United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.G., Appellant

and

U.S. POSTAL SERVICE, EAST BAKERSFIELD 

STATION, Bakersfield, CA, Employer

__________________________________________

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Docket No. 23-0542

Issued: September 27, 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 March 6, 2023 appellant filed a timely appeal from a December 5, 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.

2

ISSUES

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

overpayment of compensation in the amount of $5,665.00 for the period April 11, 2019 through 

May 23, 2020, for which he was without fault, because he improperly received wage-loss 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance of the December 5, 2022 decision, appellant submitted additional 

evidence. However, the Board’s Rules of Procedureprovides: “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 at an augmented rate, to which he was not entitled; and (2) whether OWCP properly 

denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On October 17, 2000 appellant, then a 47-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed spondylotic stenosis at L2-3 and L3-4 due 

to factors of his federal employment, which included standing two to three hours per day, walking 

four to seven hours per day, carrying a satchel weighing up to 35 pounds four to seven hours per 

day, lifting up to 70 pounds, stooping, and twisting. 

OWCP initially accepted appellant’s claim for aggravation of lumbar degenerative disc 

disease. Subsequently, on April 18, 2014, it expanded the acceptance of the claim to include

displacement of lumbar intervertebral disc without myelopathy, chronic venous embolism and 

thrombosis of deep vessels of lower extremity, and phlebitis and thrombophlebitis of superficial 

vessels of lower extremities. Appellant stopped working full time on November 12, 2005, and 

began working 5.50 hours per day. OWCP paid him wage-loss compensation on the supplemental 

rolls commencing November 12, 2005 and on the periodic rolls commencing January 20, 2008. It

paid appellant at the augmented 3/4 rate (75 percent).

In a letter dated July 27, 2019, appellant advised OWCP that he would be legally divorced 

effective September 9, 2019. He requested a new healthcare application because he would no 

longer be covered by his wife’s health insurance after September 2019. Appellant also provided 

his new mailing address. 

By letter dated July 31, 2019, OWCP requested that appellant complete an accompanying 

questionnaire regarding his marital status and dependents.

In a questionnaire dated August 5, 2019, appellant advised OWCPthat he no longer resided 

with his wife as of April 11, 2019, and that he made no regular payments for her support. He also 

indicated that he had no dependent child.

In an August 7, 2019 memorandum of telephone call (Form CA-110), appellant advised 

OWCP that he had uploaded the questionnaire.

In a June 9, 2020 manual adjustment form, OWCP determined that an overpayment of 

compensation occurred because appellant was paid at the augmented 3/4 rate, but did not have any 

dependents. The form also showed that, during the relevant period, OWCP paid appellant gross 

compensation of $51,291.96 and net compensation of $49,706.52, but that he should have been 

paid gross compensation of $45,626.95 and net compensation of $44,041.52. OWCP subtracted 

the net compensation of $44,041.52 that appellant was entitled to receive from the net 

compensation of $49,706.52 that he was paid, which resulted in an overpayment of $5,665.00.

On June 25, 2020 OWCP advised appellant that it had made a preliminary overpayment 

determination that he received an overpayment of compensation in the amount of $5,665.00 for 

the period April 11, 2019 through May 23, 2020 because he received compensation at the 

augmented 3/4 rate instead of the basic 2/3 (66 2/3 percent) rate as he no longer had an eligible 

dependent. It noted that he had separated from his spouse, that she was no longer living with him 
3

as of April 11, 2019, and that he was not providing support payments. OWCP further noted that 

he had received a net compensation of $49,706.52 for wage-loss compensation at the augmented 

rate based on an eligible dependent from April 11, 2019 through May 23, 2020. Appellant, 

however, was only entitled to receive $44,041.52 in net compensation based on the appropriate 

basic 2/3 rate for lack of an eligible dependent, resulting in an $5,665.00 overpayment. OWCP 

further advised appellant of its preliminary determination that he was with fault in the creation of 

the overpayment as he continued to receive compensation at the incorrect compensation rate and 

neglected to provide notification within 90 days of the dependency change. It provided an 

overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20) 

for his completion, and advised that, in order for it to consider the question of waiver or to 

determine a reasonable method for collection, he must provide a completed Form OWCP-20 and 

attach supporting financial documentation. Additionally, OWCP 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.

