United States Department of Labor

Employees’ Compensation Appeals Board

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E.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

U.S. BORDER PATROL, Del Rio, TX, Employer

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Docket No. 23-0089

Issued: June 13, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 25, 2022 appellant filed a timely appeal from a July 25, 2022 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.

ISSUES

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

amount of $3,051.29 for the period December 5, 2021 through January 1, 2022, for which he was 

without fault, because he received schedule award compensation to which he was not entitled; and 

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

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 26, 2006 appellant, then a 49-year-old supervisory border patrol agent, filed an 

occupational disease claim (Form CA-2) alleging that he sustained hearing loss due to factors of 

his federal employment. He noted that he first became aware of his condition and realized its 

relation to his federal employment on June 15, 1998. Appellant did not stop work. OWCP 

accepted the claim for five percent binaural hearing loss and authorized hearing aids.

By decision dated February 7, 2007, OWCP granted appellant a schedule award for five

percent binaural hearing loss. It determined that he had reached maximum medical improvement 

(MMI) on October 10, 2006. The period of the award ran for 10 weeks from October 10 through 

December 18, 2006 and was paid via a lump-sum payment of $12,010.00.

Appellant subsequently retired.

By decision dated September 2, 2021, OWCP granted appellant a schedule award for an 

additional 18 percent binaural hearing loss. The period of the award ran for 36 weeks, from April 8

through December 15, 2021. On December 31, 2021 OWCP paid appellant schedule award 

compensation of $3,051.29 for the period December 5 through 15, 2021. On January 1, 2022 it 

paid him schedule award compensation of $3,051.29 for the period December 5, 2021 through 

January 1, 2022.

In a preliminary overpayment determination dated January 20, 2022, OWCP notified 

appellant of its preliminary finding that he had received a $3,051.29 overpayment of schedule 

award compensation for the period December 5, 2021 through January 1, 2022, because it had 

issued duplicate payments for the same period. It determined that he was without fault in the 

creation of the overpayment. OWCP requested that appellant submit a completed overpayment 

recovery questionnaire (Form OWCP-20) to determine a reasonable recovery method and advised 

him that he could request waiver of recovery of the overpayment. It further requested that he 

provide supporting financial documentation, including copies of income tax returns, bank account 

statements, bills, canceled checks, pay slips, and any other records supporting income and 

expenses. Additionally, OWCP provided an overpayment action request form and notified 

appellant that, within 30 days of the date of the letter, he could request a final decision based on 

the written evidence or a prerecoupment hearing.

On February 2, 2022 appellant requested a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review regarding the claimed overpayment. He disagreed 

that the overpayment occurred, with the amount of the overpayment and requested a waiver of 

recovery of the overpayment because he was found to be without fault in the creation of the 

overpayment. Appellant submitted a Form OWCP-20 on thatsame date and reported total monthly 

income of $4,371.00, total monthly expenses of $2,900.00, including monthly payments toward a 

$30,000.00 mortgage. He did not list any assets. Appellant asserted that he received a letter from 

the Department of Labor stating that he had been underpaid and should have been compensated at 

the augmented rate of 75 percent. He believed the difference should have been around $6,000.00,

and he thus had no reason to doubt the amount of payment he received .
3

The prerecoupment hearing took place on May 17, 2022. Appellant testified that he was 

without fault in the creation of the overpayment and that he had a bill for $24,000.00 for his wife’s 

recent open-heart surgery, which insurance had not yet paid, and of which he expected to pay 

$6,000.00.

Appellant also submitted a number of explanation of benefits documents from his health 

insurance provider. Each of the documentsindicated that it was not a bill, and several of the claims 

had not yet been processed by the insurance provider.

By decision dated July 25, 2022, OWCP’s hearing representative finalized the preliminary 

overpayment determination, finding that appellant had received a $3,051.29 overpayment of 

schedule award compensation because it paid him a duplicate schedule award payment. It noted 

that his schedule award ended on December 15, 2021. OWCP advised that it had issued a schedule 

award payment for the period December 5 through 15, 2021, but that, due to an error, it had 

subsequently issued a duplicate schedule award payment for the period December 5, 2021 through 

January 1, 2022. It found that appellant was without fault in the creation of the overpayment, but 

denied waiver of recovery of the overpayment, because the evidence of record failed to establish 

that recovery of an overpayment would defeat the purpose of FECA or be against equity and good 

conscience. OWCP required recovery of the overpayment by directing him to repay the full 

amount within 30 days of the date of the decision.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA2 and its implementing regulations3 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use, of scheduled members or functions of the body. Section 10.404 of the 

regulations provides that compensation is provided for specified periods of time for the permanent 

loss or loss of use of certain members.4 FECA provides for 200 weeks of compensation for 100 

percent loss of hearing of both ears5 and the implementing regulations provides that compensation 

for proportionate periods of time is payable for partial loss. 6

OWCP’s procedures provide that an overpayment is created when a schedule award 

expires, but compensation continues to be paid.7

2

Id.

