United States Department of Labor

Employees’ Compensation Appeals Board

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B.R., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

AVIATION DEPOT, Jacksonville, FL, Employer

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Docket No. 16-1780

Issued: March 7, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 1, 2016 appellant filed a timely appeal from a March 7, 2016 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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 this case.

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 

C.F.R. § 501.3(e)-(f). One hundred and eighty days from March 7, 2016, the date of OWCP’s last decision, was 

September 6, 2016. Since using September 7, 2016, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is September 1, 2016, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.
2

ISSUES

The issues are: (1) whether OWCP properly found an overpayment of compensation in 

the amount of $25,667.99 for the period September 30, 2014 through March 16, 2015; and 

(2) whether it properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On November 18, 2013 appellant, then a 60-year-old program analyst, filed an 

occupational disease claim (Form CA-2), alleging hearing loss and severe tinnitus as a result of 

noise exposure in the workplace. He indicated that he was exposed to noise from an air 

compressor, endothermic gas generators, and pneumatic tools for over 39 years. 

The record indicates that appellant previously filed a claim for hearing loss (OWCP File 

No. xx-xxxx716), and OWCP issued a schedule award dated March 18, 1994 for 12 percent 

binaural hearing loss. And, in another separate hearing loss claim (OWCP File No. xxxxxx814), OWCP issued an August 2, 1999 schedule award for 10 percent binaural hearing loss.

In February 2014, OWCP accepted the current occupational disease claim (OWCP File 

No. xx-xxxx968) for binaural hearing loss, which arose on or about August 1, 2000.

In a February 18, 2014 second opinion examination, Dr. R. Michael Loper, a Boardcertified otolaryngologist, diagnosed binaural hearing loss and indicated that it was due to noise 

exposure in federal employment. The report contained results of an audiological examination at 

500, 1,000, 2,000, and 3,000 cycles per second. For the right ear, the results were 30, 40, 50, and 

75 respectively. For the left ear, the results were 35, 35, 60, and 105. In a report dated April 10, 

2014, an OWCP medical adviser found that appellant had 38 percent binaural hearing loss based 

on the report from the second opinion physician.

By decision dated November 26, 2014, OWCP issued a schedule award for an additional 

28 percent binaural hearing loss, for a total of 38 percent binaural hearing loss. It reduced 

appellant’s current 38 percent rating to reflect his previous schedule award for 10 percent 

binaural hearing loss. The period of the award was from February 18, 2014 to March 16, 2015.

In a December 7, 2015 preliminary overpayment determination, OWCP found that 

appellant received a $25,667.99 overpayment due to schedule award payments that were in error. 

It explained that it had neglected to reduce the November 26, 2014 schedule award by 12 

percent, which appellant was previously awarded on March 18, 1994. As to the amount, OWCP 

submitted worksheets indicating that appellant had been paid $59,881.91 in compensation from 

February 18, 2014 to March 16, 2015. According to OWCP calculations, appellant should have 

been paid only $34,213.92 from February 18 to September 29, 2014 for an additional six percent 

binaural hearing loss. OWCP also found that appellant was without fault in the creation of the 

overpayment of compensation. It asked appellant to submit an attached overpayment recovery 

questionnaire, which would allow it to consider waiving the overpayment and determine, if 

necessary, a reasonable method for collection. OWCP notified appellant that failure to submit 

the requested financial information within 30 days would result in a denial of waiver.
3

On January 15, 2016 appellant submitted an overpayment recovery questionnaire (Form 

OWCP-20) indicating that he had a spouse, a monthly income of $3,747.12, and monthly 

expenses of $3,709.32 for rent or mortgage, food, clothing, utilities, and other expenses. He

further indicated that he had $763.08 in a checking account, $816.84 in savings, $14,022.96 in 

stocks and bonds, and $13,000.00 in other personal property and funds.

By decision dated March 7, 2016, OWCP finalized its overpayment determination that an 

overpayment of $25,667.99 had been created. It denied waiver of the overpayment, noting that 

appellant’s monthly expenses did not exceed his income and his assets of $763.08 in checking, 

$816.84 in savings, and $14,022.96 in stocks and bonds, totaled $15,602.88, which was above 

the guideline of $8,000.00 provided by FECA procedures when considering a waiver of 

recovery.

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.3 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 American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides) as the appropriate standard for 

evaluating schedule losses.4 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).5

Schedule awards for hearing loss are calculated as follows: Using the frequencies of 500, 

1,000, 2,000, and 3,000 hertz (Hz), the losses at each frequency are added up and averaged.6 

Then, the “fence” of 25 decibels (dB) is deducted because, as the A.M.A., Guides points out, 

losses below 25 dB result in no impairment in the ability to hear everyday speech under everyday 

conditions.7 The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of 

monaural hearing loss.8 The binaural loss is determined by calculating the loss in each ear using 

 

3 For complete loss of hearing of one ear, an employee shall receive 52 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(13). For complete loss of hearing of both ears, an employee shall receive 200 weeks’ compensation. Id.

