United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.E., Appellant

and

U.S. POSTAL SERVICE, BANNING POST 

OFFICE, Banning, CA, Employer

__________________________________________

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Docket No. 23-0995

Issued: January 5, 2024

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 July 20, 2023 appellant filed a timely appeal from an April 26, 2023 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 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the

Board’s Rules of Procedure, oral argumentmay be held in the discretion of the Board. 20 C.F.R. § 501.5(a). The

Board, in exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can 

adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would 

further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is 

denied, and this decision is based on the case record as submitted to the Board.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the issuance of the April 26, 2023 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 appellant received an overpayment of compensation in the 

amount of $2,663.82 for the period July 18, 2016 through May 14, 2020, for which she was 

without fault, because she improperly received wage-loss compensation at an augmented rate; 

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On May 15, 2013 appellant, then a 48-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained right carpal tunnel syndrome due to 

factors of her federal employment including performing repetitive casing and motion.5 She 

noted that she first became aware of her condition on February 1, 2011, and realized the 

relationship to her federal employment on March 1, 2011. OWCP accepted appellant’s claim for

right complete rotator cuff rupture and right carpal tunnel syndrome. It thereafter paid her wageloss compensation on the supplemental and periodic rolls for intermittent periods of disability 

from work commencing July 12, 2014.

OWCP, by decision dated September 15, 2020, found that appellant was not entitled to 

augmented compensation during the period of her disability from work because her nephew

could not be considered a “child” under section 5 U.S.C. § 8101(9) and, thus, he was not an 

eligible dependent as defined under 5 U.S.C. § 8110.

On February 17, 2021 appellant appealed to the Board. By decision dated August 24, 

2021, the Board affirmed the September 15, 2020 decision, finding that she had not met her 

burden of proof to establish that her wage-loss compensation should have been paid at an 

augmented rate. The Board explained that, although appellant was the legal guardian of her 

nephew, he was not considered a “child” as defined under 5 U.S.C. § 8101(9) and, thus, he was 

not an eligible dependent as defined under 5 U.S.C. § 8110.

On September 30, 2021 appellant requested reconsideration before OWCP. By decision 

dated November 23, 2021, OWCP denied modification of its September 15, 2020 decision. 

On February 2, 2023 OWCP advised appellant that it had made a preliminary 

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

$2,663.82 for the period July 18, 2016 through May 14, 2020. It related that she received 

4 Docket No. 21-0515 (issued August 24, 2021).

5 OWCP assigned the present claim OWCP File No. xxxxxx042. Appellant has prior claims. In OWCP File No. 

xxxxxx124, OWCP accepted her September 16, 2016 traumatic injury for strain of unspecified muscle, fascia and 

tendon at shoulder and upper arm level, right and left arm; and strain of unspecified muscle, fascia and tendon at 

neck level. In OWCP File No. xxxxxx070,it accepted appellant’s July 21, 2021 occupational disease for trigger 

finger, right middle finger; and sprain of right middle finger. OWCP administratively combined these claims with 

the current claim serving as the master file.
3

compensation at the augmented 3/4 rate (75 percent) but did not have an eligible dependent. 

OWCP further related that appellant should have been paid at the basic 2/3 rate (66 2/3 percent). 

It determined that she was entitled to $21,431.59 at the basic 2/3 rate for the stated period.

OWCP noted the intermittent periods July 18, 2016 through May 14, 2020 that appellant 

received compensation paid at the 3⁄4 augmented rate. It then calculated the overpayment by 

subtracting $21,431.59, the amount she should have been paid at the 2/3 rate, from $24,095.41, 

the amount that she was paid, finding that she received an overpayment of compensation in the 

amount of $2,663.82 during the period July 18, 2016 through May 14, 2020. OWCP also 

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

the overpayment. It provided an overpayment action request form and an overpayment recovery 

questionnaire (Form OWCP-20) for her completion and advised that, for OWCP to consider the 

question of waiver or to determine a reasonable method for collection, she must provide a 

completed Form OWCP-20 and attach supporting financial documentation. OWCP requested 

that appellant complete the enclosed Form OWCP-20 and submit supporting financial 

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

canceled checks, pay slips, and any other records supporting his reported income and expenses. 

Additionally, it notified her that, within 30 days of the date of the letter, she could request a final 

decision based on the written evidence, or a prerecoupment hearing. No response was received.

OWCP provided compensation payment records and overpayment worksheets for the 

period July 18, 2016 through May 14, 2020 further explaining the $2,663.82 overpayment. 

