United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.D., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

ROBINS AIR FORCE BASE, 

Warner Robins, GA, Employer

__________________________________________

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Docket No. 19-0618

Issued: October 29, 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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 22, 2019 appellant filed a timely appeal from a December 12, 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 received an overpayment of compensation in the 

amount of $20,379.34 for the period April 5 through October 3, 2016 due to receipt of duplicative 

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the December 12, 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

schedule award compensation, for which appellant was without fault; and (2) whether OWCP 

properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On November 21, 2013 appellant, then a 49-year-old sheet metal mechanic (aircraft), filed 

a traumatic injury claim (Form CA-1) alleging that on November 16, 2013 when a temporary 

floorboard she stepped on gave way and she fell while in the performance of duty when. She

stopped work on November 19, 2013, returned to full-time modified duty with restrictions on 

November 20, 2013, and full-time regular duty on December 5, 2013. OWCP initially accepted 

the claim for bilateral knee contusions, left knee sprain, contusion and sprain of the low back. It

subsequently expanded acceptance of the claim to include bilateral knee chondromalacia patellae. 

On May 11, 2015 appellant underwent an OWCP authorized left knee arthroscopy with 

patella debridement and lateral release. 

On April 26, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated May 17, 2016, OWCP granted appellant a schedule award for seven

percent permanent impairment of the left lower extremity and two percent permanent impairment 

of the right lower extremity. The schedule award was based upon bilateral knee permanent 

impairments. The period of the award ran for 25.92 weeks from April 5 to October 3, 2016. 

Appellant received $20,379.34 in schedule award compensation. 

On May 11, 2017 appellant underwent an OWCP-approved left knee arthroscopic patella 

synovectomy and debridement. 

On December 4, 2017 appellant filed a claim for an increased schedule award (Form 

CA-7).

By decision dated December 19, 2017, OWCP granted appellant a schedule award for eight

percent permanent impairment of the left lower extremity and two percent permanent impairment 

of the right lower extremity. This schedule award was also paid for bilateral permanent impairment 

of the knees. The period of the award ran for 28.8 weeks from November 15, 2017 through 

June 4, 2018. Appellant received $22,916.08 in total schedule award compensation.

On October 4, 2018 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $20,379.34 had occurred because appellant had received two 

schedule awards, but was only entitled to one. It determined that she should have received the 

schedule award for eight percent permanent impairment of the left lower extremity and two percent 

permanent impairment of the right lower extremity, the greater of the two schedule awards, and 

that the schedule award for seven percent permanent impairment of the left lower extremity and 

two percent permanent impairment of the right lower extremity represented an overpayment. 

OWCP further advised appellant of its preliminary determination that she was without fault in the 

creation of the overpayment. It requested that she complete the enclosed overpayment recovery 

questionnaire (Form OWCP-20) and submit 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. Additionally, it notified her that, within 30 days of the 
3

date of the letter, she could request a telephone conference, a final decision based on the written 

evidence, or a prerecoupment hearing.

On October 23, 2018 OWCP received an overpayment action request form, dated 

October 17, 2018, on which appellant checked a box requesting that OWCP make a decision based 

on the written evidence regarding possible waiver of the overpayment. In an October 17, 2018 

letter, appellant indicated that she did not know that the schedule award was erroneously issued 

and that the overpayment was not her fault. She indicated that she did not save any of the schedule 

award and that it was used to pay vehicle maintenance, medical expenses, and dental work. 

Appellant also noted that her attempt to start a cleaning business was unsuccessful. She indicated 

that she was seeking waiver based on financial hardship as paying any amount back would cause 

great hardship for her family. Appellant noted that she was the sole provider for her household as 

her spouse was retired and only received social security benefits. She did not contest the fact or 

the amount of the overpayment.

OWCP also received appellant’s completed overpayment recovery questionnaire and 

financial evidence. Appellant reported total monthly income of $3,289.10 for her household, 

which included her spouse’s monthly social security benefits of $984.00. In response to the 

question regarding her usual monthly household expenses, appellant reported total monthly 

expenses of $2,948.113; monthly installments of credit card debt of $50.00; and total assets of 

$5,576.49. Appellant submitted financial documentation supporting her claimed income and

expenses. 

