United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.H., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, Woodinville, WA, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0680 

Issued: August 4, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 22, 2016 appellant filed a timely appeal from a September 2, 2015 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 the case. 

ISSUES 

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

amount of $32,957.67 because he concurrently received Office of Personnel Management 

(OPM) retirement benefits while receiving FECA benefits for the period November 18, 2012 

through November 2, 2013; and (2) whether OWCP properly denied waiver of recovery of the 

overpayment. 

 1

 5 U.S.C. § 8101 et seq. 
2

On appeal appellant asserts that he was entitled to receive both retirement and FECA 

benefits because when he was rehired by the Federal Government after retirement, he received a 

waiver that allowed him to receive both federal pay and his OPM retirement, and that any 

recovery of the overpayment would be against equity and good conscience. 

FACTUAL HISTORY 

On June 8, 2011 appellant, then a 59-year-old criminal investigator filed a traumatic 

injury claim (Form CA-1), alleging that he injured his right ankle while climbing into the back of 

a truck. OWCP accepted right ankle sprain, traumatic arthropathy of the right ankle, and reflex 

sympathetic dystrophy of the right ankle. On November 13, 2012 appellant underwent right 

ankle surgery. He received appropriate compensation, and returned to modified telework on 

November 4, 2013. 

In correspondence dated October 3, 2014, the employing establishment requested that 

OWCP make an overpayment determination because appellant had received FECA 

compensation concurrently with a retirement annuity. It submitted a notification of personnel 

action (Form SF-50) indicating that effective April 30, 2006 appellant voluntarily retired as a 

criminal investigator with the Transportation Security Administration. A second Form SF-50, 

effective October 10, 2010, indicated that appellant was rehired as a criminal investigator with 

the employing establishment. It noted that he was a reemployed annuitant. 

On October 17, 2014 appellant informed OWCP that when he began employment with 

the employing establishment, he received an offset waiver as a condition of employment. He 

noted that he was a rehired annuitant, and maintained that any overpayment should be waived. 

By letter dated November 5, 2014, OWCP advised appellant that since he had received 

FECA benefits during a period when he also received an OPM annuity, this would be considered 

a dual benefit. It informed him that he would have to elect to receive either FECA or OPM 

benefits and provided him an election form. On December 1, 2014 appellant elected OPM 

retirement benefits, effective May 22, 2011. He again requested waiver of any overpayment. 

On January 13, 2015 OWCP issued a preliminary determination that a $32,957.67 

overpayment of compensation had been created for the period November 18, 2012 through 

November 2, 2013. It explained that the overpayment occurred because appellant received 

FECA benefits and OPM retirement benefits concurrently during this period. Appellant was 

found at fault and was provided an overpayment action request and overpayment recovery 

questionnaire. The record contains an overpayment worksheet and computer printouts showing 

that for the period November 18, 2012 through November 2, 2013 appellant received net FECA 

wage-loss compensation totaling $32,957.67. 

On January 21, 2015 appellant requested a prerecoupment hearing. He submitted an 

overpayment action request in which he requested a hearing, and an overpayment recovery 

questionnaire (Form OWCP-20). On the overpayment recovery questionnaire, appellant listed 

income of $14,661.00 per month, including rental income. He listed approximate monthly 

expenses of $11,505.00, including rental property mortgage, and noted that he supported his wife 
3

and 35-year-old son. Appellant listed assets totaling $16,705.00.2

 He additionally submitted 

documentation including the October 10, 2010 notice of personnel action, a notice of annuity 

adjustment dated January 3, 2012, and an employing establishment memorandum dated 

September 17, 2010 noting that appellant, an annuitant, was to be rehired as a criminal 

investigator. 

On February 20, 2015 appellant was granted a schedule award for 20 percent permanent 

impairment of the right lower extremity, for 57.6 weeks, to run from October 21, 2014 to 

November 28, 2015. An initial payment of $19,794.21 covered the period October 21, 2014 to 

January 10, 2015, and continuing payments of $6,759.00 every four weeks were to continue to 

November 28, 2015. 

At the hearing, held on July 15, 2015, appellant challenged the fault finding. He testified 

that he would be stopping work in October, that he had a rental condominium and a small boat, 

and that his son who lived with him had undiagnosed Asperger’s syndrome. Appellant indicated 

that he had $40,000.00 in savings to pay off debts, and that his thrift savings had been used to 

pay for two weddings. The hearing representative asked him to submit two cycles of billing 

statements, including utilities and mortgage statements. 

In correspondence dated July 21, 2015, appellant asserted that as a rehired annuitant with 

a waiver, he should be entitled to receive FECA compensation concurrently with his annuity. He 

attached two leave and earnings statements showing net biweekly income of $3,357.35, two 

annuity statements showing net monthly payments of $6,006.89, mortgage statements for his 

residence of $2,698.21 for a first mortgage and $995.24 for a second mortgage, and student loan 

balances of $165,057.00, $7,838.67, and $17,581.79. Appellant included an estimate of present 

income of $14,469.00 monthly, dropping to $7,269.00 monthly after October 4, 2015, with 

monthly expenses totaling $10,245.00, such that, after October 4, 2015, he would have negative 

income. 

By decision dated September 2, 2015, an OWCP hearing representative finalized the 

preliminary overpayment determination, finding that appellant received an overpayment of 

compensation in the amount of $32,957.67 and, while he was not at fault, he was not entitled to 

waiver of recovery of the overpayment. He noted that appellant failed to submit complete 

documentation of his expenses, and that he testified he had accumulated $40,000.00 in 

anticipation of repayment of the overpayment and thus exceeded the asset test. The hearing 

representative concluded that, because appellant submitted insufficient information to verify his 

financial situation, the overpayment was due 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 personal injury sustained while in the 

performance of duty.3 Section 8116(a) states that, while an employee is receiving workers’ 

 2

 This did not include the value of the rental property, although he indicated that its current value was 

$268,543.00. 

