United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Capitol Heights, MD, Employer

__________________________________________

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Docket No. 18-1251

Issued: November 26, 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 June 6, 2018 appellant filed a timely appeal from a December 8, 2017 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.3

 

1 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated April 19, 2019, the Board exercised its discretion and denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 18-1251 (issued April 19, 2019).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the December 8, 2017 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

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $43,633.21 for the period May 24, 2007 through

January 7, 2017 because he improperly received wage-loss compensation at an augmented 

compensation rate; (2) whether it properly found appellant at fault in the creation of the 

overpayment, thereby precluding waiver of recovery of the overpayment; and (3) whether OWCP 

properly required recovery of the overpayment by withholding $200.00 every 28 days from 

appellant’s continuing compensation payments.

FACTUAL HISTORY

On July 19, 2000 appellant, then a 46-year-old Express Mail driver, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained an injury to his head and neck on September 6, 1998

when attempting to avoid a motor vehicle accident while driving in the performance of duty. 

OWCP initially accepted the claim for cervical strain and later expanded the acceptance of the 

claim to include aggravation of cervical myofasciitis.

4

 Appellant returned to part-time work on 

January 6, 1998. In 2001, he underwent a regimen of Botulinum treatments and has not returned 

to work. OWCP placed him on the periodic compensation rolls effective December 2, 2001.

In a letter dated September 17, 2002, OWCP requested that appellant complete an EN1032 

form, which included questions regarding such matters as his employment activities, earnings and 

dependency in order to verify that the appropriate compensations were made. It specifically 

indicated that compensation at the augmented rate of 75 percent of the applicable pay rate may be 

paid for “an unmarried child between 18 and 23 who is a full-time student even if that person does 

not live with you, as long as you make regular direct payments for his or her support.” OWCP

also advised that if he had no eligible dependents he would be paid at 66 2/3 percent of the

applicable pay rate. Appellant completed this form on September 18, 2002 and advised OWCP 

that he had a dependent daughter who was born on October 7, 1982 and a dependent son born on 

July 5, 1983.

Appellant continued to submit completed and signed EN1032 forms through October 10, 

2008, indicating that he had at least one eligible dependent, and as such, was entitled to receive 

wage-loss compensation at the augmented rate.

Beginning October 7, 2009, appellant submitted annual EN1032 forms indicating that he 

no longer had any eligible dependents and, therefore, was no longer entitled to receive 

compensation at the augmented rate.

In a January 17, 2017 development letter, OWCP advised that it had received appellant’s

EN1032 form dated September 20, 2016 where he indicated that he had no dependents. It 

explained that he had been paid at the augmented rate of 75 percent rather than at the basic 

 

4 Appellant had a previously accepted claim for a December 20, 1997 cervical sprain and multiple injuries to his 

head, right shoulder, cervical spine, lumbosacral spine, and right leg on August 25, 1992. OWCP assigned File No. 

xxxxxx568. It has administratively combined File Nos. xxxxxx568 and xxxxxx087 with the latter serving as the 

master file.
3

compensation rate of 66 2/3 percent. OWCP enclosed an EN1032 form for completion and 

afforded appellant 30 days to submit additional evidence and respond to its inquiries.

Appellant subsequently submitted Part A of a Student Dependency form dated January 26, 

2017 indicating that he was not claiming any dependents.

In a February 10, 2017 development letter, OWCP advised appellant that he had not 

completed Part B of the Student Dependency form and afforded him 30 days to complete it.

On February 27, 2017 appellant completed Part B of the Student Dependency form 

indicating that his daughter had attended Bowie State University in Bowie, Maryland from June 2, 

2003 to May 23, 2007.

By letter dated March 21, 2017, OWCP advised appellant that it had made a preliminary 

determination that he received an overpayment of compensation in the amount of $43,633.21 for 

the period May 24, 2007 through January 7, 2017 because he received compensation at the 

augmented three-fourths rate instead of the two-thirds rate when he had no dependents. Its payroll 

records established that it continued to pay him compensation at the augmented rate from May 24, 

2007 to January 7, 2017, which amounted to a total of $391,186.75. Appellant, however, was only 

entitled to receive $347,553.54 in compensation at the basic two-thirds rate, resulting in a 

$43,633.21 overpayment.

5

 OWCP found that he was with fault in the creation of the overpayment

because he knew or reasonably should have known that there was no entitlement to compensation 

at the augmented rate after his daughter graduated from college on May 23, 2007. It further found 

that appellant continued to accept compensation payments at the augmented rate despite such 

knowledge.

The record contains appellant’s pay rate history and a memorandum regarding the dates 

and calculations of the overpayment of compensation.

On April 10, 2017 appellant requested a prerecoupment hearing with a representative of 

OWCP’s Branch of Hearings and Review on the issues of fault and a possible waiver of this 

overpayment.

A prerecoupment hearing was held before an OWCP hearing representative on 

August 30, 2017. The hearing representative advised appellant that it would review his financial 

records prior to issuing its final overpayment decision.

