United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, ROBINS 

AIR FORCE BASE, GA, Employer 

__________________________________________ 

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Docket No. 17-1224 

Issued: August 28, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 15, 2017 appellant filed a timely appeal from a May 3, 2017 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $2,577.64 for the period April 8, 2016 to 

March 4, 2017; (2) whether OWCP properly found appellant at fault in creating the 

overpayment; and (3) whether OWCP properly determined that it would recover the 

overpayment by deducting $25.00 every 28 days from appellant’s continuing compensation 

payments. 

 1

 5 U.S.C. § 8101 et seq. 
2

On appeal, appellant contends that a questionnaire did not ask her if she had additional 

expenses. She asserts that she has medical and travel expenses associated with her stage 4 

nonHodgkins lymphoma and invasive breast cancer. 

FACTUAL HISTORY 

On January 14, 1976 appellant then a 31-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on January 13, 1976 she sustained a back contusion and strained 

lumbar muscles when she slipped on water on the floor in a restroom at work. She stopped work 

on January 15, 1976 and returned on January 20, 1976. Appellant stopped work again on 

January 27, 1976 and has not returned to work. 

OWCP accepted the claim for low back strain and permanent aggravation of a pars 

interarticularis defect. The record indicates that appellant received compensation at the 75 

percent augmented rate effective September 16, 1976 and continuing. 

As a requirement of receiving compensation on the periodic rolls, OWCP regularly sent 

appellant EN1032 forms requesting information with respect to employment, volunteer activity, 

dependents, and receipt of other federal benefits. Appellant continually claimed her spouse as a 

dependent. Each of the completed EN1032 forms explained that a claimant with no dependents 

is paid compensation at 66 2/3 percent of the applicable pay rate, while a claimant with at least 

one dependent is paid at 75 percent of the applicable pay rate. 

In the Form EN1032 signed on February 7, 2017, appellant answered “no” to questions 

asking if she was married and if her spouse lived with her. On March 16, 2017 OWCP received 

an obituary from McCullough Funeral Home, which indicated that her husband had died on 

April 7, 2016. 

In a March 28, 2017 notice, OWCP advised appellant of its preliminary determination 

that she received a $2,577.64 overpayment of compensation for the period April 8, 2016 

to March 4, 2017 because she was erroneously receiving compensation at the augmented 75 

percent rate instead of the proper basic 66 2/3 percent rate. It also made a preliminary finding 

that she was at fault in creating the overpayment because she was aware or should have 

reasonably been aware that she was not entitled to the augmented rate when she had no eligible 

dependents after April 7, 2016. OWCP advised appellant that she could submit evidence 

challenging the fact, amount, or finding of fault and request waiver of recovery of the 

overpayment. Additionally, it informed her that, within 30 days, she could request a telephone 

conference, a final decision based on the written evidence, or a prerecoupment hearing. OWCP 

requested that appellant complete the enclosed overpayment recovery questionnaire (Form 

OWCP-20) and submit supporting financial documents. 

The record includes an OWCP worksheet containing calculations showing that, from 

April 8, 2016 to March 4, 2017, appellant received $23,033.71 in compensation at the 

augmented, 75 percent rate, but was entitled to only $20,456.07 in compensation at the basic 

66 2/3 percent rate, a difference of $2,577.64. It noted that the $2,577.64 amount constituted an 

overpayment of compensation. 
3

On March 31, 2017 appellant requested that OWCP make a decision based on the written 

record and submitted a completed overpayment questionnaire. She contended that the 

overpayment occurred through no fault of her own and requested waiver of recovery of the 

overpayment. Appellant asserted that she had always answered requests honestly and would not 

do otherwise. She reported monthly income of $5,341.12, which included $1,669.00 in Social 

Security Administration benefits, $1,907.12 in other Federal Government benefits, and $1,765.00 

in other income “DFEC” benefits. Appellant also reported monthly expenses of $3,550.00,2

which included $1,800.00 for mortgage or rent, $600.00 for food, $200.00 for clothing, $500.00 

for utilities, $250.00 for other expenses, and $200.00 for a Visa credit card. She had $50.00 cash 

on hand and $43.00 in a savings account for a total of $93.00 in assets. 

In a May 3, 2017 decision, OWCP finalized the finding that appellant received an 

overpayment of compensation in the amount of $2,577.64. It found that she was at fault in the 

creation of the overpayment, thereby precluding waiver of recovery of the overpayment. OWCP 

directed repayment of the overpayment by deducting $25.00 every 28 days from appellant’s 

continuing compensation.3

LEGAL PRECEDENT -- ISSUE 1 

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.4 If the disability is total, the United States shall pay the employee during the period of total 

disability the basic compensation rate of 66 2/3 of his monthly pay. A disabled employee is 

entitled to an augmented compensation rate of 75 percent if he or she has one or more 

dependents.5

 

Under section 8110 of FECA, an employee is entitled to compensation at the augmented 

rate of 3/4 of his or her weekly pay if he or she has one or more dependents.6

 A dependent 

includes a husband if: (a) he is a member of the same household as the employee; (b) he is 

receiving regular contributions from the employee for his support; or (c) the employee has been 

ordered by a court to contribute to his support.7 

ANALYSIS -- ISSUE 1 

Appellant initially received compensation payments at the augmented rate of 75 percent 

as she was married and lived in the same household with her husband. Her husband died on 

 2

 The Board notes that appellant incorrectly calculated a total of $3,100.00 in monthly expenses. 

