United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.A., Appellant 

and 

DEPARTMENT OF THE NAVY, DEFENSE 

CONTRACT MANAGEMENT DISTRICT 

OFFICE, Camarillo, CA, Employer 

__________________________________________ 

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Docket No. 15-292 

Issued: April 9, 2015 

Appearances: Case Submitted on the Record

Suzanne Ware, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 14, 2014 appellant, through her representative, filed a timely appeal from 

an October 3, 2014 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 

501.3,2

 the Board has jurisdiction over the merits of the case. 

ISSUES 

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

amount of $35,876.27 because she concurrently received Social Security Administration (SSA) 

benefits for the period March 1, 2007 to August 23, 2014 while receiving FECA benefits; 

(2) whether OWCP properly denied waiver of the overpayment; and (3) whether OWCP properly 

 1

 5 U.S.C. §§ 8101-8193. 

2

 The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this 

evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final 

decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012). 
2

required repayment of the overpayment by deducting $118.83 every 28 days from appellant’s 

continuing compensation. 

On appeal, appellant’s representative, asserts that appellant did not understand the 

preliminary overpayment notification due to mental illness and failing health and, therefore, did 

not timely submit the requested information. She stated that appellant was not aware that she 

was being overpaid and lives on a very strict budget. 

FACTUAL HISTORY 

On August 30, 1991 appellant, then a 50-year-old former clerk typist, filed an 

occupational disease claim alleging that work factors caused depression and anxiety. She had 

stopped work on May 24, 1991. An SF 50 form found in the record indicates that appellant’s 

retirement plan was Federal Employees’ Retirement System (FERS). On September 8, 1992 

OWCP accepted that she sustained precipitation of an episode of bipolar disorder. Appellant 

received appropriate compensation and was placed on the periodic compensation rolls. 

In February 1993 appellant was referred for vocational rehabilitation services. She began 

vocational training in May 1993, which she completed in October 1993. Appellant did not return 

to work and continued to receive wage-loss compensation. She moved from California to Texas 

in 2006. 

Appellant signed OWCP 1032 forms from June 10, 2007 to June 18, 2014, on which she 

indicated that she was not receiving SSA benefits. 

In a July 7, 2014 treatment note, Dr. Yee Yee Thein, an attending Board-certified 

psychiatrist, indicated that appellant stated she was doing well. He indicated that she reported 

financial stress and health concerns. Appellant was alert, with no mania or depression, and on 

examination Dr. Thein found her cooperative, with a fair mood and better affect. There was no 

abnormal thought content present, and her insight, judgment, attention, and language were intact. 

Dr. Thein’s impression was that appellant’s mood was stable but that she seemed to be 

physically deteriorating. He recommended supportive therapy, continued medication, and that 

she return in six months.3

In July 2014 OWCP began development of whether appellant was receiving dual benefits 

from FECA and SSA. On August 12, 2014 SSA provided information regarding her SSA rate 

with and without federal retirement (FERS) benefits, effective March 2007. On August 28, 2014 

OWCP informed appellant that her FECA benefits were being reduced to reflect the contribution 

to her SSA benefits, effective August 24, 2014. 

On September 2, 2014 OWCP issued a preliminary finding that an overpayment of 

compensation in the amount of $35,867.28 had been created. It explained that the overpayment 

 3

 The record did not contain a medical report between August 20, 2012 and July 7, 2014. In the August 20, 2012 

report, Dr. Thein indicated that he began treating appellant on September 6, 2009 for bipolar disorder. He described 

her medication and indicated that she was compliant with treatment and needed ongoing treatment and medication 

management. 
3

occurred because a portion of appellant’s SSA benefits, received from March 1, 2007 through 

August 23, 2014, was based on credits earned while working in the Federal Government, and 

that this portion of her SSA benefit was a prohibited dual benefit. OWCP found appellant 

without fault in creating the overpayment. The preliminary decision provided an explanation of 

the calculation of the overpayment. Appellant was provided an overpayment action request and 

an overpayment questionnaire. She was informed of the actions she could take and was allotted 

30 days to respond. An August 25, 2014 offset calculation worksheet indicated that the FERS 

offset for the period March 1, 2007 through August 23, 2014 totaled $35,876.28. 

On September 26, 2014 appellant’s representative called OWCP. She stated that 

appellant was in the hospital. The daughter was informed that an authorization of representation 

was required. 

Appellant did not respond to the preliminary overpayment letter. By decision dated 

October 3, 2014, OWCP finalized the preliminary overpayment decision, finding that she 

received an overpayment in compensation in the amount of $35,876.28 and, while she was not at 

fault, she was not entitled to waiver of the overpayment because she failed to provide the 

requested information. Repayment in the amount of $118.83 was to be deducted from her 

continuing compensation, per compensation period. 