In an overpayment recovery questionnaire (Form OWCP-20) dated September 20, 2017,

appellant reported a total monthly income of $2,592.12. He indicated that he did not support, 

either fully or in part, anyone other than himself. Appellant reported approximately $2,210.00 in 

monthly household expenses ($300.00 for rent, $300.00 for food, $100.00 for clothing, $185.00 

for utilities, and $400.00 other miscellaneous expenses) and $925.00 in monthly credit card debts. 

 

5 OWCP indicated that, during the period May 24, 2007 through January 7, 2017, it paid appellant at a weekly pay 

of $763.92 at three-fourths of the pay rate, effective September 6, 1998, totaling $391,186.75. However, it indicated 

that for the same period it should have paid him at two-thirds of his weekly pay $763.92 for a total of $347,553.54. 

OWCP concluded that the difference between $391,186.75 and $347,553.53 = $43,633.21, the amount of the 

overpayment. 
4

He reported the following assets: $0.00 cash on hand, $250.00 in a checking account, $36.15 in a 

savings account, $6,290.15 in stocks and bonds, and a $53.32 value of other personal 

property/funds totaling $6,629.62. Appellant submitted a number of financial documents in 

support of his claim.

By decision dated December 8, 2017, OWCP’s hearing representative finalized OWCP’s

preliminary overpayment determination, finding that appellant had received an overpayment of 

compensation in the amount of $43,633.21 for the period May 24, 2007 through January 7, 2017 

because he had improperly received augmented compensation without having any dependents. It 

adjusted appellant’s compensation payments to the basic compensation rate and found that he was 

overpaid $43,633.21 for the period May 24, 2007 through January 7, 2017. OWCP found him at 

fault in the creation of the overpayment and, therefore, not entitled to waiver of recovery. It further 

found that appellant’s monthly income exceeded his monthly expenses by $382.12 per month 

($2,592.12 monthly income - $2,210.00 in monthly expenses). OWCP required recovery of the 

overpayment by withholding $200.00 every 28 days from his continuing compensation payments.

LEGAL PRECEDENT -- ISSUE 1

FECA provides that the United States shall pay compensation for the disability or death of 

an employee resulting from a personal injury sustained while in the performance of duty.6 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 percent of his monthly pay. A disabled employee is entitled to 

an augmented compensation rate of 75 percent if he has one or more dependents.7

A dependent includes an unmarried child who, while living with the employee or receiving 

regular contributions from the employee toward his or her support, is either under 18 years of age 

or over 18 years of age and incapable of self-support due to physical or mental disability.8 A child

is also considered a dependent if he or she is an unmarried student under 23 years of age who has 

not completed four years of education beyond the high school level and is currently pursuing a 

full-time course of study at a qualifying college, university, or training program.9

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.10

 

6 5 U.S.C. § 8102(a). 

7 O.R., 59 ECAB 432, 436 (2008); id. at §§ 8105(a) and 8110(b).

8

Id. at § 8110(a). 

9 E.G., 59 ECAB 599, 603 n.10 (2008). 

10 Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004). 
5

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $43,633.21 for the period May 24, 2007 through January 7, 2017 

because he received wage-loss compensation at the augmented rate even though he did not have 

an eligible dependent under FECA.

The evidence of record reflects that appellant continued to receive compensation at the 

augmented rate from May 24, 2007 through January 7, 2017, despite the fact that his daughter, 

who was initially claimed as a dependent, had graduated from college on May 23, 2007 and,

therefore, was no longer a qualifying dependent under FECA. 

In a January 17, 2017 development letter, OWCP notified appellant that it received his 

Form EN1032 dated September 20, 2016 where he reported that he had no qualifying dependents, 

although it had been paying him at the augmented rate. It included an EN1032 form for his 

completion and requested that he provide a statement and certification of school enrollment for 

any dependents using the attached forms. On February 27, 2017 appellant completed a Student 

Dependency form indicating that his daughter had attended Bowie State University in Bowie, 

Maryland from June 2, 2003 through May 23, 2007. 

Payroll records also confirm that OWCP continued to pay appellant compensation at the 

augmented rate from May 24, 2007 to January 7, 2017, which amounted to a total of $391,186.75. 

Appellant, however, was only entitled to receive $347,553.54 in compensation at the basic rate, 

resulting in an overpayment in the amount of $43,633.21. Accordingly, the Board finds that 

OWCP properly determined that he received an overpayment of compensation in the amount of 

$43,633.21for the period May 24, 2007 through January 7, 2017.

LEGAL PRECEDENT -- ISSUE 2

5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be 

made when 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.”

11

 A claimant who is at fault in the creation of the overpayment is not entitled to 

waiver.12 On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual will be found at 

fault if he or she has done any of the following: (1) made an incorrect statement as to a material 

fact which he or she knew or should have known to be incorrect; (2) failed to provide information 

which he or she knew or should have known to be material; or (3) accepted a payment which he 

or she knew or should have known was incorrect.13

With respect to whether an individual is without fault, section 10.433(b) of OWCP’s 

regulations provide that whether or not OWCP determines that an individual was at fault with 

 

11 5 U.S.C. § 8129(b).

