United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.G., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

PARADISE FOSSIL PLANT, Drakesboro, KY, 

Employer

__________________________________________

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Docket No. 16-1533

Issued: March 15, 2018

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 H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 26, 2016 appellant filed a timely appeal from a July 1, 2016 merit decision of the 

Office of Workers’ Compensation Programs (OWCP). The Board also has jurisdiction over a 

February 26, 2016 merit decision and a March 22, 2016 nonmerit decision. 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.2

ISSUES

The issues are: (1) whether appellant has greater than 26 percent permanent impairment 

of the lungs, for which he previously received a schedule award; (2) whether OWCP properly 

denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. 

 

1 5 U.S.C. § 8101 et seq.

2 The record on appeal includes evidence received after OWCP issued its July 1, 2016 decision. The Board’s 

jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board is 

precluded from reviewing this new evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). 
2

§ 8128(a); (3) whether appellant received an overpayment of compensation in the amount of 

$33,929.78 for the period April 22, 2010 through September 28, 2011; and (4) whether OWCP 

properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances outlined in 

the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows. 

On June 21, 2002 appellant, then a 55-year-old machinist, filed an occupational disease 

claim (Form CA-2) alleging injury due to factors of his federal employment. OWCP accepted

the claim for coal workers’ pneumoconiosis.

4

 In April 2003, it granted appellant a schedule 

award for 26 percent permanent impairment of both lungs. The award covered an 81.12-week 

period from March 4, 2003 through September 21, 2004.5In May 2010, OWCP granted 

appellant a schedule award for 24 percent whole person impairment due to his accepted lung 

condition. This award was calculated under the sixth edition of the A.M.A., Guides.

6

 It covered

a 74.88-week period from April 22, 2010 through September 28, 2011. In a November 28, 2012 

decision, OWCP denied appellant an additional schedule award, noting that the medical evidence

of record demonstrated that he had only 23 percent permanent impairment of both lungs under 

the sixth edition of the A.M.A. Guides. It also noted that the May 28, 2010 schedule award for 

24 percent whole person impairment appeared to have been issued in error. 

OWCP subsequently denied reconsideration of the merits of the claim. Appellant 

appealed to the Board and, by decision dated July 22, 2013, the Board affirmed OWCP’s 

November 28, 2012 merit decision and its January 11, 2013 nonmerit decision.7

In January 2014, appellant filed a claim for wage-loss compensation (Form CA-7) for the 

period April 11, 2011 through December 31, 2013, which OWCP denied by decision dated 

March 11, 2014. He requested reconsideration on October 21, 2014, and OWCP denied his 

request by an October 28, 2014 nonmerit decision. Appellant again appealed to the Board. By 

decision dated June 4, 2015, the Board affirmed OWCP’s October 28, 2014 nonmerit decision.8

 

3 Docket No. 15-0641 (issued June 4, 2015); Docket No. 13-0657 (issued July 22, 2013).

4 Appellant retired effective October 2, 1989. He first learned of his lung disease and its relationship to factors of 

his federal employment on April 26, 2002. 

5 The April 18, 2003 schedule award was based on the then-applicable fifth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).

6 A.M.A., Guides (6th ed. 2009).

7 Docket No. 13-0657 (issued July 22, 2013).

8 The appeal was filed on January 29, 2015, therefore, the Board no longer had jurisdiction over OWCP’s 

March 11, 2014 merit decision regarding entitlement to wage-loss compensation. Docket No. 15-0641 (issued 

June 4, 2015). 
3

In September 2014, appellant filed a claim for an increased schedule award (Form CA-7). 

He did not submit any additional medical evidence to support increased impairment. On 

October 15, 2014 OWCP advised appellant of the need for additional medical evidence regarding 

permanent impairment under the sixth edition of the A.M.A., Guides. Based on the 

recommendation of its district medical adviser, it subsequently referred him for a second opinion 

evaluation. 

In a March 16, 2015 report, Dr. Sanjay Chavda, a Board-certified pulmonary disease 

specialist and OWCP referral physician, reviewed a statement of accepted facts (SOAF) and the 

medical record, and provided examination findings. He ordered diagnostic tests, which were 

performed on May 19, 2015. Citing Table 5-4 on page 88 of the A.M.A., Guides, Dr. Chavda 

assigned a class 2 impairment, which represented between 11 to 23 percent whole person 

impairment. He further noted that appellant’s impairment was due to reduced FEV1 at 62 

percent of predicted. 

