United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.G., Appellant

and

DEPARTMENT OF LABOR, OFFICE OF 

WORKERS’ COMPENSATION PROGRAMS, 

Dallas, TX, Employer

__________________________________________

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Docket No. 21-0491

Issued: March 23, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 11, 2021 appellant filed a timely appeal from a January 25, 2021 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 met her burden of proof to establish greater than 

8 percent permanent impairment of her right upper extremity and 19 percent permanent 

impairment of her left upper extremity, for which she previously received schedule award 

compensation; (2) whether OWCP properly determined that appellant received an overpayment of 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January25, 2021 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Proceduresprovides: “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

compensation in the amount of $26,608.85 for the period September 26, 2017 through May 10, 

2019, for which she was without fault, as her schedule award compensation exceeded her 

entitlement; and (3) whether OWCP properly denied appellant’s request for waiver of recovery of 

the overpayment.

FACTUAL HISTORY

On May 2, 2013 appellant, then a 45-year-old contact representative, filed an occupational 

disease claim (Form CA-2) alleging that on or before March 19, 2013, she developed pain in her 

neck, left shoulder, left elbow, and left hand due to factors of her federal employment including

repetitive upper extremity motions while reviewing imaged records and keyboarding responses. 

OWCP accepted the claim for brachial neuritis or radiculitis, cervical radiculopathy; neck sprain;

left shoulder and upper arm sprain; left elbow and forearm sprain; and later expanded acceptance

of its claim to include bilateral carpal tunnel syndrome. It paid appellant compensation for 

attendance at medical appointments commencing May 6, 2013.

On November 29, 2017 appellant filed a claim for compensation (Form CA-7) for a 

schedule award. In support thereof, she submitted a September 28, 2017 impairment rating by

Dr. Robert A. Helsten, a family practitioner. Dr. Helsten provided a history of injury and 

treatment. On examination, he performed range of motion (ROM) studies using an inclinometer. 

Regarding the left shoulder, Dr. Helsten observed 140 degrees of flexion, 150 degrees of

abduction, and 60 degrees of internal rotation. For the left elbow, he observed 110 degrees of

flexion, 50 degrees of pronation, and 60 degrees of supination. Dr. Helsten diagnosed cervical 

radiculopathy, cervical sprain, left shoulder/arm sprain, left elbow sprain, and bilateral carpal 

tunnel syndrome. He utilized the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides)

3

to calculate bilateral upper extremity 

impairment using the diagnosis-based impairment (DBI) method. Dr. Helsten opined that 

appellant had attained maximum medical improvement (MMI) as of September 28, 2017. 

Referring to Table 15-23, page 449 (Entrapment/Compression Neuropathy Impairment) of the 

A.M.A., Guides to evaluate right carpal tunnel syndrome, he noted a grade modifier for clinical 

studies (GMCS) of 3 for electrodiagnostic findings, a grade modifier for functional history 

(GMFH) of 2 for significant intermittent symptoms, and a grade modifier for physical findings 

(GMPE) of 3 for loss of muscle mass and diminished grip strength. Dr. Helsten added the three 

modifiers to equal 8, and divided the total by 3 to equal 2.66, rounded upward to 3. He 

administered a QuickDASH questionnaire with a score of 70, consistent with a grade modifier of

3. Dr. Helsten therefore found an eight percent permanent impairment of the right upper extremity. 

He followed the same process to find an eight percent permanent impairment of the left upper 

extremity due to carpal tunnel syndrome. Regarding the left elbow sprain, Dr. Helsten utilized 

Table 15-4, page 398 of the A.M.A., Guides (Elbow Regional Grid) and found a diagnosis-based 

impairment (DBI) for appellant’s class of diagnosis (CDX) of left elbow strain, which resulted in 

a class 1 impairment with a default value of 1. He found a GMFH of 1 due to pain with strenuous 

activities. Dr. Helsten found that GMPE and GMCS were not applicable. He applied the net 

adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (1-1) + (1-1) + (0-1) 

= -1, and found a one percent permanent impairment of the left elbow. Regarding the left shoulder 

sprain, Dr. Helsten referred to Table 15-5, of the A.M.A., Guides (Shoulder Regional Grid) to find 

a class 1 impairment for a CDX of left shoulder sprain, with a default impairment rating of one

3 A.M.A., Guides(6th ed. 2009). 
3

percent. He found a GMFH of 2 for pain with normal activities, a GMPE of 2 for moderate 

palpatory findings and crepitus with shoulder flexion and extension, and a GMCS of 0. Dr. Helsten 

applied the net adjustment formula, (2-1) + (2-1) + (0-1) to calculate a net adjustment of 1, raising 

the default value upward to two percent permanent impairment of the left upper extremity.