4 20 C.F.R. § 10.404. 

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013).

6 See Section 11.2, Hearing and Tinnitus, A.M.A., Guides at 248-51 (6th ed. 2008).

7

Id. at 250.

8

Id. at 250-51.
4

the formula for monaural loss; the lesser loss is multiplied by five, and then added to the greater 

loss and the total is divided by six to arrive at the amount of the binaural hearing loss.9

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

scheduled member should be included.10 Impairment ratings for schedule awards include those 

conditions accepted by OWCP as job related, and any preexisting permanent impairment of the 

same member or function.11 If the work-related injury has affected any residual usefulness in 

whole or in part, a schedule award may be appropriate.12 There are no provisions for 

apportionment under FECA,

13 but 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.14

ANALYSIS -- ISSUE 1

OWCP found that an overpayment of compensation occurred because it neglected to 

offset appellant’s prior award for 12 percent binaural hearing loss. The current medical evidence 

of record showed that appellant had 38 percent binaural hearing loss, based on the report and 

accompanying audiogram provided by the second opinion physician, Dr. Loper. In his April 10, 

2014 report, OWCP’s medical adviser applied the above-noted formula to the February 18, 2014 

audiometric results and properly determined that appellant had 38 percent binaural hearing loss.

The record establishes that appellant previously received a March 18, 1994 schedule 

award for 12 percent binaural hearing loss, as well as an August 2, 1999 award for 10 percent 

binaural hearing loss, for a total of 22 percent binaural hearing loss. While OWCP reduced the 

latest award by the August 1999 10 percent award, it did not offset appellant’s March 1994 12 

percent award. Consequently, when OWCP issued a schedule award on November 26, 2014 for 

an additional 28 percent binaural hearing loss, an overpayment was created.

15

As to the amount of the overpayment, OWCP calculated that appellant was paid 

$59,881.91 in compensation from February 18, 2014 to March 16, 2015. Had OWCP properly 

issued a schedule award for only an additional 16 percent binaural hearing loss, appellant would 

have received just $34,213.92 for the period February 18 to September 29, 2014. Therefore, the 

difference between the two amounts, $25,667.99, represented an overpayment of compensation. 

No contrary evidence or argument was provided. The Board accordingly finds that the evidence 

 

9

Id. at 251.

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

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5d.

12 Id.

13 Id.

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

15 Id..
5

of record establishes a $25,667.99 overpayment of compensation for the period September 30, 

2014 through March 16, 2015.

LEGAL PRECEDENT -- ISSUE 2

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.16 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.17 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.18

The individual who received the overpayment is responsible for providing information 

about income, expenses, and assets as specified by OWCP.19 This information is necessary for 

determining whether waiver of recovery of the overpayment is warranted.20 The information is 

also used to determine an appropriate repayment schedule, if necessary.21 Failure to submit the 

requested information within 30 days of the request shall result in denial of waiver.22

ANALYSIS -- ISSUE 2

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

Appellant may seek waiver of recovery of the overpayment, but he must submit the relevant 

financial evidence in order for OWCP to properly make a determination on the issue. He 

submitted an overpayment recovery questionnaire (Form OWCP-20) indicating that he had a 

spouse, a monthly income of $3,747.12, and monthly expenses of $3,709.32 for rent or 

mortgage, food, clothing, utilities, and other expenses. Appellant further indicated that he had 

 

16 5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

17 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). 

18 Id. at § 10.437(a), (b).

19 Id. at § 10.438(a).

20 Id.

21 Id.

22 Id. at § 10.438(b).
6

$763.08 in a checking account, $816.84 in savings, $14,022.96 in stocks and bonds, and 

$13,000.00 in other personal property and funds.

Regarding the $25,667.99 overpayment of compensation, OWCP found that appellant 

was not with fault in the creation of the overpayment, but denied waiver of recovery because he

had not provided sufficient evidence to establish the need for waiver or a reasonable monthly 

repayment amount. Although OWCP found that appellant was without fault in the creation of 

the overpayment, repayment is still required unless adjustment or recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience.23 The record 

reflects that appellant has a monthly income of $3,747.12 and monthly expenses of $3,709.32. 

In its March 7, 2016 decision, OWCP denied waiver of the overpayment on the basis that 

appellant’s monthly expenses did not exceed his income and his total reported assets of 

$15,602.88 far exceeded the applicable $8,000.00 asset base.24 It properly concluded that 

recovery of the overpayment would not defeat the purpose of FECA, be against equity or good 

conscience, or cause hardship to appellant. Thus, the Board finds that OWCP properly denied 

waiver of recovery of the $25,667.99 overpayment.

CONCLUSION

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

of $25,667.99 for the period September 30, 2014 through March 16, 2015. The Board further 

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

 

23 See Wade Baker, 54 ECAB 198 (2002).

24 See supra note 17.
7

ORDER

IT IS HEREBY ORDERED THAT the March 7, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 7, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board