By decision dated December 12, 2018, OWCP finalized the preliminary determination that 

appellant received an overpayment of compensation, for which she was without fault, in the 

amount of $20,379.34 for the period April 5 through October 3, 2016. A detailed calculation of 

the $20,379.344 overpayment, which noted each amount appellant received for the 25.92 week 

period April 5 to October 3, 2016, was provided. It found that appellant had a total monthly 

income of $2,571.50,

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total monthly expenses of $1,656.32 ($1,606.326 of household expenses and 

$50.00 of debt) and total assets of $5,577.09. OWCP denied waiver of recovery of the 

overpayment as appellant’s income exceeded the expenses by $915.28 and she retained significant 

financial assets. Recovery of the overpayment was directed by monthly installment payments of 

$300.00 each month until the overpayment was absorbed. 

 

3 This included $1,265.80 for her mortgage; $211.11 for cable; $140.10 for her mobile phone; $67.51 for automobile 

insurance; $255.00 for her electrical bill; $76.50 for her water bill; $200.00 for medicine; $21.99 for home security; 

$300.00 for food; $200.00 for gas; $30.00 for dental; and $180.00 for household supplies. 

4

In its calculation, OWCP miscalculated the overpayment amount as $20,379.24. However, it noted on the cover 

letter and in its conclusion that the overpayment amount was $20,379.34. 

5 The monthly income was listed as $587.60 (net) for appellant and $984.00 for her spouse. This amounts to 

$1,571.60 as opposed to the $2,571.60 total found by OWCP.

6 The monthly household expenses were listed as: $150.00 for food; $632.90 for mortgage; $127.50 for electricity; 

$38.50 for water; $70.00 for telephone; $200.00 for vehicle gas; $67.61 for car insurance; $137.34 for medical/dental 

copay; $71.22 for cable; $38.50 for internet; and $35.25for auto repairs. 
4

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability or death of an employee resulting from personal injury sustained while in the 

performance of duty.7 Section 8129(a) of FECA provides, in pertinent part: 

“When an overpayment has been made to an individual under this subchapter 

because of an error of fact or law, adjustment shall be made under regulations 

prescribed by the Secretary of Labor by decreasing later payments to which an 

individual is entitled.”

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Section 8116(a) of FECA provides that while an employee is receiving compensation or if

he or she has been paid a lump sum in commutation of installment payments until the expiration 

of the period during which the installment payments would have continued, the employee may not 

receive salary, pay or remuneration of any type from the United States, except in limited specified 

instances.9

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $20,379.34, for which she was without fault. 

In this case, appellant received two schedule awards for her bilateral lower extremities. In 

a May 17, 2016 schedule award, she received an award for seven percent permanent impairment 

of the left lower extremity and two percent permanent impairment of the right lower extremity. In 

a December 19, 2017 schedule award, appellant received an award for eight percent permanent 

impairment of the left lower extremity and two percent permanent impairment of the right lower 

extremity. The schedule awards were duplicative of each other with the exception of a one percent 

increase in permanent impairment of the left lower extremity in the December 19, 2017 schedule 

award. Appellant was not entitled to receive duplicative schedule award compensation for the 

same body part.10

The Board finds that OWCP properly determined the amount of overpayment as 

$20,379.35, the amount of duplicative schedule award compensation.11 The evidence of record 

shows that appellant received $20,379.34 in her first schedule award and $22,916.08 in her second 

schedule award. OWCP properly determined that she had received a $20,379.34 overpayment as 

 

7

5 U.S.C. § 8102(a).

8

Id. at § 8129(a).

9

Id. at § 8116(a).

10 C.H., Docket No. 16-0968 (issued August8, 2016). 

11 See L.D., Docket No. 18-1317 (issued April17, 2019).
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the schedule award compensation was duplicative.12 The Board further notes that appellant did 

not contested the fact or amount of the overpayment.

LEGAL PRECEDENT -- ISSUE 2

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that 

rests within OWCP’s discretion pursuant to statutory guidelines.13 Section 8129 of FECA14

provides that an overpayment must be recovered 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.” Thus, a finding that appellant was 

without fault does not automatically result in waiver of recovery of the overpayment. OWCP must 

then exercise its discretion to determine whether recovery of the overpayment would defeat the

purpose of FECA or would be against equity and good conscience.15

According to 20 C.F.R. § 10.436, 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 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.16 An individual’s liquid assets 

include, but are not limited to case, the value of stocks, bonds, savings accounts, mutual funds,

and certificates of deposits.17 According to 20 C.F.R. § 10.437 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 attempting to repay the debt and when 

an 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.18 To establish that a valuable right 

has been relinquished, it must be shown that the right was in fact valuable, that it cannot be 

regained and that the action was based chiefly or solely in reliance on the payments or on the notice 

of payment.19

 

12 Id.

13 See L.D., Docket No. 18-1317 (issued April17, 2019); P.J., Docket No. 18-0248 (issued August14, 2018); 

Robert Atchison, 41 ECAB 83, 87 (1989).