On March 1, 2018 OWCP referred appellant’s case to Dr. Arthur S. Harris, a Boardcertified orthopedic surgeon serving as DMA, to provide an opinion on permanent impairment 

under the standards of the A.M.A., Guides. In a July 19, 2018 report, Dr. Harris concurred with

Dr. Helsten’s assessment of an eight percent permanent impairment of each upper extremity due 

to carpal tunnel syndrome. He opined that the ROM would result in greater percentages of 

impairment of the left shoulder and elbow. Regarding the left shoulder, Dr. Helsten found a three

percent permanent impairment due to limited shoulder flexion according to Table 15-34, page 475

(Shoulder Range of Motion), three percent impairment for loss of shoulder abduction, and two

percent impairment due to limited internal rotation, for a total eight percent permanent impairment 

of the left upper extremity. Regarding the left elbow, he found three percent upper extremity 

impairment for limited flexion according to Table 15-33, page 474 (Elbow/Forearm Range of 

Motion), one percent upper extremity for loss of pronation, and one percent impairment for loss 

of supination, equaling a total five percent permanent impairment of the left upper extremity 

impairment. Utilizing the Combined Values Chart, Dr. Harris found 19 percent permanent 

impairment of the left upper extremity.

By decision dated August 28, 2018, OWCP granted appellant a schedule award for 8 

percent permanent impairment of the right upper extremity (arm) due to carpal tunnel syndrome, 

and 19 percent permanent impairment of the left upper extremity (arm) due to carpal tunnel 

syndrome and limited motion of the left shoulder and elbow. The award ran for 84.24 weeksfrom 

September 28, 2017 through May 10, 2019.

On December 6, 2019 OWCP expanded its acceptance of appellant’s claim to include 

aggravation of cervical spondylosis with radiculopathy; aggravation of cervical spinal stenosis;

aggravation of cervical disc disorder with radiculopathy at C4-5, C5-6, and C6-7;sprain of joints 

and ligaments of other parts of neck; and aggravation of cervical disc disorder with radiculopathy 

of the occipital-atlanto-axial region. 

On March 3, 2020 appellant filed a Form CA-7 for an additional schedule award. In 

support thereof, she submitted a January 30, 2020 impairment rating by Dr. Ronnie Shade, a 

Board-certified orthopedic surgeon. Dr. Shade reviewed medical records, noted findings on 

examination, and opined that appellant had attained MMI. He used three trials to obtain ranges of 

motion for the left shoulder: 160 degrees of flexion equaling a three percent upper extremity 

impairment; 35 degrees of extension equaling a one percent upper extremity impairment; 25 

degrees of horizontal adduction equaling a one percent upper extremity impairment; 145 degrees 

of abduction equaling a three percent upper extremity impairment; 80 degrees of internal rotation; 

and 80 degrees of external rotation. Regarding the left shoulder and left elbow, Dr. Shade found 

a GMFH of 2, a GMPE of 1 and no GMCS. Dr. Shade administered a QuickDASH questionnaire 

with a score of 68 for the left shoulder and 34 for the right shoulder. Regarding both wrists, he 

found a GMFH of 2, GMPE of 1 and no GMCS. Dr. Shade observed ranges of left elbow motion 

within normal limits. He found a final 1 percent permanent impairment of the left upper extremity 

due to left elbow impairment using the DBI method for a sprain with no net grade modifier, a 3 

percent permanent impairment of the left upper extremity due to carpal tunnel syndrome, and a 2 

percent permanent impairment of the left upper extremity for mild C6 radiculopathy according to 
4

Table 17-2, pages 564-566 of the A.M.A., Guides (Cervical Spine Regional Grid), a 23 percent 

whole person impairment for the cervical spine with the acknowledgement that FECA did not 

provide for whole person impairments, and 2 percent permanent impairment of the right upper 

extremity due to carpal tunnel syndrome.