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.4 Section 8116 limits the right of an employee to receive compensation: 

While an employee is receiving compensation, he or she may not receive salary, pay or 

remuneration of any type from the United States.5 Section 10.421 of the implementing 

regulations provide that an employee may not receive compensation for total disability 

concurrently with separation pay.6 FECA Bulletin No. 97-9 states that FECA benefits have to be 

adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a 

federal employee is part of the FERS retirement package, and the receipt of FECA benefits and 

federal retirement concurrently is a prohibited dual benefit.7

 When OWCP discovers concurrent 

receipt of benefits, it must declare an overpayment in compensation and give the usual due 

process rights.8

 4

 5 U.S.C. § 8102(a). 

5 Id. at § 8116(a). 

6

 20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007). 

7

 FECA Bulletin No. 97-9 (issued February 3, 1997). 

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d(4) (April 1996). 
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ANALYSIS -- ISSUE 1 

The record supports that appellant received FECA wage-loss compensation beginning in 

1991 and that she received SSA benefits beginning on March 1, 2007. The portion of the SSA 

benefits she earned as a federal employee was part of her FERS retirement package, and the 

receipt of benefits under FECA and federal retirement benefits concurrently is a prohibited dual 

benefit.9 Appellant’s FECA compensation was not offset until August 24, 2014. The SSA 

notified OWCP of the applicable SSA rates for appellant and their effective dates. Based on 

these rates, OWCP was able to calculate the dual benefit that she received from March 1, 2007 

through August 23, 2014 which yielded an overpayment of compensation in the amount of 

$35,876.27. The record includes an overpayment worksheet explaining the overpayment 

calculation.10 

The Board has reviewed OWCP’s calculations of the dual benefits appellant received for 

the period March 1, 2007 through August 23, 2014 and finds that she received dual benefits 

totaling $35,876.27 for this period, thus creating an overpayment in compensation in that 

amount. 

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.”11 Section 10.438 of OWCP regulations provide 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.12 Failure to submit the requested information within 30 days of the request shall 

result in denial of waiver.13 

 9 Supra note 7. 

10 The August 25, 2014 offset worksheet lists the overpaid amounts for particular periods. These sums total 

$35,876.27. The Board notes that the worksheet contains a minor computation error. Computing the FERS offset 

for appropriate periods indicates that the total overpayment is $35,876.27, not $35,876.28. 

 11 5 U.S.C. § 8129. 

 12 Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a 

currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs 

substantially all of his or her current income (including compensation benefits) to meet current or ordinary and 

necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by 

OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. 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. Id. at § 10.437. 

13 20 C.F.R. § 10.438. 
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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.14 Appellant, 

however, had the responsibility to provide financial information to OWCP,15 and did not do so. 

 In its preliminary determination dated September 2, 2014, OWCP clearly explained the 

importance of providing the requested financial information and advised appellant that it would 

deny waiver if she failed to furnish the requested financial information within 30 days. 

Appellant did not submit a completed overpayment questionnaire or otherwise submit financial 

information supporting her income and expenses at any time. As a result, 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. 

While appellant’s representative asserts on appeal that appellant did not understand the 

preliminary determination due to mental illness and failing health, the most recent medical 

evidence of record, a report from Dr. Thein dated July 7, 2014, indicated that, although appellant 

reported financial stress and health concerns, she was alert, with no mania or depression. On 

examination Dr. Thein found her cooperative, with no abnormal thought content. He advised 

that appellant’s insight, judgment, attention, and language were intact. There is no additional 

contemporaneous medical evidence regarding appellant’s mental or physical condition. 

 Consequently, as appellant did not submit the financial information required under 

section 10.438 of OWCP regulations, which was necessary to determine her eligibility for 

waiver, OWCP properly denied waiver of recovery of the overpayment in compensation in the 

amount of $35,876.27. 

LEGAL PRECEDENT -- ISSUE 3 

Section 10.441 of OWCP’s regulations provide that when an overpayment has been made 

to an individual who is entitled to further payments, the individual shall refund to OWCP the 

amount of the overpayment as soon as the error is discovered or his or her attention is called to 

the same. If no refund is made, OWCP shall decrease later payments of compensation, taking 

into account the probable extent of future payments, the rate of compensation, the financial 

circumstances of the individual and any other relevant factors, so as to minimize hardship.16 

ANALYSIS -- ISSUE 3 

Although OWCP provided an overpayment recovery questionnaire with the September 2, 

2014 preliminary finding, appellant did not submit a completed questionnaire or other financial 

 14 Supra note 12. 

15 Supra note 13. 

16 20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006). 
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information that OWCP requested prior to the final October 3, 2014 overpayment decision. The 

overpaid individual is responsible for providing information about income, expenses, and assets 

as specified by OWCP.17 When an individual fails to provide requested financial information, 

OWCP should follow minimum collection guidelines designed to collect the debt promptly and 

in full.18 As appellant did not submit any financial information to OWCP as requested, the 

Board finds that there is no evidence in the record to show that OWCP erred in directing 

recovery at a rate of $118.83 from her continuing compensation. 

CONCLUSION 

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

of $35,876.27, that OWCP properly denied waiver of the overpayment, and that OWCP properly 

required repayment from appellant’s continuing compensation payments. 

ORDER 

IT IS HEREBY ORDERED THAT the October 3, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed, as modified. 

Issued: April 9, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 Id. at §10.438. 

18 Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Overpayment Actions, Chapter 6.200.4(c)(2) (September 1994).