3

 The Board notes that the cover letter accompanying the May 3, 2017 decision fails to accurately convey the 

finding of fault within the decision. 

4

 5 U.S.C. § 8102(a). 

5 Id. at § 8105(a). 

6 Id. at § 8110(b). 

7 Id. at § 8110(a)(2). 
4

April 7, 2016. However, appellant continued to receive compensation at the augmented rate 

after his death, when she had no eligible dependents. 

The record indicates that appellant was erroneously paid compensation based on the 

augmented rate of 75 percent for a person with a dependent for the period April 8, 2016 through 

March 4, 2017. Appellant was paid $23,033.71 in compensation at the augmented rate of 75 

percent, but should have received only $20,456.07 at the basic 66 2/3 percent rate. OWCP 

properly determined that the difference of $2,577.64 is the amount of the overpayment. The 

Board finds that OWCP properly determined the fact and amount of the overpayment in this 

case. 

LEGAL PRECEDENT -- ISSUE 2 

Under OWCP regulations, waiver of the recovery of an overpayment may be considered 

only if the individual to whom it was made was not at fault in accepting or creating the 

overpayment.8

 The fact that the overpayment was the result of error by OWCP or another 

government employing establishment does not by itself relieve the individual who received the 

overpayment of liability for repayment if the individual also was at fault for receiving the 

overpayment.9 

Each recipient of compensation benefits is responsible for taking all reasonable measures 

to ensure that payments he or she received from OWCP are proper. The recipient must show 

good faith and exercise a high degree of care in reporting events that 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 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; (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

With respect to whether an individual is without fault, section 10.433(b) of OWCP 

regulations provides that 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.11

ANALYSIS -- ISSUE 2 

As the factual history indicates, appellant signed several EN1032 forms which provided 

her with the definition of a dependent and explained that she was not entitled to receive 

 8

 20 C.F.R. § 10.433(a). 

9 Id. at § 10.435(a). 

10 Id. at § 10.433(a); see Kenneth E. Rush, 51 ECAB 116 (1999). 

11 Id. at § 10.433(b). 
5

compensation at the augmented rate if she did not have dependents. By signing the EN1032 

forms, she had notice that she was not entitled to compensation at the augmented rate if she did 

not have a dependent. Appellant did not claim dependents on the February 7, 2017 Form 

EN1032 and noted that she was no longer entitled to compensation for a spouse. Thus, she knew 

or reasonably should have known that the compensation she received at the augmented rate after 

April 7, 2016, the day her husband died, was incorrect. Even if an overpayment resulted from 

negligence by OWCP, this does not excuse a claimant from accepting payments that the claimant 

knew or should have been expected to know was incorrect.12 The Board therefore finds that 

appellant was at fault in creating the $2,577.64 overpayment of compensation. As appellant is 

not without fault in the creation of the overpayment, she is not eligible for waiver of recovery of 

the overpayment. OWCP is required by law to recover the overpayment.13

LEGAL PRECEDENT -- ISSUE 3 

When an overpayment has been made to an individual who is entitled to further 

payments, OWCP shall decrease later payments of compensation, taking into account the 

probable extent of future payments, the rate of compensation, the financial circumstances of the 

individual, and any other relevant factors, so as to minimize any hardship.14

ANALYSIS -- ISSUE 3 

The Board finds that OWCP gave due regard to the financial information appellant 

submitted as well as the factors set forth in section 10.441. As appellant’s monthly income was 

$5,341.12 and her monthly expenses were $3,550.00, OWCP did not abuse its discretion in 

setting the rate of recovery as $25.00 from each of her continuing compensation payments. The 

Board finds that OWCP properly determined the recovery of the overpayment in this case. 

On appeal, appellant contends that a questionnaire did not ask her if she had additional 

expenses. She asserts that she has medical and travel expenses associated with her stage 4 

nonHodgkins lymphoma and invasive breast cancer. However, the record does not contain any 

financial documents supporting such expenses and such expenses were not noted under section 5 

of OWCP-20 form which specifically requests itemization of other expenses, including medical 

care and other transportation costs. As found above, OWCP took into consideration the financial 

information submitted by appellant, as well as the factors set forth in section 10.441(a) of its 

regulations in determining that the $25.00 deduction from her 28-day compensation payments 

would minimize any hardship. 

 12 Supra note 9; Danny E. Haley, 56 ECAB 393 (2005). 

13 L.J., 59 ECAB 264 (2007) (no waiver of an overpayment is possible if the claimant is at fault in creating the 

overpayment). 

14 20 C.F.R. § 10.441(a). 
6

CONCLUSION 

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

of compensation in the amount of $2,577.64 for the period April 8, 2016 to March 4, 2017. The 

Board further finds that OWCP properly found her at fault in creating the overpayment, and 

properly determined that it would recover the overpayment by deducting $25.00 from continuing 

compensation payments. 

ORDER 

IT IS HEREBY ORDERED THAT the March 31, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 28, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board