On April 1, 2020 OWCP referred appellant’s case to Dr. Harris to provide an opinion on 

permanent impairment under the standards of the A.M.A., Guides. In an April 9, 2020 report,

Dr. Harris found a 2 percent permanent impairment of the right upper extremity and a 14 percent 

permanent impairment of the left upper extremity. He noted that according to Table 15-14, page 

425 (Sensory and Motor Severity) of the A.M.A., Guides and Table 1 of The Guides Newsletter,

Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The 

Guides Newsletter), appellant had no permanent left upper extremity impairment due to cervical 

radiculopathy. Dr. Harris explained that Dr. Shade and Dr. Ford had made a mathematical error 

in calculating the percentage of permanent impairment for the left upper extremity, as they 

included percentages for permanent impairment of the spine according to Table 17-2, although the 

spine was not a scheduled member under FECA. He found that as appellant had previously been 

granted a schedule award for 8 percent permanent impairment of the right upper extremity and 19 

percent permanent impairment of the left upper extremity, that appellant had not established a 

greater percentage of impairment.

In a June 12, 2020 report, Dr. Shade reviewed Dr. Harris’ April 1, 2020 report and 

concurred with his determination of 14 percent permanent impairment of the left upper extremity. 

He acknowledged that his January 30, 2020 impairment rating contained a mathematical error in 

calculating permanent impairment of the left upper extremity.

By decision dated June 16, 2020, OWCP denied appellant’s claim for an increased 

schedule award, based on Dr. Shade’s opinion as reviewed by Dr. Harris, which found a lesser 

percentage of bilateral upper extremity impairment than that previously awarded.

In a memorandum dated July 2, 2020, OWCP indicated that a potential overpayment was 

identified. It noted that appellant had received a schedule award for 8 percent permanent 

impairment of the right upper extremity and 19 percent permanent impairment of the left upper 

extremity. Appellant’s total schedule award compensation for the 84.24-week period from 

September 28, 2017 through May 10, 2019, was $65,109.65. Dr. Shade’s January 30, 2020 

impairment rating, as reviewed by Dr. Harris, established 14 percent permanent impairment of the 

left upper extremity and 2 percent permanent impairment of the right upper extremity, equal to 

49.92 weeks of compensation. This resulted in a reduction of 34.32 weeks of compensation. 

OWCP therefore determined that schedule award compensation paid for the 34.32-week period 

from September 11, 2018 through May 10, 2019, in the amount of $26,608.85, represented an 

overpayment of compensation.

On July 2, 2020 OWCP informed appellant of its preliminary overpayment determination 

that she had received a $26,608.85 overpayment of schedule award compensation for the period 

September 28, 2018 through May 10, 2019. It explained that she had received $65,109.65 for 8 

percent permanent impairment of the right upper extremity and 19 percent permanent impairment 

of the left upper extremity, when she was entitled to only $38,500.80 for 2 percent permanent 

impairment of the right upper extremity and 14 percent permanent impairment of the left upper 

extremity. OWCP also made a preliminary overpayment determination that appellant was without 

fault in the creation of the overpayment. It advised her that she could submit evidence challenging 
5

the fact or amount of the overpayment, or request waiver of recovery of the overpayment. OWCP 

provided an overpayment action request form and informed appellant that she could submit 

additional evidence in writing or at a prerecoupment hearing, but that a prerecoupment hearing 

must be requested within 30 days of the date of the written notice of overpayment. It requested 

that she complete and return an overpayment recovery questionnaire (Form OWCP-20) within 30 

days even if she was not requesting waiver of recovery of the overpayment. OWCP requested that 

appellant submit supporting financial documentation, including copies of income tax returns, bank 

account statements, bills, pay slips, and any other records to support income and expenses. It 

advised her that it would deny waiver of recovery of the overpayment if she failed to furnish the 

requested financial information within 30 days.