In an overpayment action request form dated June 30, 2020, appellant requested a prerecoupment hearing and waiver of recovery of the overpayment. He contended that he was 

submitting documentation to show that he had contacted OWCP about his marital status. In a

Form OWCP-20 dated June 30, 2020, appellant listed his monthly income as $3,278.00. He listed 

his monthly expenses as $1,334.00 for rent or mortgage, including property tax; $250.00 for food;

$50.00 for clothing; $424.00 for utilities; $253.00 for other expenses; $438.00 for recurring debt, 

for total monthly expenses of $2,749.00. Appellant indicated that he had assets of $3,700.00 in a 

checking account and $39,000.00 in a savings account for total assets of $42,700.00. He did not 

submit any supporting financial documentation. Appellant checked a box marked “Yes”indicating 

that he reported the change in circumstances which affected his monthly payment on 

August 5, 2019.

By decision dated October 13, 2020, an OWCP hearing representative performed a 

preliminary review and found that the case was not in posture for a hearing as OWCP did not 

discuss appellant’s multiple contacts with OWCP advising of his impending divorce and failed to 

explain why appellant was at fault in creation of the overpayment. Thus, the hearing representative 

set aside the June 25, 2020 preliminary overpayment determination and remanded the case to 

OWCP to issue a new preliminary overpayment determination which considered the 

documentation submitted concerning appellant’s divorce and a clear explanation of its fault 

determination. 

On February 10, 2021 OWCP advised appellant that it had made a preliminary 

overpayment determination that he received an overpayment of compensation in the amount of 

$5,665.00 for the period April 11, 2019 through May 23, 2020 because he received compensation 

at the augmented 3/4 rate instead of the basic 2/3 rate when he had no eligible dependent. It noted 

that his spouse was no longer living with him as of April 11, 2019 and he was not providing support 

payments. OWCP also noted that appellant had received net compensation in the amount of 

$49,706.52 for wage-loss compensation at the augmented 3/4 rate based on an eligible dependent 

from April 11, 2019 through May 23, 2020. Appellant, however, was only entitled to receive 

$44,041.52 in net compensation based on the appropriate basic 2/3 rate for lack of an eligible 

dependent, resulting in an $5,665.00 overpayment. OWCP further advised appellant of its 

preliminary determination that he was without fault in the creation of the overpayment as he 
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promptly notified it of the change in his dependency status. It requested that he complete an 

overpayment action request form and a Form OWCP-20 and advised that, in order for it to consider 

the question of waiver or to determine a reasonable payment method, he should submit supporting 

financial documentation, including copies of income tax returns, bank account statements, bills 

and canceled checks, pay slips, and other records to support his reported income and expenses. 

Additionally, OWCP 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.

In a February 22, 2021 letter, appellant requested waiver of recovery of the overpayment 

as he timely reported the change in his dependency status. In a Form OWCP-20 of even date, he

listed his monthly income as $2,990.34 in FECA benefits, $270.00 in veterans’ disability benefits, 

and $57.00 in other benefits, resulting in total monthly income of $3,317.34. Appellant listed his 

monthly expenses as $1,334.00 for rent or mortgage, including property tax; $300.00 for food;

$50.00 for clothing; $376.00 for utilities; $150.00 for other expenses; $150.00 for Medicare; $450 

for recurring debt, for total monthly expenses of $2,810.00. He indicated he had assets of 

$1,631.00 in a checking account; $39,384.00 in a savings account, and $15,000.00 for truck and 

personal property for total assets of $56,015.00. Appellant did not submit any supporting financial 

documentation. 

The record reflects that appellant elected to receive retirement benefits from the Office of 

Personnel Management effective April 1, 2022. 

By decision dated December 5, 2022, OWCP finalized the preliminary overpayment 

determination, finding that an overpayment in the amount of $5,665.00 had occurred during the 

period April 11, 2019 through May 23, 2020 because appellant continued to receive compensation 

at the augmented rate after he no longer had an eligible dependent. It found that he was without 

fault in the creation of the overpayment, but denied waiver of recovery of the overpayment. OWCP 

noted that appellant had not provided any supporting documentation in response to the preliminary 

overpayment determination. It required recovery of the overpayment in full.

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of 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.

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 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 or her monthly pay. 

A disabled employee is entitled to an augmented compensation rate of 75 percent if he or she has 

one or more dependents.

4

Under FECA a dependent includes a husband or wife if: (a) he or she is a member of the 

same household as the employee; (b) the spouse is receiving regular contributions from the 

3

Supra note 1 at § 8102(a).

4

Id. at §§ 8105(a) and 8110(b); P.M.,Docket No. 20-1262 (issued October 15, 2021); B.A., Docket No. 20-0947 

(issued July 15, 2021); O.B., Docket No. 19-0034 (issued April 22, 2019); O.R., 59 ECAB 432, 436 (2008).
5

employee for his/her support; or (c) the employee has been ordered by a court to contribute spousal 

support.5

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.

