United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

O.B., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

BELLEFONTE NUCLEAR PLANT, 

Hollywood, AL, Employer

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Docket No. 19-0034

Issued: April 22, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 4, 2018 appellant filed a timely appeal from a September 24, 2018 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.2

ISSUES

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

amount of $241.03 during the period May 10 to 26, 2018; (2) whether OWCP properly denied 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the September 24, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

waiver of recovery of the overpayment; and (3) whether OWCP properly required recovery of the 

overpayment by deducting $10.00 every 28 days from appellant’s continuing compensation 

payments.

FACTUAL HISTORY

On August 5, 1987 appellant, then a 56-year-old machinist, filed a traumatic injury claim 

(Form CA-1) alleging that, on June 11, 1987, he slipped and injured his neck while in the 

performance of duty. He stopped work on June 18, 1987. On September 25, 1987 OWCP 

accepted the claim for cervical strain. On May 26, 1988 it expanded acceptance of the claim to 

include cervical degenerative disc disease at C5-6, rotator cuff impingement, and right shoulder 

syndrome. OWCP paid intermittent wage-loss compensation on the periodic rolls.

By letter dated May 22, 2018, appellant informed OWCP that his wife had died on 

May 9, 2018. 

The record includes OWCP copies of an overpayment worksheet containing calculations 

showing that from May 10 to 26, 2018 appellant received $2,160.21 in compensation at the 

augmented rate of 75 percent of his monthly pay, when he was entitled to only $1,919.18 at the 

basic rate of 66 2/3 percent of his monthly pay. This yielded an overpayment of compensation in 

the amount of $241.03.

On August 20, 2018 OWCP issued a preliminary determination finding that appellant had 

received a $241.03 overpayment of compensation. It explained that the overpayment occurred 

because his spouse died on May 9, 2018 and he had no other dependents, but continued to receive 

compensation at the augmented rate through May 26, 2018. OWCP found appellant without fault 

in the creation of the overpayment. It provided an overpayment action request form and an 

overpayment recovery questionnaire (Form OWCP-20) for his completion and advised that, in 

order for it to consider the question of waiver or to determine a reasonable method for collection, 

he must provide a completed Form OWCP-20 and attach supporting financial documentation. 

OWCP notified appellant that failure to submit the requested information within 30 days would 

result in the denial of waiver of recovery of the overpayment.

No information was received from appellant in response to the preliminary determination.

By decision dated September 24, 2018, OWCP finalized the preliminary determination, 

finding that an overpayment in the amount of $241.03 had occurred because appellant continued 

to receive compensation at the augmented rate following the death of his spouse, his only 

dependent. It found that he was without fault in the creation of the overpayment, but denied waiver 

of recovery of the overpayment, noting that he had not responded to the August 20, 2018 

preliminary determination. OWCP required recovery by deducting $10.00 every 28 days from 

appellant’s continuing FECA compensation.

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 
3

duty.3 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.4 A disabled employee is 

entitled to an augmented compensation rate of 75 percent if he or she has one or more dependents.5 

A dependent includes a husband or wife if: (a) he or she is a member of the same household 

as the employee; (b) the spouse is receiving regular contributions from the employee for his 

support; or (c) the employee has been ordered by a court to contribute spousal support.6

If a claimant received compensation at the augmented rate during a period when he or she 

did not have an eligible dependent, the difference between the compensation that was disbursed at 

the 75 percent augmented rate and the compensation that should have been disbursed at the 66 2/3 

percent basic rate constitutes an overpayment of compensation.7

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation in the amount of 

$241.03 for the period May 10 to 26, 2018.

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

he was married and lived in the same household as his wife. His wife died on May 9, 2018. 

Appellant, however, continued to receive compensation at the augmented rate after her death when 

he had no eligible dependents.

The record supports that OWCP erroneously paid appellant compensation based on the 

augmented rate of 75 percent for the period May 10 to 26, 2018. Appellant was paid $2,160.21 in 

FECA compensation for that period at the augmented rate of 75 percent, but was entitled to only 

$1,919.18 at the 66 2/3 basic rate. OWCP properly determined that the difference yielded an 

overpayment of compensation in the amount of $241.03. The Board thus finds that OWCP

properly determined the fact and amount of the overpayment in this case.8

LEGAL PRECEDENT -- ISSUE 2

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 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8105(a).

5

Id. at § 8110(b).

6

Id. at 8110(a)(2); see also K.S., Docket No. 15-0940 (issued September 9, 2015).

7 B.W., Docket No. 18-1412 (issued February 8, 2019); see Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004).

8 W.A., Docket No. 18-0070 (issued May 14, 2018); see D.S., Docket No. 17-1224 (issued August 28, 2017).
4

when adjustment or recovery would defeat the purpose of FECA or would be against equity and 

good conscience.”

9

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 on 

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 and no further request for waiver shall be considered until the requested information is 

furnished.10

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the overpayment.

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 conscious.11 Appellant, however, 

had the responsibility to timely provide financial information to OWCP, but did not do so.12

In its preliminary determination dated August 20, 2018, OWCP requested that appellant 

provide a completed overpayment recovery questionnaire and supporting financial information. It 

advised appellant that waiver would be denied if he failed to furnish the requested financial 

information within 30 days. Appellant did not respond to the preliminary determination before 

OWCP issued its final overpayment determination on September 24, 2018. As a result, OWCP 

did not have the necessary financial information to determine whether recovery of the overpayment

would defeat the purpose of FECA or if recovery would be against equity and good conscience. 

Because appellant failed to submit the requested information within 30 days, OWCP had no 

discretion in the matter. The law therefore required a denial of waiver.13

Consequently, as appellant did not submit the financial information required under section 

10.438 of OWCP’s regulations, which was necessary to determine his eligibility for waiver, the 

Board finds that OWCP properly denied waiver of recovery of the overpayment of compensation 

in the amount of $241.03.14

 

9 5 U.S.C. § 8129.

10 20 C.F.R. § 10.438.

11 Id.; see also R.H., Docket No. 15-0392 (issued February 3, 2016).

12 Supra note 10.

13 Supra note 11.

14 Id.; see S.A., Docket No. 15-0592 (issued April 9, 2015).
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LEGAL PRECEDENT -- ISSUE 3

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.15

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly required recovery of the overpayment by deducting 

$10.00 every 28 days from appellant’s continuing compensation.

Although OWCP provided appellant an overpayment recovery questionnaire with the 

August 20, 2018 preliminary determination, as noted, he did not submit a completed questionnaire 

or other financial information prior to the September 24, 2018 final overpayment decision. The 

overpaid individual is responsible for providing information about income, expenses, and assets 

as specified by OWCP.16 When an individual failed to provide requested financial information, 

OWCP should follow minimum collection guidelines designed to collect the debt promptly and in 

full.17 As appellant did not submit any financial information to OWCP as requested, the Board 

finds that OWCP properly directed recovery of the $241.03 every 28 days from his continuing 

compensation payments.

On appeal appellant alleges that the overpayment was paid in full prior to the 

September 24, 2018 decision. This evidence was not of record at the time of the September 24, 

2018 decision.18

CONCLUSION

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

of compensation in the amount of $241.03 for the period May 10 to 26, 2018. The Board further 

finds that OWCP properly denied waiver of recovery of the overpayment, and required recovery 

by deducting $10.00 every 28 days from his continuing compensation payments.

 

15 20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

16 Id. at § 10.438.

17 W.A., supra note 8; see Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Chapter 

6.200.4(c)(2) (May 2004).

18 See supra note 2.
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ORDER

IT IS HEREBY ORDERED THAT the September 24, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 22, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board