By decision dated April 26, 2023, OWCP finalized the preliminary overpayment 

determination, finding that an overpayment of compensation in the amount of $2,663.82 had 

been created because appellant received compensation at the augmented rate during the period 

July 18, 2016 through May 14, 2020 when she did not have an eligible dependent. It found that 

she was without fault in the creation of the overpayment, but denied waiver of recovery of the 

overpayment, noting that she had not responded to the February 2, 2023 preliminary 

overpayment determination. OWCP requested that appellant forward the entire payment of 

$2,663.82.

LEGAL PRECEDENT -- ISSUE 1

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

employee resulting from 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 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.

7

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 

6

5 U.S.C. § 8102(a).

7 T.G., Docket No. 23-0332 (issued August 2, 2023); A.A., Docket No. 22-0751 (issued December 12, 2022); 

E.B., Docket No. 19-1571 (issued December 31, 2020); R.G., Docket No. 18-1251 (issued November 26, 2019);

O.R., 59 ECAB 432, 436 (2008); id. at §§ 8105(a) and 8110(b).
4

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. 8

ANALYSIS -- ISSUE 1

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

of $2,663.82 for the period July 18, 2016 through May 14, 2020, for which she was without 

fault, because she improperly received wage-loss compensation at an augmented rate.

The Board preliminarily notes that it found in its August 24, 2021 decision that appellant 

failed to establish that her wage-loss compensation should have been paid at an augmented rate

because although she was the legal guardian of her nephew, he was not considered a “child” as 

defined under section 8101(9) of FECA and, thus, he was not an eligible dependent as defined 

under section 8110 of FECA. Findings made in prior Board decisions are res judicata absent 

further review by OWCP under section 8128 of FECA.9 Therefore, the Board’s prior finding 

regarding the dependent status of appellant’s nephew is not subject to further consideration.

OWCP paid appellant compensation at the augmented rate for the period July 18, 2016 

through May 14, 2020 despite the fact that she did not have a qualifying dependent under FECA. 

It calculated the resulting overpayment as $2,663.82. The record contains compensation 

payment records, as well as overpayment worksheets explaining the overpayment calculation and 

how the overpayment occurred. The Board has reviewed these calculations and finds that 

OWCP properly determined that an overpayment of $2,663.82 was created.

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 

when adjustment or recovery would defeat the purpose of FECA or would be against equity and 

good conscience.”

10

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 request for waiver shall be considered until the requested information is 

furnished.11

8 T.G., id.; A.A., id.; S.D., Docket No. 17-0309 (issued August7, 2018); Ralph P. Beachum, Sr., 55 ECAB 442, 

445 (2004).

9 R.K., Docket No. 21-0873(issued May 8, 2023); T.S., Docket No. 22-1354 (issued May 1, 2023); Clinton E. 

Anthony, Jr., 49 ECAB 476, 479 (1998). 

10 5 U.S.C. § 8129.

11 20 C.F.R. § 10.436.
5

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 consc ience.

12

 Appellant, 

however, had the responsibility to timely provide financial information to OWCP, but did not do 

so.13

In its February 2, 2023 preliminary overpayment determination, OWCP explained the 

importance of providing the completed Form OWCP-20 and supporting financial information. It 

advised appellant that it would deny waiver of recovery if she failed to furnish the requested 

financial information within 30 days. Appellant did not respond to the preliminary overpayment 

determination before OWCP issued its final overpayment determination on April 26, 2023. 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.14

As appellant did not submit the information required under 20 C.F.R. § 10.438, which 

was necessary to determine her eligibility for waiver, the Board finds that OWCP properly 

denied waiver of recovery of the overpayment.15

CONCLUSION

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

of $2,663.82 for the period July 18, 2016 through May 14, 2020, for which she was without 

fault, because she improperly received wage-loss compensation at an augmented rate. The Board 

further finds that OWCP properly denied waiver of recovery of the overpayment. 16

12 Id.; see also B.G., Docket No. 20-0541 (issued April 28, 2021); R.H., Docket No. 15-0392 (issued 

February 3, 2016).

13 Id. at § 10.438; see N.J., Docket No. 19-1170 (issued January 10, 2020).

14 T.G., Docket No. 23-0332 (issued August 2, 2023); B.A., Docket No. 20-0947 (issued July 15, 2021);

B.G., supra note 12; G.G., Docket No. 19-0684 (issued December 23, 2019).

15 T.G., id.; W.H., Docket No.21-0490 (issued July 12, 2022); B.A., id.; D.H., Docket No. 19-0384 (issued 

August 12, 2019).

16 With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing 

those cases where OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is no 

longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to the recovery of the 

overpayment under the Debt Collection Act. See T.C., Docket No. 21-0612 (issued December 2, 2021); R.W., 

Docket No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55 ECAB 610 (2004).
6

ORDER

IT IS HEREBY ORDERED THAT the April 26, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 5, 2024

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