

xxxxxx650 as the master file. 

By decision dated June 24, 2010, OWCP granted a schedule award for 38 percent 

permanent impairment of the left lower extremity (LLE). The award covered a period of 109.44 

weeks from November 24, 2008 through December 30, 2010. OWCP based the schedule award 

on the April 15, 2010 report of its district medical adviser (DMA), Dr. David I. Krohn, a Boardcertified internist. Applying the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Krohn found 38 percent LLE 

impairment under Table 16-12, Peripheral Nerve Impairment (LEI), A.M.A., Guides 535 (6th ed., 

2nd prtg. 2009). 

The June 24, 2010 schedule award was subsequently set aside by a hearing representative 

on October 20, 2010. On remand, OWCP referred appellant for a second opinion examination 

and later declared a conflict in medical opinion between the DMA and appellant’s physician, 

Dr. Kleeman.4

Dr. Jonathan W. Sobel, a Board-certified orthopedic surgeon and impartial medical 

examiner (IME), evaluated appellant on May 18, 2011 and found five percent LLE impairment 

under Table 16-12, A.M.A., Guides 535 (6th ed., 2nd prtg. 2009). 

 3

 Docket No. 12-0837 (issued March 1, 2013). 

4

 In a report dated March 13, 2011, the DMA found five percent LLE impairment under Table 16-12, A.M.A., 

Guides 535 (6th ed., 2nd prtg. 2009). In contrast, Dr. Kleeman found 49 percent left lower extremity impairment 

under Table 16-12. 
3

OWCP forwarded Dr. Sobel’s report to a new DMA for review. In a June 14, 2011 

report, Dr. Christopher R. Brigham, the DMA, found five percent LLE impairment due to a mild 

motor deficit involving the L5 nerve root.5 Although he disagreed with the IME’s rating 

methodology, the DMA essentially found the same five percent lower extremity impairment. 

By decision dated June 21, 2011, OWCP found that appellant had five percent permanent 

impairment of the left lower extremity. It further found that the June 24, 2010 schedule award 

for 38 percent LLE impairment was issued in error. Additionally, OWCP issued a June 21, 2011 

preliminary determination finding that appellant had received an overpayment of compensation 

in the amount of $169,459.54 attributable to the erroneous June 24, 2010 schedule award. It also 

determined that appellant was not at fault in creating the overpayment. 

In a February 2, 2012 decision, the hearing representative affirmed the June 21, 2011 

schedule award for five percent LLE impairment. She also affirmed the overpayment of 

compensation in the amount of $169,459.54. Although appellant was not at fault in creating the 

overpayment, the hearing representative found that he was not entitled to a waiver of recovery. 

When the case was last on appeal, the Board set aside the hearing representative’s 

February 2, 2012 decision. The Board noted the disagreement between the IME and the DMA 

regarding the appropriate methodology for rating appellant’s left lower extremity impairment. 

Additionally, the Board explained that the IME was responsible for resolving the conflict in 

medical opinion, not the DMA. Because OWCP had not provided the IME an opportunity to 

review the DMA’s opinion regarding the proper methodology for rating appellant’s lower 

extremity impairment, the Board remanded the case for further development. With respect to the 

$169,459.54 overpayment, that issue could not be resolved without first addressing the 

underlying issue regarding appellant’s entitlement to a schedule award. The Board’s March 1, 

2013 order remanding case is incorporated herein by reference.6

On remand, OWCP referred appellant to a new IME, Dr. E. Neil Powell Jr., a Boardcertified orthopedic surgeon. Dr. Powell examined appellant on August 14, 2013 and found 

eight percent LLE impairment based on motor and sensory deficits involving the L5 nerve root.7 

Appellant’s work-related diagnoses included left foot drop, left-sided L4-5 herniated disc, 

without ongoing radiculopathy, and lumbar sprain -- resolved. Dr. Powell explained that 

appellant’s ongoing residuals primarily involved his left foot drop condition, which was 

permanent. On physical examination, he noted 4/5 weakness involving the left tibialis anterior 

and extensor hallucis longus muscles. Dr. Powell also noted a very mild L5 sensory deficit, 

which was permanent. He further noted that most of appellant’s clinical findings were consistent 

with an L5 radiculopathy. Additionally, Dr. Powell indicated that appellant’s October 28, 2008 

 5

 Dr. Brigham is Board-certified in occupational medicine. He explained that Table 16-12, A.M.A., Guides 534-

36 (6th ed., 2nd prtg. 2009), was not the appropriate method of evaluating spinal nerve impairment under FECA. 