12 See C.Y., Docket No. 18-0263 (issued September 14, 2018).

13 20 C.F.R. § 10.433(a).
6

respect to the creation of an overpayment depends on the circumstances surrounding the 

overpayment. The degree of care expected may vary with the complexity of those circumstances 

and the individual’s capacity to realize that he or she is being overpaid.14

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly found appellant at fault in the creation of the 

overpayment and therefore not entitled to waiver of recovery.

OWCP found that appellant was at fault in the creation of the overpayment because he 

accepted payments he knew or should have known to be incorrect as he was aware that he was not 

entitled to augmented compensation when he no longer had an eligible dependent. 

Appellant acknowledges that his daughter graduated from college on May 23, 2007 and 

thereafter was no longer a qualified dependent and as such, he was no longer entitled to augmented 

compensation at the three-fourths rate beginning May 24, 2007. Moreover, beginning October 7, 

2009, he reported on annually submitted EN1032 forms that he did not have an eligible dependent, 

further demonstrating that he was aware that he was no longer entitled to the augmented 

compensation rate.

On appeal appellant contends that he was not at fault in the creation of the overpayment of 

compensation because he had completed the required report advising OWCP that his dependents 

had reached the age of maturity. However, even if the overpayment resulted from negligence on 

the part of OWCP, this does not excuse the employee from accepting payment which he knew or 

should have known he was not entitled to.

15

 

Accordingly, the Board finds that OWCP properly found appellant at fault in the creation 

of the overpayment, as he reasonably knew or should have known that the payments he received 

from OWCP for the period May 24, 2007 through January 7, 2017, which contained an 

overpayment in the amount of $43,633.21, were in error. 

As appellant was at fault under the third standard outlined above,16 recovery of the 

overpayment of compensation in the amount of $43,633.21 may not be waived.

LEGAL PRECEDENT -- ISSUE 3

When an overpayment has been made to an individual 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 the individual is entitled.17 When an overpayment of compensation has 

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

 

14 Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

15 Russell E. Wageneck, 46 ECAB 653 (1995).

16 See supra note 13.

17 5 U.S.C. § 8129(a).
7

OWCP the amount of the overpayment as soon as the error is discovered or his 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 any hardship.18

The individual who received the overpayment is responsible for providing information 

about income, expenses, and assets as specified by OWCP. This information will be used to 

determine the repayment schedule, if necessary.19

The analysis that determines the amount of adjustment is substantially the same as that 

used to determine waiver.20

ANALYSIS -- ISSUE 3

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

$200.00 every 28 days from appellant’s continuing compensation payments.

In an overpayment recovery questionnaire (Form OWCP-20) dated September 20, 2017, 

appellant reported a total monthly income of $2,592.12. He indicated that he did not support, 

either fully or in part, anyone other than himself. Appellant also reported approximately $2,210.00 

in monthly household expenses ($300.00 for rent, $300.00 for food, $100.00 for clothing, $185.00 

for utilities, and $400.00 other miscellaneous expenses) and $925.00 in monthly credit card debts. 

Moreover, he reported at total of $6,629.62 in additional assets. Thus, the Board finds that 

appellant did not need substantially all of his income to cover ordinary and necessary living 

expenses as his discretionary income exceeded $50.00 a month. Appellant’s total monthly income 

was $2,592.12, with $2,210.00 in allowable monthly ordinary and necessary living expenses, 

leaving $382.12 in discretionary income per month,21 well above the $50.00 amount used to 

determine this criterion.22

OWCP’s procedures provide that, if a claimant is being paid compensation or is due 

accrued benefits, the debt should be recovered from such benefits as quickly as possible.23 

Accordingly, the Board finds that OWCP reasonably concluded that a repayment schedule of 

 

18 20 C.F.R. § 10.441.

19 Id. at § 10.438(a).

20 See J.B. (J.B.), Docket No. 16-0707 (issued November 1, 206); Howard R. Nahikian, 53 ECAB 406 (2002).

21 $2,592.12 - $2,210.00 = $382.12.

22 See N.S., Docket No. 14-2081 (issued February 12, 2015); Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Initial Overpayment Actions, Chapter 6.200.6a(1)(b) (June 2009) provides that “[a]n 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]. In other words, the amount of monthly 

funds available for debt repayment is the difference between current income and adjusted living expenses (i.e.,

ordinary and necessary living expenses plus $50[.00]).”

23 See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).
8

$200.00 every 28 days would minimize any resulting hardship while effecting recovery of the 

overpayment.

CONCLUSION

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

of compensation in the amount of $43,633.21 for the period May 24, 2007 through January 7, 2017 

because he improperly received augmented compensation. The Board also finds that OWCP 

properly found him at fault in the creation of the overpayment and, therefore, not entitled to waiver

of recovery of the overpayment. The Board further finds that OWCP properly required recovery 

of the overpayment by withholding $200.00 every 28 days from appellant’s continuing 

compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the December 8, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 26, 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