United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Coppell, TX, Employer

__________________________________________

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Docket No. 17-0810

Issued: October 2, 2017

Appearances: Case Submitted on the Record

Fernando Dominguez, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 1, 2017 appellant, through her representative, filed a timely appeal from a 

January 27, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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 the case.

ISSUES

The issues are: (1) whether OWCP properly denied waiver of an overpayment of 

compensation in the amount of $61,900.00; and (2) whether OWCP properly required repayment 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq. 
2

of the overpayment by deducting $600.00 every 28 days from appellant’s continuing 

compensation.

On appeal appellant’s representative asserts that her position would change for the worse 

and create a hardship for her if she were required to repay the overpayment. 

FACTUAL HISTORY

On November 11, 2002 appellant, then a 65-year-old mail handler, filed a traumatic 

injury claim (Form CA-1) alleging that she injured her back on that date when she was hit by a 

mail container. She stopped work that day and did not return. 

OWCP initially accepted the claim for the condition of lumbar contusion, and later 

expanded the claim to include lumbosacral sprain, thoracic and lumbar spondylosis with 

myelopathy, degeneration of thoracic or thoracolumbar intervertebral disc, and major depression, 

single episode, unspecified. Appellant received continuation of pay from November 12 to 

December 26, 2002 and began receiving FECA compensation on December 27, 2002. She was 

placed on the periodic compensation rolls in April 2003. On November 5, 2003 appellant

underwent a lumbar decompression and spinal fusion. In July 2006, she came under the care of

Dr. Les Benson, a family physician. 

Annual EN1032 forms signed by appellant between July 20, 2003 and July 18, 2011 and 

July 18, 2013 and September 9, 2016 indicated that she was receiving Social Security 

Administration (SSA) benefits. On the EN1032 form she signed on August 3, 2012, she 

indicated that she was receiving no additional benefits. 

OWCP forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits 

calculation form to the SSA on August 11, 2014. SSA returned the form on September 24, 2014, 

noting that appellant had been receiving SSA retirement benefits since August 2002. It indicated 

that, beginning in August 2002, appellant’s SSA rate with FERS was $1,162.90 and without 

FERS it would have been $517.50. Each year the rates increased through December 2013. 

In reports dated July 10, 2014 and July 31, 2015, Dr. Benson diagnosed contusion of 

back, sprain of lumbosacral joint, chronic pain syndrome, degeneration of thoracic or 

thoracolumbar intervertebral disc, major depression, single episode, unspecified, and thoracic or 

lumbar spondylosis with myelopathy. He described appellant’s medical management and 

advised that she was medically disabled from her previous employment. 

At OWCP’s request, in October 2015, SSA furnished new rates for the period 

August 2002 through December 2014. 

By letter dated November 10, 2015, OWCP notified appellant that, based on information 

provided by SSA regarding what amount of her SSA benefit was attributable to federal service, 

her FECA benefits had been adjusted effective October 18, 2015. 

On January 4, 2016 OWCP issued a preliminary finding of an overpayment of 

compensation in the amount of $133,270.45. It explained that the overpayment occurred because 

a portion of appellant’s SSA benefits, that she received from December 27, 2002 to October 17, 
3

2015, was based on credits earned while working in the Federal Government and that this portion 

of her SSA benefit was a prohibited dual benefit. OWCP found that she was not at fault and 

provided an overpayment action request and an overpayment recovery questionnaire (OWCP-20 

form). Appellant was informed of the actions she could take and was allotted 30 days to 

respond. 

Appellant timely requested a prerecoupment hearing with OWCP’s Branch of Hearings 

and Review. She submitted an overpayment questionnaire which listed monthly income of 

$3,433.92 and monthly expenses of $3,795.66, with assets totaling $29,477.60. Appellant 

attached addenda noting additional income and expenses, and noted additional real estate 

holdings of a second house and a mobile home. She maintained that she was entitled to both 

SSA and FECA benefits, and submitted additional documentation including income tax returns, 

bank statements, cancelled checks, and copies of invoices. 

In a September 9, 2016 report, Dr. Benson reiterated his findings and conclusions. 

Appellant, who was present, did not testify at the hearing, held on October 19, 2016. Her 

representative, a union representative, indicated that there was no disagreement regarding the 

period or amount of the overpayment and that the only issue at hand was waiver. He maintained 

that appellant suffered from codependency and had made bad choices regarding her children and 

grandchildren, noting that she had given them homes and real estate yet kept the property deeds 

in her name, and that because her FECA compensation was reduced in November 2015, she 

needed all her income to get by. 