Instead, Dr. Brigham relied on The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth 

Edition (July/August 2009). 

6 See supra note 3. 

7 See Proposed Table 2, Spinal Nerve Impairment: Lower Extremity Impairments, The Guides Newsletter

(July/August 2009). 
4

electrodiagnostic study was consistent with clinical foot drop. Lastly, he found that appellant 

had reached maximum medical improvement as of February 25, 2011. 

With respect to the L5 nerve root, Dr. Powell found a Class of Diagnosis (CDX) class 1 

mild sensory deficit (one percent) and a mild motor deficit (five percent).8

 After adjustments for 

Functional History (GMFH 1) and Clinical Studies (GMCS 2), he calculated a net adjustment of 

+1.9

 Dr. Powell then adjusted the L5 motor deficit from five percent (default grade C) to seven 

percent (grade D). Dr. Powell indicated that the net adjustment for the sensory portion was zero. 

He combined the L5 motor (seven percent) and sensory (one percent) deficits for a total eight 

percent lower extremity impairment.10

OWCP referred the case to its DMA, Dr. Guillermo M. Pujadas, who in a report dated 

September 10, 2013, concurred with the IME’s eight percent LLE spinal nerve (L5) impairment 

rating.11

By decision dated September 11, 2013, OWCP found that the current record established 

only eight percent LLE impairment under the A.M.A., Guides (6th ed., 2nd prtg. 2009). It based 

its finding on the IME’s August 14, 2013 impairment rating and the DMA’s September 10, 2013 

concurrence. 

OWCP also issued a September 11, 2013 preliminary determination of overpayment. It 

explained that appellant had previously received a schedule award for 38 percent LLE 

impairment; however, the weight of the medical evidence currently supported only 8 percent 

LLE impairment. As a result, OWCP overpaid appellant 86.4 weeks of compensation -- 

$145,275.33 for the period May 5, 2009 through December 30, 2010.12 It further indicated that 

appellant was not at fault in creating the overpayment. 

Appellant’s then-representative timely requested a hearing, which was held on 

July 29, 2014. OWCP received over 300 pages of various financial records and a July 8, 2014 

overpayment recovery questionnaire (OWCP-20). Appellant reported total monthly income of 

$6,881.43, which included his federal retirement annuity, social security age-related benefits, as 

 8 Id. 

9

 Net Adjustment (+1) ꞊ (GMFH 1 - CDX 1) + (GMCS 2 - CDX 1). See section 16.3d, A.M.A., Guides 521 (6th

ed., 2nd prtg. 2009). Dr. Powell’s net adjustment calculation did not include a grade modifier for Physical 

Examination (GMPE) because he already relied on appellant’s neurological examination findings to define the 

impairment class. 

10 See Appendix A, A.M.A., Guides 604 (6th ed., 2nd prtg. 2009). 

11 Dr. Pujadas is a Board-certified orthopedic surgeon. 

12 The actual overpayment was $150,601.60; however, OWCP credited appellant for eight payments received 

during the period September 26, 2012 through May 15, 2013, which totaled $6,027.03. Of the total amount 

remitted, OWCP applied $5,326.27 to reducing the principal and $700.76 to accrued interest. 
5

well as his spouse’s social security disability benefits.13 He also reported total monthly expenses 

of $7,329.27.14 Lastly, appellant reported liquid assets (checking/savings) totaling $1,653.26. 

On September 30, 2014 the hearing representative issued two separate decisions. One 

decision affirmed OWCP’s September 11, 2013 finding that appellant had no more than eight 

percent impairment of the left lower extremity under the A.M.A., Guides (6th ed., 2nd prtg. 2009). 

The other decision finalized OWCP’s preliminary determination that appellant received an 

overpayment of compensation in the amount of $145,275.33 for the period May 5, 2009 through 

December 30, 2010.15 Although appellant was not at fault in creating the overpayment, the 

hearing representative denied waiver of recovery. She adjusted some of appellant’s claimed 

($7,329.27) expenditures and eliminated others that had not been adequately documented. The 

hearing representative also excluded some expenditures that appeared to have been reported 

elsewhere (duplicate). After various adjustments and exclusions, she credited appellant with 

$3,988.58 in monthly ordinary and necessary living expenses. Appellant’s reported monthly 

income was $6,881.43. Because of a more than $2,500.00 monthly income surplus, the hearing 

representative found that requiring appellant to repay the overpayment would not defeat the 

purpose of FECA. Additionally, appellant did not claim, nor did the record reflect that he 

relinquished a valuable right upon notice or receipt of the overpaid benefits. Consequently, the 

hearing representative denied waiver of recovery of the overpayment. Lastly, she imposed a 

monthly repayment schedule of $700.00. 