In response, appellant completed an overpayment action request form signed on July 20, 

2020 requesting a prerecoupment hearing and waiver of recovery of the overpayment. She also 

submitted a completed Form OWCP-20 and financial documentation establishing monthly 

household income of $5,680.13, monthly expenses of $4,160.00 for rent or mortgage, food, 

clothing, utilities, and debt repayment, and assets including $40.00 cash on hand, $305.00 in a 

savings account, and $40,000.00 in a retirement account. Appellant submitted a reduction-in-force 

notice indicating that appellant’s husband had lost his job in April 2020. She provided pay stubs 

from her husband’s new employment from May through July 2020, with year-to-date earnings of 

$11,002.03. Appellant noted that her husband’s employment was of a temporary nature with 

variable hours.

At the prerecoupment hearing, conducted telephonically on November 9, 2020, appellant 

asserted that she would not have requested an increased schedule award had she known that an 

overpayment could result. She contended that recovery of the overpayment would create severe 

financial hardship.

By decision dated January 25, 2021, OWCP’s hearing representative finalized the 

preliminary overpayment determination, finding that appellant was overpaid compensation in the 

amount of $26,608.85 for the period September 28, 2017 through May 10, 2019, as she previously 

received a schedule award for a greater permanent impairment than she was found to have. The 

hearing representative found appellant without fault in creation of the overpayment. She denied 

waiver of recovery of the overpayment as appellant had between $341.34 and $1,520.13 in 

monthly discretionary income and thus did not need substantially all of her income to meet 

ordinary and necessary living expenses. The hearing representative based the calculation of 

monthly discretionary income on appellant’s husband’s income of $2,750.21 a month, utilizing 

the $11,002.03 in year-to-date income amortized over a four-month period beginning in May 2020.

This resulted in a combined monthly household income of $5,680.13. Additionally, appellant’s

asset base of $40,000.00 exceeded the $10,300.00 resource base for an individual with a spouse. 

Recovery of the overpayment would, therefore, not defeat the purpose of FECA. The hearing 

representative directed recovery of the overpayment at the rate of $325.00 a month.
6

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA4 and its implementing regulations 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. 5 However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results and 

to ensure equal justice under the law to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. 

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.6 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (6th ed. 2009).7

In addressing upper extremity impairments, the sixth edition requires identification of the 

CDX, which is then adjusted by GMFH, GMPE, and GMCS.8 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9

The A.M.A., Guides also provide that the ROM impairment methodology is to be used as 

a stand-alone rating for upper extremity impairments when other grids direct its use or when no 

other DBI sections are applicable.10 If ROM is used as a stand-alone approach, the total of motion 

impairment for all units of function must be calculated. All values for the joint are measured and 

added.11 Adjustments for functional history may be made if the evaluator determines that the 

resulting impairment does not adequately reflect functional loss and functional reports are 

determined to be reliable.12

OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus

the ROM methodology for rating of upper extremity impairments.13 Regarding the application of

4

5 U.S.C. § 8101 et seq.

5

Id. at § 8107; 20 C.F.R. § 10.404.

6

20 C.F.R. § 10.404; H.H., Docket No. 19-1530 (issued June 26, 2020); L.T., Docket No. 18-1031 (issued March 5, 

2019); see also RonaldR. Kraynak, 53 ECAB 130 (2001).

7 Federal (FECA) Procedure Manual, Part 3 --Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); 

id. at Part 2 --Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5 (March 2017).

8 A.M.A., Guides 383-492.

9

Id. at 411.

10 Id. at 461.

11 Id. at 473.

12 Id. at 474.

13 FECA Bulletin No. 17-06 (issued May 8, 2017).
7

ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities, 

FECA Bulletin No. 17-06 provides in pertinent part:

“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify (1) the methodology used by the rating physician (i.e., DBI 

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guides identify a diagnosis that can alternatively be rated by ROM. If the A.M.A., 

Guides allow for the use of both the DBI and ROM methods to calculate an 

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.”

14

 (Emphasis in the original.)

The Bulletin further advises:

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.”

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser 

providing rationale for the percentage of impairment specified.15

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish greater than 8 

percent permanent impairment of the right upper extremity and 19 percent permanent impairment 

of the left upper extremity, for which she previously received schedule award compensation.