14 5 U.S.C. § 8129(1)-(b); A.C., Docket No. 18-1550 (issued February 21, 2019); see D.C., Docket No. 17-0559 

(issued June 21, 2018).

15 A.C., id.; see V.T.,Docket No. 18-0628 (issued October 25, 2018).

16 20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $6,200.00 for an 

individual or $10,300.00 for an individual with a spouse or dependent. Federal (FECA) Procedure Manual, Part 6 --

Debt Management, Initial Overpayment Actions, Chapter 6.400.4(a) (September 2018).

17 Id. 

18 20 C.F.R. § 10.437(a), (b).

19 Id. at § 10.437(b)(1).
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ANALYSIS -- ISSUE 2

The Board finds that the case is not in posture as to whether OWCP properly denied waiver 

of recovery of the $20,379.34 overpayment.

The Board notes that whether recovery of the overpayment would defeat the purpose of 

FECA is a two prong test. Initially it is noted that appellant reported monthly household income 

and expenses for herself and her spouse in amounts that differed from OWCP’s totals. Appellant 

reported total monthly income of $3,289.10 for her household, which included $984.00 in her 

spouse’s social security income. OWCP reported a total monthly income of $2,571.60, but failed 

to explain how this amount was calculated. It included appellant’s spouse $984.00 monthly 

income, but found without explanation that appellant had only $587.60 in net monthly income. 

The Board notes that this would total $1,571.60, not the $2,571.50 found by OWCP. Appellant 

also reported total monthly household expenses of $2,948.11 plus monthly installments of credit 

card debt of $50.00, for a total of $2,998.11. OWCP however found a total monthly expenses of 

$1,606.32. While it listed appellant’s monthly expenses, it failed to explain how it calculated the 

expenses. For example, OWCP listed appellant’s monthly mortgage payment as $632.90. A copy 

of appellant’s April 1, 2017 mortgage statement of record, however, indicated the amount of 

$1,253.99 with a handwritten notation which indicated that the monthly mortgage payment had 

increased to $1,265.80. Additionally, OWCP failed to list some of the expenses appellant claimed,

and submitted evidence of, such as her home security system. Given these discrepancies, it is 

unclear whether appellant needs substantially all of her current income to meet ordinary and 

necessary living expenses. 

The Board further notes that appellant has claimed assets of $5,576.49 for herself and her 

spouse, which is below the statutorily allowed resource base of $10,300.00 for an individual with 

a spouse.

Furthermore, the Board finds that OWCP did not address and it is unclear from the record 

whether recovery of the overpayment would be against equity and good conscience such that 

appellant gave up a valuable right or changed her position for the worse in reliance on the initial 

schedule award payments for which the overpayment was declared.20 Appellant indicated that she 

no longer had funds from the schedule award. She noted starting a cleaning business in 2016,

which was unsuccessful, and for which she claimed a loss, as evidenced by her 2017 tax return. 

To the extent that appellant is claiming detrimental reliance on the schedule award payments, this 

issue should be further developed by OWCP on remand.

For the above reasons, the case is not in posture as to whether OWCP properly denied 

waiver of recovery of the $20,379.34 overpayment.21 The case will therefore be remanded to 

properly determine the amount of appellant’s total income and expenses. Following this and such 

other further development as deemed necessary, OWCP shall issue a de novo decision. 

 

20 Supra note 18; see C.H., Docket No. 16-0968 (issued August8, 2016). 

21 Due to the disposition of this issue, appellant’s argument on appeal will not be addressed.
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CONCLUSION

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

$20,379.34 for the period April 5 through October 3, 2016 due to receipt of duplicative schedule 

award compensation, for which she was without fault. The Board further finds that the case is not 

in posture for decision as to whether OWCP properly denied waiver of recovery of the $20,379.34 

overpayment. 

ORDER

IT IS HEREBY ORDERED THAT the December 12, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is

remanded for further development consistent with this decision.

Issued: October 29, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board