LEGAL PRECEDENT -- ISSUES 1 & 2 

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.16 For a conflict to arise the opposing physicians’ viewpoints must be of virtually 

equal weight and rationale.17 Where OWCP has referred the case to an impartial medical 

examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well-reasoned and based upon a proper factual background, must be given special 

weight.18

 13 Appellant retired in April 2011. 

14 Appellant indicated that his monthly rent/mortgage, including property tax was $1,365.96. He also reported a 

monthly food/clothing expenditure of $2,090.06. Additionally, appellant’s monthly utilities were $571.76. His 

unspecified “Other expenses” were $1,341.46. Lastly, appellant reported monthly debt installment payments 

totaling $1,960.03. 

15 The hearing representative noted that after the September 11, 2013 preliminary determination, OWCP received 

another payment ($1,481.30), for a total of $7,508.33. See supra note 12. 

16 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on 

behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b). 

17 Darlene R. Kennedy, 57 ECAB 414, 416 (2006). 

18 Gary R. Sieber, 46 ECAB 215, 225 (1994). 
6

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.19 FECA, 

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.20 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2nd prtg. 2009).21

No schedule award is payable for a member, function or organ of the body that is not 

specified in FECA or in the implementing regulations.22 The list of scheduled members includes 

the eye, arm, hand, fingers, leg, foot, and toes.23 Additionally, FECA specifically provides for 

compensation for loss of hearing and loss of vision.24 By authority granted under FECA, the 

Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx, 

lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina, and skin.25

Neither FECA nor the regulations provide for the payment of a schedule award for the 

permanent loss of use of the back/spine or the body as a whole.26 However, a schedule award is 

permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.27 The sixth edition of the A.M.A., Guides (2nd prtg. 2009) provides a specific 

methodology for rating spinal nerve extremity impairment.28 It was designed for situations 

where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded 

ratings for the spine. FECA-approved methodology is premised on evidence of radiculopathy 

 19 5 U.S.C. § 8107(c). 

20 20 C.F.R. § 10.404. 

21 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); see also Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 

22 W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006). 

23 5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks of 

compensation. 5 U.S.C. § 8107(c)(2). 

24 Id. at § 8107(c)(13) and (14). 

25 Id. at § 8107(c)(22); 20 C.F.R. § 10.404(b). 

26 Id. at § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000). 

27 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, 

Chapter 2.808.5c(3) (February 2013). 

28 The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition (July/August 2009). Id.
7

affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve 

extremity impairment are incorporated in the procedure manual.29

If a claimant who has received a schedule award calculated under a previous edition of 

the A.M.A., Guides is entitled to additional benefits, the increased award will be calculated 

according to the sixth edition.30 Should the subsequent calculation result in a percentage of 

impairment lower than the original award, as sometimes occurs, a finding should be made that 

the claimant has no more than the percentage of impairment originally awarded, that the 

evidence does not establish an increased impairment, and that OWCP has no basis for declaring 

an overpayment.31 However, where both the prior and subsequent awards were calculated under 

the sixth edition of the A.M.A., Guides, a subsequent determination that there is a lesser degree 

of impairment than previously awarded may support a finding of overpayment.32

ANALYSIS -- ISSUES 1 & 2 

OWCP properly declared a conflict in medical opinion based on the differing opinions 

regarding the extent of appellant’s left lower extremity impairment. Whereas his treating 

physician, Dr. Kleeman, found 49 percent impairment, the then-DMA, Dr. Krohn, found only 5 

percent left lower extremity impairment. On remand, OWCP referred appellant to Dr. Powell, 

who found eight percent left lower extremity impairment due to motor and sensory deficits 

involving the L5 nerve root. The IME’s August 14, 2013 report reveals that he applied the 

FECA-approved methodology for rating spinal nerve extremity impairment. Dr. Pujadas, the 

latest DMA, concurred with the IME’s eight percent left lower extremity rating. 