In a January 30, 2020 report, Dr. Shade, appellant’s treating physician, opined that 

appellant had five percent permanent impairment of the left upper extremity for limited shoulder 

motion, one percent permanent impairment of the left upper extremity for a left elbow sprain 

utilizing the DBI method, three percent permanent impairment of the left upper extremity for 

carpal tunnel syndrome, two percent permanent impairment of the left upper extremity for mild 

C6 radiculopathy according to Table 17-2, and two percent permanent impairment of the right 

upper extremity for carpal tunnel syndrome. He also found 23 percent permanent impairment of 

14 Id.

15 Supra note 7 at Chapter 2.808.6f (March 2017).
8

the whole person due to cervical spine impairment, but correctly acknowledged that FECA did not 

allow schedule awards for the body as a whole.16

In accordance with its procedures, OWCP properly routed the case record back to its DMA,

Dr. Harris, who indicated in an April 1, 2020 report that he had reviewed Dr. Shade’s January 30, 

2020 report and opined that the 2 percent permanent left upper extremity impairment under Table

17-2 should not have been included as the spine is not a scheduled member of the body under 

FECA. Dr. Harris found that appellant had no permanent impairment of the left upper extremity 

due to cervical radiculopathy. He correctly applied the DBI impairment method of evaluating 

permanent impairment to find 14 percent permanent impairment of the left upper extremity due to 

impaired motion of the shoulder and elbow, and mild left carpal tunnel syndrome. Dr. Harris also 

found two percent permanent impairment of the right upper extremity due to carpal tunnel 

syndrome. He provided a detailed explanation of why the DBI method offered the greater 

percentage of impairment and was thus preferable to the ROM method. 

Dr. Shade submitted a June 12, 2020 addendum report in which he concurred with

Dr. Harris’ April 1, 2020 impairment calculation of 14 percent permanent impairment of the left 

upper extremity and 2 percent permanent impairment of the right upper extremity.

The Board finds that Dr. Harris, the DMA, properly applied the standards of the A.M.A., 

Guides to the physical examination findings of Dr. Shade. The DMA accurately summarized the 

relevant medical evidence including findings on examination and reached conclusions about 

appellant’s conditions that comported with these findings.17 He properly referred to the A.M.A., 

Guidesin calculating appellant’s percentage of permanent impairment of the right upper extremity 

based on carpal tunnel syndrome and of the left upper extremity due to carpal tunnel syndrome 

and limited shoulder and elbow motion. As his report is detailed, well rationalized, and based on 

a proper factual background, the DMA’s opinion represents the weight of the medical evidence. 

There is no medical evidence of record utilizing the appropriate tables of the sixth edition of the 

A.M.A., Guides, demonstrating a greater percentage of permanent impairment of either upper 

extremity. Accordingly, the Board finds that, as appellant has not submitted medical evidence 

establishing more than 8 percent permanent impairment of the right upper extremity and 19 percent 

permanent impairment of the left upper extremity, she has not met her burden of proof.

16 FECA specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19). See also J.G., Docket 

No. 21-1192 (issued March 14, 2022); D.K., Docket No. 21-0303 (issued July 8, 2021); S.M., Docket No. 14-1052 

(issued September 4, 2014).

17 K.K., 20-1532 (issued January 24, 2022); M.S., Docket No. 19-1011 (issued October 29, 2019); W.H., Docket 

No. 19-0102 (issued June 21, 2019); J.M., Docket No. 18-1387 (issued February 1, 2019).
9

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased permanent impairment.

LEGAL PRECEDENT -- ISSUE 2

Section 8102(a) of FECA18 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 his or her duty.19 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.”

20

If a claimant received a schedule award and the medical evidence does not support the 

degree of permanent impairment awarded, an overpayment of compensation may be created. 21 

Claims for an increased schedule award based on the same edition of the A.M.A., Guides are 

subject to overpayment.22

ANALYSIS -- ISSUE 2

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

$26,608.85, for which she was without fault, for the period September 28, 2017 through 

May 10, 2019 for which she was without fault, as her schedule award compensation exceeded her 

entitlement.

In the present case, appellant received $65,109.65 in schedule award compensation for 8 

percent permanent impairment of the right upper extremity and 19 percent permanent impairment 

of the left upper extremity. However, for the reasons explained above, she was only entitled to 

receive $38,500.80 for 2 percent permanent impairment of the right upper extremity and 14 percent 

permanent impairment of the left upper extremity. The difference between these two amounts, 

$26,608.85, constitutes an overpayment of compensation. As noted above, OWCP’s procedures 

allow for the declaration of such an overpayment as both awards were calculated under the same 

edition of the A.M.A., Guides. Therefore, OWCP properly determined that appellant received a 

$26,608.85 overpayment.