In correspondence submitted following the hearing, appellant’s representative asserted 

that appellant was codependent with her children and grandchildren and, based on her financial 

situation, denial of waiver would be against equity and good conscience. He also submitted an 

additional overpayment questionnaire. This indicated that she had monthly income of $1,567.00 

from SSA, $1,857.71 from FECA, and $982.36 from the sale of her home, for a total of 

$4,407.06. Monthly, expenses totaled $4,168.63 and assets totaled $91,975.22. 

By decision dated January 27, 2017, an OWCP hearing representative noted that there 

was no dispute as to the occurrence of the overpayment or the calculated amount. He noted that 

appellant presented no evidence or argument against the calculation of the overpayment and 

found that she was without fault. The hearing representative further found that she was not 

entitled to waiver, noting that the evidence did not support that recovery would be against good 

conscience or defeat the purpose of FECA. He calculated appellant’s FECA income in a 

monthly rather than a 28-day periodic basis, finding FECA income of $2,009.54 per month. The 

hearing representative noted that her monthly income also included investment disbursements of 

$366.77, reported on the first overpayment questionnaire. He added the $2,009.54, $366.77, and 

$1,567.00 of monthly SSA benefits, and $982.35 from the sale of appellant’s home, for a total 

monthly income of $4,925.66, which exceeded her claimed monthly expenses of $4,168.63 by 

more than the allowable resource base of $50.00. The hearing representative further noted that 

her assets of $91,975.22 exceeded the allowed individual resource base of $8,000.00. He 

concluded that appellant was not entitled to waiver and, based on this evidence, set repayment at 

$600.00 per 28-day period. The hearing representative, however, lowered her overpayment of 

$133.270.45 to $61,900.00, based on her life expectancy. 
4

LEGAL PRECEDENT -- ISSUE 1

Section 8129 of FECA provides that an overpayment of 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.”

3

 Section 10.438 of OWCP regulations provides 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 

of 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.4

The guidelines for determining whether recovery of an overpayment would defeat the 

purpose of FECA or would be against equity and good conscience are set forth in sections 

10.434 to 10.437 of OWCP regulations.5

Section 10.436 provides that recovery of an overpayment would defeat the purpose of 

FECA if recovery would cause hardship because the beneficiary needs substantially all of his or 

her current income (including compensation benefits) to meet current ordinary and necessary 

living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as 

determined by OWCP from data provided by the Bureau of Labor Statistics.6 An individual is 

deemed to need substantially all or his or her current income to meet current ordinary and 

necessary living expenses if monthly income does not exceed monthly expenses by more than 

$50.00.7

OWCP procedures provide that the 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.8 An individual’s liquid assets include, but are not limited to cash, the 

value of stocks, bonds, saving accounts, mutual funds, and certificate of deposits. 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/supplies.9

 

3

5 U.S.C. § 8129.

4

20 C.F.R. § 10.438.

5

Id. at §§ 10.434-10.437.

6

Id. at § 10.436.

7

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

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

8

Id.

9

Id. 
5

ANALYSIS -- ISSUE 1

At the October 19, 2016 hearing, appellant’s representative indicated that there was no 

disagreement regarding the period or amount of the overpayment of compensation, and that the 

only issue for determination was waiver. As the period and amount of overpayment as found by 

OWCP is not contested on this appeal, the Board affirms the overpayment of $61,900.00. On 

appeal he asserts that appellant’s position would change for the worse and create a hardship if 

she were required to repay the overpayment. The Board will therefore address only the issues of 

waiver and repayment.

As OWCP found appellant without fault in the creation of the overpayment, waiver must 

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.10 The Board finds 

that OWCP did not abuse its discretion by refusing to waive recovery of the overpayment of 

compensation.

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because she has not shown both that she needs substantially all of her current income to 

meet ordinary and necessary living expenses. OWCP procedures provide that 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, i.e., the amount of monthly funds available for debt repayment is the difference between 

current income and adjusted living expenses plus $50.00.11 Appellant submitted two 

overpayment questionnaires, one on February 3, 2016 and one on November 22, 2016. 

Appellant did not testify at the October 19, 2016 hearing. Her representative maintained 

that she suffered from codependency, causing her to make bad choices regarding her children 

and grandchildren, noting that she had given them homes and real estate yet kept the deeds of the 

property in her name. There is, however, no medical evidence of record to show that appellant 

was codependent or was in any way incompetent such that she could not manage her affairs.12 

Appellant’s representative also asserted that, because her FECA compensation was 

reduced in November 2015, appellant needed all her income to get by. In the November 2016 

overpayment questionnaire, appellant reported monthly income of $4,407.06 and monthly 

expenses of $4,168.63, with assets totaling $91,975.22. 