When a case is referred to an IME to resolve a conflict, the resulting medical opinion, if 

sufficiently well-reasoned and based upon a proper factual background, must be given special 

weight.33 The Board finds that OWCP properly deferred to Dr. Powell’s August 14, 2013 

opinion. The IME provided a well-reasoned report based on a proper factual and medical 

history. Additionally, Dr. Powell’s report included detailed findings on physical examination 

and medical rationale supporting his opinion and provided a thorough review of the record. As 

the IME, Dr. Powell’s August 14, 2013 opinion is entitled to special weight.34 Accordingly, 

OWCP properly found that appellant currently had only an eight percent left lower extremity 

impairment under the sixth edition of the A.M.A., Guides (2nd prtg. 2009). 

Appellant previously received an award for 38 percent left lower extremity permanent 

impairment. Because the June 24, 2010 schedule award was also calculated under the sixth 

 29 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 

(January 2010). 

30 Id. at Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.9d (February 2013). 

31 Id.

32 Id. at Chapter 2.808.9e. 

33 Supra note 18. 

34 Id.
8

edition of the A.M.A., Guides (2nd prtg. 2009), the latest eight percent award resulted in an 

overpayment of compensation benefits.35 The record reveals that OWCP overpaid appellant 

$145,275.33 for the period May 5, 2009 through December 30, 2010.36 Accordingly, the Board 

affirms the hearing representative’s findings with respect to the fact and amount of the abovenoted overpayment. Moreover, the Board affirms the hearing representative’s determination that 

appellant was not at fault in creating the overpayment.37 

LEGAL PRECEDENT -- ISSUE 3 

OWCP may consider waving an overpayment only if the individual to whom it was made 

was not at fault in either accepting or creating the overpayment.38 An individual who is without 

fault in creating or accepting an overpayment is nonetheless subject to recovery of the 

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

against equity and good conscience.39 Recovery of an overpayment will defeat the purpose of 

FECA if such recovery would cause hardship to a current or former beneficiary because 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 the 

beneficiary’s assets do not exceed a specified amount as determined by OWCP.40 Additionally, 

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 in 

attempting to repay the debt or when an individual, in reliance on such payment or on notice that 

such payments would be made, relinquished a valuable right or changed his position for the 

worse.41

 35 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, 

Chapter 2.808.9e (February 2013). 

36 The above-noted figure does not reflect payment(s) received after OWCP issued its September 11, 2013 

preliminary determination. See supra notes 12 and 15. 

37 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, 

Chapter 2.808.9e(3) (February 2013) (“[w]here a schedule award decision establishes a lesser impairment after a 

greater award has been paid, the resulting overpayment will have a finding of without fault”). 

38 20 C.F.R. § 10.433(a). 

39 5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437. 

40 20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base 

increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent. 

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

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

41 20 C.F.R. § 10.437(a), (b) (June 2009). 
9

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

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

more than $50.00.42 

The individual who received the overpayment is responsible for providing information 

about income, expenses and assets as specified by OWCP.43 This information is necessary for 

determining whether a waiver of recovery of the overpayment is warranted.44 The information is 

also used to determine an appropriate repayment schedule, if necessary.45 Failure to submit the 

requested information within 30 days of the request shall result in denial of waiver.46

ANALYSIS -- ISSUE 3 

Although appellant was not at fault in creating the overpayment, this alone does not 

entitle him to waiver of recovery of the overpayment. In this instance, the hearing representative 

properly determined that recovery of the overpayment would neither defeat the purpose of FECA 

nor would it be against equity and good conscience. 

The record establishes that appellant has sufficient income to meet his current ordinary 

and necessary living expenses. On his July 8, 2014 overpayment recovery questionnaire 

(OWCP-20), appellant reported monthly income of $6,881.43. This figure included appellant’s 

federal retirement annuity ($6,083.43 -- net), his social security age-related benefits ($187.00), 

and his spouse’s social security disability benefits ($611.00). An individual is deemed to need 

substantially all of his current income to meet current ordinary and necessary living expenses if 

monthly income does not exceed monthly expenses by more than $50.00.47 According to 

appellant, his monthly expenses ($7,329.27) exceeded his monthly income by $447.84. 

However, the hearing representative did not fully credit appellant for his reported monthly 

expenses. Of the claimed $7,329.27 in monthly expenditures, the hearing representative credited 

appellant with only $3,988.58 in documented ordinary and necessary ongoing monthly living 

expenses. 