18 Supra note 1.

19 5 U.S.C. § 8102(a).

20 Id. at § 8129(a).

21 Supra note 7, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.9e 

(February2013).

22 Id. F.P., Docket No. 20-1646 (issued August 3, 2021); see also W.M., Docket No. 13-0291 (issued 

June 12, 2013).
10

LEGAL PRECEDENT -- ISSUE 3

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.23

Section 10.436 of OWCP’s implementing regulations provides that recovery of an 

overpayment would defeat the purpose of FECA if such recovery would cause hardship 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, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP. 

An 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 $50.00.24 Also, 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 plus $1,200.00 for each additional 

dependent.25 An individual’s liquid assets include, but are not limited to cash, the value of stocks, 

bonds, saving accounts, mutual funds, and certificate of deposits. 26 Nonliquid assets include, but 

are not limited to, the fair market value of an owner’s equity in property such as a camper, boat, 

second home, furnishings/supplies, vehicle(s) above the two allowed per immediate family, 

retirement account balances (such as Thrift Savings Plan or 401(k)), jewelry, and artwork. 27

Section 10.437 of OWCP’s implementing regulations provides that 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. 28 OWCP’s procedures 

provide that, to establish that a valuable right has been relinquished, an individual must 

demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and 

that his or her action was based primarily or solely on reliance on the payment(s) or on the notice 

of payment.29

Section 10.438 of OWCP’s regulations provide that the individual who received the 

overpayment is responsible for providing information about income, expenses, and assets as 

23 5 U.S.C. § 8129.

24 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 

6.400.4a(2) (September 2020); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 

(issued April 26, 2019).

25 Id. at Chapter 6.400.4.a(2) (September 2020).

26 Id. at Chapter 6.400.4.b(3).

27 Id. at Chapter 6.400.4b(3)(a), (b).

28 20 C.F.R. § 10.437; P.M., Docket No. 21-0915 (issued December 14, 2021); see E.H., Docket No. 18-1009 

(issued January 29, 2019).

29 Supra note 24at Chapter 6.400.4c(3) (September 2020).
11

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. 30

ANALYSIS -- ISSUE 3

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.31

The Board finds that as appellant reported $40,000.00 in assets in a Form OWCP-20 on 

July 20, 2020 she had not met the standard for waiver of recovery of the overpayment because her 

assets exceed the allowable resource base of $10,300.00 for an individual with a spouse, such as 

appellant.32 Furthermore, appellant provided detailed financial information regarding her monthly 

household income and expenses, which demonstrated that she had no less than $341.34 in monthly 

discretionary income. The Board finds that this evidence establishes that recovery of the 

overpayment would not defeat the purpose of FECA.33

The Board further finds that appellant has not established that recovery of the overpayment 

would be against equity and good conscience because she has not shown, for the reasons noted 

above, that she would experience severe financial hardship in attempting to repay the debt or that 

she relinquished a valuable right or changed her position for the worse in reliance on the payment 

which created the overpayment. Therefore, OWCP properly found that recovery of the 

overpayment would not defeat the purpose of FECA or be against equity and good conscience. 34

Because appellant has not established that, recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, the Board finds that OWCP properly 

denied waiver of recovery of the $26,608.85 overpayment.35

CONCLUSION

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

$26,608.85 for the period September 28, 2017 through May 10, 2019, for which she was without 

30 20 C.F.R. § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

31 Id. at § 10.436.

32 Supra note 29at Chapter 6.400.4c(3)(September 2020).

33 20 C.F.R. § 10.441(a).

34 P.M., supra note 28; M.R., Docket No. 20-1622 (issued June 30, 2021); L.D., Docket No. 18-1317 (issued 

April 17, 2019); WilliamJ. Murphy, 41 ECAB 569, 571-72(1989).

35 P.M.,id.; F.K., Docket No. 20-1609 (issued June 24, 2021); D.M., Docket No. 17-0810 (issued October 2, 2017).
12

fault, as her schedule award compensation exceeded her entitlement. The Board further finds that 

OWCP properly denied appellant’s request for waiver of recovery of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the January 25, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 23, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board