On October 5, 2015 an OWCP medical adviser reviewed Dr. Chavda’s reports and 

diagnostic testing and opined that appellant had reached maximum medical improvement on 

March 16, 2015 and that he had 10 percent whole person permanent impairment. The diagnostic 

testing revealed that appellant had FVC 98 percent; FEV1 70 percent; FEV1/FVC 49 percent; and 

DLCO 114 percent. Under Table 5-4, page 88 of the sixth edition of the A.M.A., Guides,

the medical adviser opined that appellant had class 1 pulmonary dysfunction with default value 6 

percent. He found that the nonkey factor of functional history was class 2 or +1 and nonkey 

factor of physical examination was class 2 or +1. Applying the modifications for functional 

history and physical examination, the medical adviser opined that appellant had class 1 E or 10 

percent permanent impairment of the whole person. In an October 9, 2015 supplemental report, 

he indicated that the study was significantly improved from the testing used in earlier awards. 

The medical adviser also indicated that the 10 percent permanent impairment was not in addition 

to the previous schedule awards. 

By decision dated October 13, 2015, OWCP denied appellant’s claim for an additional 

schedule award as the evidence of record was insufficient to establish greater permanent 

impairment than that which was previously awarded. 

On October 19, 2015 appellant requested a review of the written record before a 

representative of OWCP’s Branch of Hearings and Review. In an October 18, 2015 statement, 

he noted that he was on oxygen therapy. Appellant alleged that Dr. Chavda was not very nice 

and stated that he suffered a panic attack and had to leave. He also alleged that Dr. Chavda 

insulted him in front of his wife. Appellant felt that he was more impaired than what Dr. Chavda 

reported and asked that the file be reviewed. A September 2, 2015 oximetry test was submitted,

as well as equipment requests.

By decision dated February 26, 2016, an OWCP hearing representative affirmed 

OWCP’s October 13, 2015 decision as the medical evidence of record did not support that 

appellant was entitled to an additional schedule award. He noted that the weight of the medical 

opinion evidence rested with OWCP’s medical adviser and appellant’s current impairment under 

the sixth edition of the A.M.A., Guides equaled 10 percent permanent impairment of the whole 

person. The hearing representative also noted that several examiners, as well as the Board, have 
4

identified an incorrect payment of the second schedule award of 24 percent impairment and no 

action had been taken to declare that compensation as overpaid. 

On March 10, 2016 appellant requested reconsideration. In a March 8, 2016 statement, 

he indicated that he disagreed with OWCP’s decision. Appellant indicated that Black Lung does 

not resolve and he was now on oxygen and new inhalers. A February 18, 2016 After Visit 

Summary from One Health Pulmonology provided a general summary of his office visit. 

By decision dated March 22, 2016, OWCP denied appellant’s request for reconsideration 

of the merits of his claim. 

In a manual adjustment form 1 and fiscal worksheet, OWCP noted each schedule award 

check appellant received for the period April 22, 2010 through September 28, 2011 and listed the 

amount received. It calculated that he received a total amount of $33,929.78 for the applicable 

period. 

On March 30, 2016 OWCP informed appellant of its preliminary determination that he 

had received an overpayment of compensation in the amount of $33,929.78 for the period 

April 22, 2010 through September 28, 2011 as he was incorrectly paid schedule award benefits

to which he was not entitled. It noted that it had erroneously issued the second schedule award 

covering the period April 22, 2010 to September 28, 2011, as a finding should have been made 

that he had no more than the percentage of impairment initially awarded. OWCP listed each 

check date and the amount that appellant received for the period April 22, 2010 through 

September 28, 2011 and noted the sum of the schedule award payments was $33,929.78. It

found that he was without fault in the creation of the overpayment. OWCP requested that 

appellant complete an overpayment recovery questionnaire and submit supporting financial 

documentation to assist OWCP in its evaluation of his eligibility for waiver of recovery of the 

overpayment. Additionally, it notified him that, within 30 days of the date of the letter, he could 

request a telephone conference, a final decision based on the written evidence, or a 

prerecoupment hearing. 

On April 11, 2016 appellant requested waiver of recovery. He indicated that his lungs 

were bad and had worsened. Appellant also stated that he did not believe that he owed any

money and that he could not afford to pay money back to OWCP. He partially completed the

overpayment recovery questionnaire, noting that his total monthly income was comprised of 

$1,243.00 from social security benefits. Appellant indicated that he supported his wife and listed 

monthly household expenses as $200.00 rent, $500.00 food, $300.00 utilities, and $133.00 

miscellaneous expenses, for total expenses of $1,133.00. No supporting financial documentation 

was submitted.