In his January 27, 2016 decision, OWCP’s hearing representative recalculated appellant’s 

FECA 28-day income to reflect a monthly payment of $2,009.54. He further noted that her 

monthly income also included investment disbursements of $366.77, reported on the first 

overpayment questionnaire. The hearing representative added the $2,009.54 in FECA 

compensation, $1,567.00 of monthly SSA benefits, $982.35 in income reported from the sale of 

 

10 Supra note 5.

11 Supra note 9.

12 See generally S.S., Docket No. 08-0977 (issued June 23, 2010).
6

appellant’s home, with the $366.77 in investment income, for a total monthly income of 

$4,925.66, which exceeded her claimed monthly expenses of $4,168.63 by $757.03, which is 

more than the $50.00 allowance, as explained on OWCP procedures.13 

As appellant’s reported income exceeded her reported ordinary expenses by more than 

$50.00, she has not shown that she needs substantially all of her current income to meet her 

current ordinary and necessary living expenses. Thus, appellant has not met the first prong of the 

two-prong test of whether recovery of the overpayment would defeat the purpose of FECA.14 It 

was therefore unnecessary for OWCP to consider the second prong of the test, i.e., whether her

assets exceeded the allowable resource base.15

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

when any individual who received an overpayment would experience severe financial hardship 

in attempting to repay the debt or 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 or her position for 

the worse.16 Appellant generally contends on appeal that recovery of the overpayment would 

create a financial hardship and thus be against equity and good conscience.17 Her monthly 

income exceeds her monthly expenses. Moreover, appellant did not show that she made a 

decision she otherwise would not have made in reliance on the overpaid amount and that this 

decision resulted in a loss.18 She submitted no evidence to show that she gave up a valuable 

right or changed her position for the worse in reliance on anticipated compensation payments. 

Thus, appellant has not shown that if required to repay the overpayment, she would be in a worse 

position after repayment than if she had never received the overpayment at all. OWCP properly 

found that she was not entitled to waiver on the grounds that recovery would be against equity 

and good conscience.19

As appellant failed to establish that recovery of the overpayment in compensation would 

defeat the purpose of FECA or be against equity and good conscience, the Board finds that 

OWCP did not abuse its discretion in denying waiver of recovery.

 

13 Supra note 7. 

14 Supra note 6.

15 The Board, however, notes that appellant’s reported assets of $91,972.22 also exceeded the allowed individual 

resource base of $8,000.00. Supra note 7.

16 20 C.F.R. § 10.437.

17 OWCP procedures provide that ordinary and necessary living expenses include fixed expenses such as food, 

clothing, furniture, household and personal hygiene supplies, rent, mortgage payments, utilities, maintenance, burial 

plot or prepaid burial contract; accident, health, life and vehicle insurance; taxes; vehicle expenses and commuting 

expenses not included under vehicle expenses; medical expenses, church and charitable contributions made on a 

regular basis; and miscellaneous expenses not to exceed $50.00 per month. The procedures add that consumer debt 

should not be calculated if the expenses are included in the fixed expenses. Supra note 7 at Chapter 6.200.6.a(3) 

(June 2009).

18 20 C.F.R. § 10.437(b)(2) (2011); see Wayne G. Rogers, 54 ECAB 482 (2003).

19 Supra note 7.
7

LEGAL PRECEDENT -- ISSUE 2

Section 10.441 of OWCP’s regulations provides that when an overpayment has been 

made to an individual who is entitled to further payments, the individual shall refund to OWCP 

the amount of the overpayment as soon as the error is discovered or his or her attention is called 

to the same. If no refund is made, 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 hardship.20

ANALYSIS -- ISSUE 2

The Board finds that OWCP gave due regard to the relevant factors noted above in 

setting a rate of recovery of $600.00 per compensation period. The record indicates that 

appellant’s monthly income exceeds her reported monthly expenses by $757.03 per month. 

OWCP therefore did not abuse its discretion in finding that she should repay the overpayment at 

the rate of $600.00 per compensation period.21

CONCLUSION

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

of compensation in the amount of $61,900.00, and that OWCP properly denied waiver and 

required recovery of the overpayment by deducting $600.00 every 28 days from her continuing 

compensation payments. 

 

20 20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

21 N.S., Docket No. 14-2081 (issued February 12, 2015).
8

ORDER

IT IS HEREBY ORDERED THAT the January 27, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 2, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board