3

20 C.F.R. § 10.404.

4

Id.

5

5 U.S.C. § 8107(c)(13)(B).

6

Supra note 3.

7 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, 

Chapter 6.200.1f(1)(i) (September 2020); see V.R., Docket No. 22-0086 (issued May 3, 2022); T.C., Docket No. 

20-0302 (issued November 12, 2020).
4

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of schedule award compensation 

in the amount of $3,051.29 for the period December 5, 2021 through January 1, 2022 for which he 

was without fault.

On September 2, 2021 OWCP granted appellant a schedule award for an additional 18

percent binaural hearing loss. The period of the award ran for 36 weeks from April 8 through

December 15, 2021. The Board notes that 18 percent of the 200 weeks of compensation allowable 

for total loss of hearing of both ears equals 36 weeks of compensation. OWCP paid appellant 

schedule award compensation for 36 weeks, from April 8 through December 15, 2021. It 

subsequently issued an extra schedule award payment covering the period December 5, 2021

through January 1, 2022 in the amount of $3,051.29. Appellant was not entitled to the $3,051.29 

payment as he had already been fully compensated for the schedule award. 8 Consequently, he 

received an overpayment of compensation in the amount of $3,051.29 for the period December 5, 

2021 through January 1, 2022.

9

 The Board, thus, finds that OWCP properly determined the fact 

and amount of the overpayment.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP 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.10

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause 

hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP 

seeks recovery needs substantially all of his or her 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.11 An individual is deemed to meet current 

ordinary and necessary living expenses if monthly income does not exceed monthly expenses by 

more than $50.00.12

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 

8

See T.S., Docket No. 19-1895 (issued September 22, 2020);M.J., Docket No. 19-1665 (issued July 29, 2020).

9

See S.L., Docket No. 21-0902 (issued December 22, 2021).

10 5 U.S.C. § 8129.

11 20 C.F.R. § 10.436(a)-(b). For an individual with no eligible dependents the asset base is $6,200.00. The base 

increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional 

dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400.4a(2) (September 2020).

12 Id. at Chapter 6.400.4.a(3); see also N.J.,Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 

18-1666 (issued April 26, 2019).
5

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, gives up a valuable right or changes his or her position 

for the worse.13

OWCP’s regulations provide 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 of an overpayment would defeat 

the purpose of FECA or be against equity and good conscience. The information is also used to 

determine the repayment schedule, if necessary.14

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 of 

recovery of the overpayment 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.15 

Appellant submitted a completed Form OWCP-20 on February 2, 2022. He reported total 

monthly income of $4,371.00 and total monthly expenses of $2,900.00. As his reported monthly

income exceeds his reported ordinary and necessary living expenses by more than $50.00, the 

Board finds that he did not need substantially all of his income for ordinary and necessary living

expenses such that recovery would defeat the purpose of FECA.16

As appellant failed to establish that, recovery of the overpayment of compensation would 

either defeat the purpose of FECA or be against equity and good conscience, the Board finds that 

OWCP properly denied waiver of recovery of the overpayment.

CONCLUSION

The Board finds that appellant received an overpayment of schedule award compensation 

in the amount of $3,051.29 for the period December 5, 2021 through January 1, 2022 for which he 

was without fault. The Board further finds that OWCP properly denied waiver of recovery of the 

overpayment.

13 20 C.F.R. § 10.437(a)(b).

14 Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

15 Id. at § 10.436.

16 See A.S., Docket No. 22-0384 (issued March 13, 2023); V.G., Docket No. 20-1520 (issued September 21, 2021);

see also M.C., Docket No. 19-0699 (issued February 12, 2020).
6

ORDER

IT IS HEREBY ORDERED THAT the July 25, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 13, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board