By decision dated July 1, 2016, OWCP finalized its preliminary determination that 

appellant had received an overpayment of compensation in the amount of $33,929.78 for the 

period April 22, 2010 through September 28, 2011 as he was incorrectly paid schedule award 

compensation benefits. It found that he was not at fault in the creation of the overpayment, but 

denied waiver of recovery of the overpayment. 
5

LEGAL PRECEDENT -- ISSUE 1

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.9 It, 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.10 Effective May 1, 2009, schedule awards are determined in accordance with the sixth 

edition of the A.M.A., Guides (2009).11

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.12 The list of schedule members includes 

the eye, arm, hand, fingers, leg, foot, and toes.13 Additionally, FECA specifically provides for 

compensation for loss of hearing and loss of vision.14 By authority granted under FECA, the 

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

lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina, and skin.15 Neither FECA 

nor the regulations provide for the payment of a schedule award for the permanent loss of use of 

the back or the body as a whole.16 Compensation for total loss of use of a single lung is 156 

weeks.17

Although FECA does not specifically provide for compensation for whole person 

impairment, the measurement of lung function warrants special consideration. Table 5-4, 

Pulmonary Dysfunction, A.M.A., Guides 88, provides whole person impairment ratings based on 

a designated class (0-4) of impairment. Depending on the assigned class, the range of whole 

person impairment due to pulmonary dysfunction is 0 to 65 percent. The procedure manual 

provides that lung impairment should be evaluated in accordance with the A.M.A., Guides

insofar as possible. It further provides that schedule awards are based on the loss of use of both 

lungs, and the percentage for the particular class of whole person respiratory impairment will be 

 

9 5 U.S.C. § 8107(c).

10 20 C.F.R. § 10.404. 

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

(January 2010); it. Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 

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

13 5 U.S.C. § 8107(c). 

14 Id. at § 8107(c)(13) and (14).

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

16 Id. at § 8107(c); Id. at § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

17 Id. at § 10.404(b).
6

multiplied by 312 weeks (twice the award for loss of function of one lung) to obtain the number 

of weeks payable.18

ANALYSIS -- ISSUE 1

OWCP accepted appellant’s occupational disease claim for the condition of coal workers’

pneumoconiosis. On April 18, 2003 appellant received a schedule award for 26 percent 

impairment of each lung (81.12 weeks). On May 2, 2010 OWCP awarded him 24 percent whole 

person impairment (74.88 weeks). By decision dated July 22, 2013, the Board found that 

appellant had not established that he had more than 26 percent permanent impairment of his 

lungs. Appellant filed a claim for an increased schedule award, which OWCP denied on 

October 13, 2015. An OWCP hearing representative affirmed the denial of appellant’s increased 

schedule award claim on February 26, 2016. The Board finds that the medical evidence of 

record does not support permanent impairment greater than 26 percent bilateral lung impairment.

OWCP referred appellant to Dr. Chavda for a second opinion examination. In a 

March 16, 2015 report, Dr. Chavda reviewed a SOAF and the medical record, and provided 

examination findings. Diagnostic testing was conducted on May 19, 2015. Dr. Chavda cited to 

Table 5-4 on page 88 of the A.M.A., Guides and opined that appellant had class 2 impairment,

which ranged from 11 to 23 percent whole person impairment secondary to reduced lung 

function. However, his report is of diminished probative value as he did not provide a detailed 

description of the impairment or describe the basis for an impairment rating under the A.M.A., 

Guides.19

When an examining physician does not apply the A.M.A., Guides to determine an 

impairment rating, OWCP may rely on the opinion of its medical adviser to apply the A.M.A., 

Guides to the physical findings reported by the attending physician.20 In October 6 and 9, 2015 

reports, an OWCP medical adviser applied the A.M.A., Guides to the diagnostic testing

Dr. Chavda provided. He referenced Table 5-4 of the A.M.A., Guides and found that appellant 

had 10 percent permanent impairment for both lungs, which was significantly improved from the 

testing used in the earlier awards. The medical adviser found that the results of the pulmonary 

function tests placed appellant in class 1 impairment with a ratable impairment from 2 to 10 

percent and a default value of 6 percent. He also noted that appellant’s functional history placed 

him in class 2 and his physical examination findings placed him in class 2. Table 5-4 of A.M.A., 

Guides indicates that, in finding class 1 impairment, the FVC value should be between 70

percent and 79 percent of the predicted value or the FEV1 between 65 percent and 79 percent of 

the predicted value. Appellant’s values for these tests as recorded by Dr. Chavda were 98 

percent and 70 percent of the predicted value respectively. The Board finds that OWCP’s 

medical adviser properly applied the A.M.A., Guides in calculating 10 percent permanent 

 

18 Supra note 11 at Chapter 2.808.5(c)(1); supra note 11 at Chapter 3.700.4d(1)(c).

19 Id.

20 See J.G., Docket No. 09-1714 (issued April 7, 2010).
7

bilateral lung impairment.21 No other relevant evidence supporting greater impairment than that 

previously awarded was submitted. 