3

 5 U.S.C. § 8102(a). 
4

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the Armed Forces, including benefits administered by the Department of Veterans 

Affairs, unless such benefits are payable for the same injury or the same death being 

compensated for under FECA.4

 Section 10.421(a) of OWCP’s implementing regulations 

provides that a beneficiary may not receive wage-loss compensation concurrently with a federal 

retirement or survivor annuity.5

 The beneficiary must elect the benefit that he or she wishes to 

receive.6 OWCP procedures also explain that the employee must make an election between 

OWCP benefits and OPM benefits. The employee has the right to elect the monetary benefit 

which is the more advantageous. This policy also applies to reemployed annuitants.7

ANALYSIS -- ISSUE 1 

The record supports that appellant received both wage-loss compensation under FECA 

and OPM retirement benefits for the period November 18, 2012 through November 2, 2013. As 

a beneficiary may not receive wage-loss compensation concurrently with a federal retirement or 

survivor annuity,8

 an overpayment in compensation was created.9 At the time appellant was 

hired by the employing establishment, he was already a federal annuitant, and his salary as a 

criminal investigator was not offset by his retirement annuity under an exception provided by 

section 553.203 of OPM regulations.10 This, however, does not constitute offset under FECA. 

The clear language of section 8116(a) of FECA, section 10.421(a) of OWCP’s implementing 

regulations, and OWCP procedures prohibits the receipt of FECA wage-loss benefits and a 

federal annuity.11 Although section 553.203 of OPM regulations provides that certain 

reemployed civilian annuitants may be reemployed with full salary and continue to receive a full 

retirement annuity, this exception does not apply to FECA recipients. 

As appellant received $32,957.67 in FECA benefits while concurrently receiving OPM 

retirement benefits, an overpayment of compensation in that amount was created. 

 4

 5 U.S.C. § 8116(a). 

5

 20 C.F.R. § 10.421(a). 

6 Id. 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.100.4.a (January 1997); see also 

R.S., Docket No. 11-428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued 

March 30, 1994). 

8 Id. 

9 See Franklin L. Bryan, 56 ECAB 310 (2005). 

10 5 C.F.R. § 553.203, status of individuals serving without reduction, provides: Annuitants reemployed with full 

salary and annuity under an exception granted in accordance with this part are not considered employees for 

purposes of subchapter III of chapter 83 or chapter 84 of title 5, United States Code. They may not elect to have 

retirement contributions withheld from their pay; they may not use any employment for which an exception is 

granted as a basis for a supplemental or recomputed annuity; and they may not participate in the Thrift Savings Plan. 

11 5 U.S.C. § 8116(a); 20 C.F.R. § 10.421(a), Federal (FECA) Procedure Manual, supra note 7. 
5

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.”12 Section 10.438 of OWCP regulations provides that [t]he 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.13 

The guidelines for determining whether recovery of an overpayment would defeat the 

purpose of FECA or would be against equity and good conscience are set forth in sections 

10.434 to 10.437 of OWCP regulations.14

Section 10.436 provides that recovery of an overpayment would defeat the purpose of 

FECA if recovery would cause hardship because the beneficiary 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 from data provided by the Bureau of Labor Statistics.15 For waiver under 

the defeat the purpose of FECA standard, appellant must show that he or she needs substantially 

all of his or her current income to meet current ordinary and necessary living expenses, and that 

assets do not exceed the resource base.16 OWCP procedures provide that the assets must not 

exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a 

spouse or dependent plus $960.00 for each additional dependent.17

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. Non-liquid 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, and furnishings/supplies.18

 12 5 U.S.C. § 8129. 

13 20 C.F.R. § 10.438. 

14 5 U.S.C. § 10.434-10.437. 

15 Id. at § 10.436. 

16 Id. 

17 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.200.6.a (June 2009). 

18 Id. 
6

ANALYSIS -- ISSUE 2 

 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.19 At the hearing, 

the hearing representative advised appellant of the exact type of financial information he needed 

to submit. While appellant submitted some financial information, he submitted no specific 

evidence to substantiate claimed utility expenses or specific information such as mortgage 

statements or rent receipts regarding his rental property, as requested by the hearing 

representative. Thus, OWCP did not have the necessary financial information to determine if 

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

equity and good conscience such that it would cause a financial burden. 

 Moreover, appellant testified at the hearing that he had amassed $40,000.00 in savings 

which he testified was to pay off debts. As this exceeds the resource base of $8,000.00 for an 

individual with one qualifying dependent,20 he has not established that he is entitled to a waiver 

on the basis of defeating the purpose of FECA.21

 Consequently, as appellant did not submit the financial information requested that is 

required under section 10.438 of OWCP’s regulations, which was necessary to determine his 

eligibility for waiver, and because his assets exceeded the allowable resource base, OWCP 

properly denied waiver of recovery of the overpayment in the amount of $32,957.67.22

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

reviewing those cases where OWCP seeks recovery from continuing compensation benefits 

under FECA.23 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. 

CONCLUSION 

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

of $32,957.67, and that OWCP properly denied waiver of recovery of the overpayment. 

 19 Supra note 15. 

20 Federal (FECA) Procedure Manual, supra note 17. Appellant submitted no evidence to support that his 35-

year-old son was a qualifying dependent. 

21 See K.K., Docket No. 09-207 (issued October 2, 2009). 

22 20 C.F.R. § 10.438. 

23 Cheryl Thomas, 55 ECAB 610 (2004). 
7

ORDER 

IT IS HEREBY ORDERED THAT the September 2, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 4, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board