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ANALYSIS -- ISSUE 1

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

of compensation in the amount of $5,665.00 for the period April 11, 2019 through May 23, 2020, 

for which he was without fault, because he improperly received wage-loss compensation at the 

augmented compensation rate, to which he was not entitled.

Appellant initially received compensation payments at the augmented 3/4 rate, as he was 

married and lived in the same household as his spouse. He later separated from his spouse on 

April 11, 2019, and was divorced effective September 9, 2019. They no longer lived together, and 

appellant denied making regular direct payments for her support effective April 11, 2019. 

Appellant, however, continued to receive compensation at the augmented rate after he no longer 

had an eligible dependent. OWCP has therefore established fact of overpayment. 

The record supports that OWCP erroneously paid appellant compensation based on the 

augmented rate for the period April 11, 2019 through May 23, 2020. As appellant reported the 

date of his separation as April 11, 2019 on the August 5, 2019 OWCP questionnaire, OWCP 

properly determined that date as the start date of the overpayment. 7 OWCP paid appellant 

$49,706.52 in FECA compensation for that period at the augmented rate but, was entitled to only 

$44,041.52 at the basic rate. OWCP properly determined that the difference yielded an 

overpayment of compensation in the amount of $5,665.00. The Board thus finds that OWCP 

properly determined the fact, period, and amount of the overpayment in this case.8

LEGAL PRECEDENT -- ISSUE 2

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

by OWCP unless “incorrect payment has been made to an individual who is without fault and 

5

Id. at 8110(a)(2); see P.M., id.; B.A., id.; O.B., id.

6 P.M., id.; B.A., id.; O.B., id.; E.B., Docket No. 19-1571 (issued December 31, 2020); S.D., Docket No. 17-0309 

(issued August 7, 2018); Ralph P. Beachum, Sr., 55 ECAB 442, 445 (2004).

7 B.A., supra note 4. 

8 P.M., id.; B.A., id.; O.B., id.; W.A., Docket No. 18-0070 (issued May 14, 2018); see D.S., Docket No. 17-1224 

(issued August 28, 2017).
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when adjustment or recovery would defeat the purpose of FECA or would be against equity and 

good conscience.”

9

Section 10.438 of OWCP’s regulations provides 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 on an 

overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure 

to submit the requested information within 30 days of the request shall result in denial of waiver 

and no further requestfor waiver shall be considered until the requested information is furnished.10

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 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 .

11

 Appellant, 

however, had the responsibility to provide supporting financial information and documentation to 

OWCP.

12

In its preliminary overpayment determination dated February 10, 2021, OWCP explained 

the importance of providing the completed overpayment recovery questionnaire and supporting 

financial documentation, including copies of income tax returns, bank account statements, bills, 

pay slips, and any other records to support appellant’s reported income and expenses. It advised 

him that waiver of recovery would be denied if he failed to furnish the requested financial 

information within 30 days. Appellant responded to the preliminary overpayment determination;

however, he did not submit any supporting financial documentation prior to the December 5, 2022

decision. As a result, OWCP did not have the necessary financial information to determine

whether recovery of the overpayment would defeat the purpose of FECA or if recovery would be 

against equity and good conscience.13 Consequently, as appellant did not submit the financial 

information required under 20 C.F.R. § 10.438 of OWCP’s regulations, which was necessary to 

determine his eligibility for waiver, the Board finds that OWCP properly denied waiver of recovery 

of the overpayment.

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9

5 U.S.C. § 8129.

10 20 C.F.R. § 10.438.

11 Id. at § 10.436; see also B.F., Docket No. 22-0857 (issued December 9, 2022); B.A.,supra note 4; S.A.,Docket 

No. 20-0279 (issued June 8, 2021).

12 Id. at § 10.438; see also id.

13 B.F., supra note 11.

14 20 C.F.R. § 10.438;seeB.F., supra note 11; M.D.,Docket No. 19-1500 (issued February 24, 2020); L.D., Docket 

No. 19-0606 (issued November 21, 2019).
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CONCLUSION

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

of compensation in the amount of $5,665.00 for the period April 19, 2019 through May 23, 2020, 

for which he was without fault, because he improperly received wage-loss compensation at an 

augmented rate, to which he was not entitled. The Board further finds that OWCP properly denied 

waiver of recovery of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the December 5, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 27, 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