Thus, OWCP’s medical adviser’s finding of 10 percent permanent impairment of both 

lungs constitutes the weight of the medical evidence.22 Appellant has not met his burden of 

proof to establish greater permanent impairment than the 26 percent previously awarded.

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.23 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.24 One such limitation is that the request for 

reconsideration must be received by OWCP within one year of the date of the decision for which 

review is sought.25 A timely application for reconsideration, including all supporting documents, 

must set forth arguments and contain evidence that either: (1) shows that OWCP erroneously 

applied or interpreted a specific point of law; (2) advances a relevant legal argument not 

previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not 

previously considered by OWCP.26 When a timely application for reconsideration does not meet 

at least one of the above-noted requirements, OWCP will deny the request for reconsideration 

without reopening the case for a review on the merits.27

ANALYSIS -- ISSUE 2

Appellant disagreed with the denial of his claim for an increased schedule award and 

requested reconsideration on March 8, 2016, which OWCP received on March 10, 2016. 

 

21 See A.M.A., Guides 87.

22 See also H.B., Docket No. 09-2240 (issued June 18, 2010); E.V., Docket No. 06-1989 (issued May 21, 2007); 

Bobby L. Jackson, 40 ECAB 593, 601 (1989).

23 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

24 20 C.F.R. § 10.607.

25 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

26 Id. at § 10.606(b)(3).

27 Id. at § 10.608(a), (b).
8

Appellant did not argue that OWCP erroneously applied or interpreted a specific point of 

law, nor did he advance a relevant legal argument not previously considered by OWCP. Rather, 

he argued that his accepted condition had worsened and that he was now on oxygen and new 

inhalers. Appellant’s statement, however, does not provide any new medical evidence to support 

increased impairment28 and it is immaterial to the issue of whether he sustained permanent

impairment greater than that previously awarded.

29

 He also did not submit any new medical 

evidence to support that he sustained permanent impairment greater than that previously 

awarded. While appellant submitted a February 18, 2016 After Visit Summary from One Health 

Pulmonology, this evidence failed to provide any specific details in support of an increase in 

impairment previously awarded. 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent new evidence not previously considered by OWCP. OWCP, 

therefore, properly denied his request for reconsideration.

LEGAL PRECEDENT -- ISSUE 3

When determining entitlement to a schedule award, preexisting impairment to the 

schedule member should be included.30 Impairment ratings for schedule awards include those 

conditions accepted by OWCP as employment related, and any preexisting permanent 

impairment of the same member or function.31 If the work-related injury has affected any 

residual usefulness in whole or in part, a schedule award may be appropriate.32 There are no 

provisions for apportionment under FECA.33 When the prior impairment is due to a previous 

work-related injury and a schedule award has been granted for such prior impairment, the 

percentage already paid is subtracted from the total percentage of impairment.34

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.35 Should the subsequent calculation result in a percentage of 

 

28 Appellant’s own factual interpretation of the medical evidence does not constitute relevant medical evidence, as 

lay persons are not competent to render medical opinion. See B.R., Docket No. 17-1661 (issued January 4, 2018); 

James A. Long, 40 ECAB 538 (1989).

29 The submission of evidence or argument which does not address the particular issue involved does not 

constitute a basis for reopening a case. See G.W., Docket No. 16-0517 (issued April 27, 2016); Edward Matthew 

Diekemper, 31 ECAB 224-25 (1979).

30 Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

31 Supra note 11 at Chapter 2.808.5d.

32 Id.

33 Id.

34 Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c).

35 Supra note 11 at Chapter 2.808.9d.
9

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.36 However, where both the prior and subsequent awards were calculated under 

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.37

ANALYSIS -- ISSUE 3

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

overpayment of compensation in the amount of $33,929.78, which represented the schedule 

award paid for the period April 22, 2010 to September 28, 2011, for which he was not entitled. 

The record supports that on May 28, 2010, he received a schedule award of 24 percent for both 

lungs in the amount $33,929.78 for the period April 22, 2010 to September 28, 2011. In 

analyzing appellant’s claims for increased schedule awards, OWCP found that he had no more 

than the 26 percent previously awarded. The record also supports that the Board, in its July 22, 

2013 decision and in the current decision, found that the medical evidence of record did not 

support that appellant was entitled to a schedule award greater than the 26 percent of both lungs 

previously awarded. As appellant’s requests for an increased schedule award did not result in an 

impairment greater than the 26 percent of both lungs previously awarded, he was not entitled to 

the second schedule award of 24 percent for both lungs, issued on May 28, 2010, for the period 

from April 22, 2010 through September 28, 2011. 