Appellant reported a monthly mortgage expenditure of $1,365.96, and monthly 

household utilities of $571.76. Both expenditures are supported by the record, and the hearing 

representative gave appellant full credit for the amounts claimed. Appellant also claimed 

monthly food/clothing expenditures totaling $2,090.06, which the hearing representative 

reduced. She also reduced appellant’s “Other expenses” that reportedly totaled $1,341.46. 

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

6.200.6a(1)(b). 

43 20 C.F.R. § 10.438(a). 

44 Id.

45 Id.

46 Id. § 10.438(b).

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

6.200.6a(1)(b) (June 2009). 
10

Additionally, the hearing representative substantially reduced appellant’s claimed $1,960.03 in 

monthly debt installment payments. 

With respect to monthly installment payments, appellant reported that he owed 

AccessOne $3,713.12. The debt was the result of calendar year 2014 unreimbursed medical 

expenditures (co-payments). On his July 8, 2014 overpayment recovery questionnaire (OWCP20), appellant reported a monthly payment obligation of $620.00 for AccessOne. However, the 

AccessOne statement for April 2014 reflects that appellant was expected to pay a monthly 

minimum of $119.30 per month. Appellant explained that he paid more than the minimum 

monthly requirement because he wanted to repay the debt in full by the end of the calendar year. 

The hearing representative only credited appellant with the minimum monthly requirement 

($119.30), which effectively reduced his claimed monthly expenditures by $500.70. 

Appellant’s July 8, 2014 OWCP-20 also noted a $7,725.78 debt to F.A.A. Credit Union 

(Visa). However, the supporting documentation reflected that he made a payment on July 7, 

2014 that reduced his outstanding balance to $6,425.78. With respect to this debt, appellant 

claimed a monthly installment obligation of $833.00. His July 9, 2014 account statement 

indicated a required minimum monthly payment of $205.53. Consequently, the hearing 

representative reduced the F.A.A. Credit Union (Visa) repayment obligation to the creditor’s 

required monthly minimum. The result was an additional reduction of $627.47 in claimed 

monthly installment payments. 

The Board finds that the hearing representative properly adjusted appellant’s reported 

monthly debt installment obligations to reflect the particular creditor’s minimum required 

payment.48

Appellant claimed an additional $507.03 in monthly installment payments for several 

other consumer credit cards (Kohl’s, Sears - 1, Sears - 2, Sam’s Club/Discover, Capital One, and 

JC Penny). The latest Sam’s Club/Discover statement showed a zero balance as of March 27, 

2014, yet appellant claimed a monthly installment obligation of $253.06 through June 2014. 

There was also a zero balance on one of the listed Sears credit cards (#7279). For that particular 

Sears card, appellant claimed a monthly installment payment of $15.04. In light of the abovenoted zero balance credit cards, appellant’s claimed monthly debt installment obligation is 

further reduced by $268.10. 

The combined reductions for AccessOne, F.A.A. Credit Union (Visa), Sam’s 

Club/Discover, and Sears total $1,396.27. Assuming arguendo that appellant’s remaining 

reported monthly expenditures are acceptable ($5,933.00), he has a monthly income surplus of 

$948.43. Because appellant’s monthly surplus exceeds $50.00, recovery of the overpayment 

would not defeat the purpose of FECA.49 For the same reason, recovery would not be against 

equity and good conscience. The record does not support that appellant would experience severe 

 48 Id. at Chapter 6.200.6a(3) (June 2009). 

49 20 C.F.R. § 10.436(a); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment 

Actions, Chapter 6.200.6a(1)(b) (June 2009). 
11

financial hardship in attempting to repay the debt.50 Accordingly, the Board finds that OWCP 

properly denied waiver of recovery of the overpayment.51

CONCLUSION 

Appellant has no more than eight percent permanent impairment of the left lower 

extremity. The Board further finds that he received an overpayment of compensation in the 

amount of $145,275.33 for the period May 5, 2009 through December 30, 2010. Although 

appellant was not at fault in creating the overpayment, he is not entitled to waiver of recovery. 

ORDER 

IT IS HEREBY ORDERED THAT the September 30, 2014 decisions of the Office of 

Workers’ Compensation Programs are affirmed. 

Issued: October 12, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 50 20 C.F.R. § 10.437(a). Moreover, there is no evidence of detrimental reliance. Id. at § 10.437(b). 

51 The hearing representative imposed a $700.00 monthly repayment schedule. Because appellant is not currently 

receiving FECA compensation benefits, the manner in which OWCP recovers the overpayment is not an issue 

currently before the Board. See Judith A. Cariddo, 55 ECAB 348, 353 (2004).