OWCP properly found the fact and amount of overpayment as the overpayment was the 

entire amount of schedule award that appellant received but was not entitled to. Appellant has 

not challenged the amount and period of the overpayment. OWCP thus properly found that an 

overpayment of compensation in the amount of $33,929.78 had been created.38

LEGAL PRECEDENT -- ISSUE 4

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.39 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.40 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 

 

36 Id.

37 Id. at Chapter 2.808.9e.

38 See A.W., Docket No. 15-0190 (issued August 10, 2016).

39 20 C.F.R. § 10.433(a).

40 5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.
10

beneficiary’s assets do not exceed a specified amount as determined by OWCP.41 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.42

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.

43

 

The individual who received the overpayment is responsible for providing information 

about income, expenses, and assets as specified by OWCP.44 This information is necessary for 

determining whether waiver of recovery of the overpayment is warranted.45 The information is 

also used to determine an appropriate repayment schedule, if necessary.46 Failure to submit the 

requested information within 30 days of the request shall result in denial of waiver.47

ANALYSIS -- ISSUE 4

OWCP determined that appellant was without fault in the creation of the overpayment of 

$33,929.78 for the period of April 22, 2010 through September 28, 2011 as he did not know, nor 

should he have known, that he was not entitled to the payments received. As it found him

without fault in the creation of the overpayment of compensation, 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.48

OWCP requested in its preliminary determination of overpayment dated March 30, 2016 

that appellant provide a completed overpayment recovery questionnaire and supporting financial 

documentation. Appellant partially completed the overpayment recovery questionnaire, but 

failed to provide any financial documentation or financial information on his spouse for OWCP 

to determine whether waiver was appropriate. 

 

41 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). 

42 Id. at § 10.437(a), (b).

43 Supra note 41 at Chapter 6.200.6a (1)(b).

44 20 C.F.R. § 10.438(a).

45 Id.

46 Id.

47 Id. § 10.438(b).

48 20 C.F.R. §§ 10.436, 10.437.
11

The Board finds that OWCP properly exercised its discretion in finding that recovery of 

the overpayment would not be against equity and good conscience. OWCP reviewed the 

claimed income, expenses, and assets listed on his April 11, 2016 Form OWCP-20 and found 

that appellant met the first prong of the two-prong test of whether recovery of the overpayment 

would defeat the purpose of FECA, i.e., whether his monthly income exceeded his monthly 

ordinary and necessary living expenses by more than $50.00. While appellant acknowledged 

that he was married, he claimed $1,243.00 in total monthly income and $1,133.00 in total 

monthly expenses. This amounts to $110.00 of income over his monthly ordinary and necessary 

living expenses, which is more than the $50.00 statutory amount.49 Thus, it was unnecessary for 

OWCP to consider the second prong of the test, i.e., whether appellant’s assets exceed the 

statutory resource base.50

The Board has held that OWCP must rely on a claimant’s current financial situation at 

the time of the waiver determination.51 Past circumstances or assumed future conditions are not 

a proper basis on which to decide a claimant’s eligibility for waiver.52 Further, there is no 

evidence of record in this case, nor did appellant allege, that he relinquished a valuable right or 

changed his position for the worse in reliance on the excess compensation he received for the 

period April 22, 2010 to September 28, 2011. Therefore, OWCP acted properly in denying

appellant’s request for waiver, as he did not meet the qualifications for waiver of the recovery of 

the overpayment.53 Pursuant to its regulations, it did not abuse its discretion in issuing its July 1, 

2016 final decision denying waiver of recovery of the overpayment of compensation in the 

amount of $33,929.78.

CONCLUSION

The Board finds that appellant has not established greater than the 26 percent impairment 

of the lungs previously awarded. The Board further finds that OWCP properly denied his

request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a); that he 

received an overpayment of compensation in the amount of $33,929.78 for the period April 22, 

2010 through September 28, 2011; and that OWCP properly denied waiver of recovery of the 

overpayment. 

 

49 See C.H., Docket No. 15-0799 (issued June 19, 2015).

50 See A.W., Docket No. 15-0190 (issued August 10, 2016).

51 L.S., 59 ECAB 350 (2008).

52 20 C.F.R. § 10.433.

53 See E.M., Docket No. 07-0785 (issued August 17, 2007); Id. at § 10.436.
12

ORDER

IT IS HEREBY ORDERED THAT the July 1, March 22, and February 26, 2016 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: March 15, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board