United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.S., Appellant 

and 

DEPARTMENT OF THE ARMY, CORPS OF 

ENGINEERS, New York, NY, Employer 

__________________________________________ 

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Docket No. 16-0712 

Issued: November 7, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 26, 2016 appellant filed a timely appeal of a January 20, 2016 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. 

ISSUES 

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

overpayment of compensation in the amount of $19,366.70; (2) whether OWCP properly denied 

waiver of recovery of the overpayment; and (3) whether OWCP properly required repayment of 

the overpayment by deducting $700.00 from each of appellant’s continuing compensation 

payments. 

On appeal, appellant asks the Board to consider new evidence regarding her financial 

situation. She notes that at the time of the prerecoupment hearing she was attending to her 

 1

 5 U.S.C. § 8101 et seq. 
2

husband’s health problems and failed to adequately address his medical bills. Appellant also 

notes that, now that he has died, she had to discontinue carrying him as a dependent under 

FECA, which resulted in decreased income under FECA. 

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and circumstances of the case 

as set forth in the Board’s prior decisions are herein incorporated herein by reference. The 

relevant facts are as follows. 

On June 13, 2007 OWCP accepted appellant’s October 16, 2000 claim for anxiety and 

depressive disorder. Appellant received retroactive wage-loss compensation benefits from 

April 24, 2001 and continuing on the periodic rolls. She completed regular EN1032 forms. 

The Social Security Administration (SSA), in a form dated July 31, 2014, informed 

OWCP of the amount of retirement benefits appellant received, with FERS and also the 

hypothetical amount that she would have received without FERS, as of September 1, 2009. 

By letter dated August 27, 2014, OWCP informed appellant that she received an 

overpayment because she had received probative dual benefits under FECA and the SSA. It 

noted that, for the period September 1, 2009 through August 23, 2014, she received dual 

compensation in the amount of $19,366.70. OWCP calculated this overpayment as follows: for 

the period September 1, 2009 through November 30, 2011, a period of 821 days, appellant 

received an overpayment of $7,724.62; for the period December 1, 2011 through January 31, 

2012, a period of 62 days, appellant received an overpayment of $604.40; for February 1, 

through November 30, 2012, a period of 304 days, appellant received an overpayment of 

$3,532.75; for the period December 1, 2012 through November 30, 2013, a period of 365 days, 

appellant received an overpayment of $4,313.82; and for the period December 1, 2013 through 

August 23, 2014, a period of 266 days, appellant received an overpayment in the amount of 

$3,191.12. The total of these overpayments is $19,366.70. 

On July 7, 2015 OWCP issued a preliminary determination that appellant had been 

overpaid in the amount of $19,366.70 because she received dual benefits from OWCP and SSA 

for the period September 1, 2009 through August 23, 2014, without FERS offset amount applied 

to her OWCP benefits.3 It found that she was without fault in creating the overpayment. 

 2

 Docket No. 02-1239 (issued January 16, 2003) (the Board remanded the case as appellant had submitted 

sufficient evidence to raise an uncontroverted inference of causal relationship in appellant’s claim for an emotional 

condition and therefore OWCP was required to further develop the case record); Docket No. 08-1689 (issued 

June 19, 2009) (the Board found that OWCP failed to meet its burden of terminating appellant’s medical and 

disability benefits as of May 31, 2002). 

3

 The Board notes that the cover letter to this determination and the January 20, 2016 decision, contained a 

typographical error by noting the start date of the overpayment as September 1, 2011. The accompanying 

memorandum explaining how the overpayment was calculated noted the correct date of September 1, 2009 and 

explained to appellant how the different periods of overpayment were calculated. As such the typographic error is 

harmless error. The Board further notes that although OWCP calculated $19,366.70 the sum total of the 

overpayments is actually $19,366.71. 
3

Appellant was afforded 30 days to respond to the preliminary determination of an overpayment 

and to provide financial information. 

By letter dated July 14, 2015, appellant, through counsel, requested a prerecoupment 

hearing before an OWCP hearing representative. 

On October 16, 2015 appellant completed the financial forms. The prerecoupment 

hearing was conducted by telephone on November 2, 2015. Appellant alleged that she was 

without fault in the creation of the overpayment. She noted that her husband had at least 67 

strokes and she had been dealing with his health issues. Appellant noted that they had many 

medical bills, but did not have secondary insurance to cover beyond Medicare coverage. At the 

hearing, she discussed her financial forms in detail. Appellant noted that the monthly income 

from SSA was $1,383.90 for her husband and $1,160.30 for herself. She noted that she received 

$2,079.00 every 28 days under FECA. Appellant noted that they received $1,400.00 monthly in 

rental income. With regard to expenses, she noted that mortgage was $952.72 monthly (which 

included property tax), food was $450.00 per month, and clothing was $75.00 per month. 

Appellant noted utilities of $832.00 monthly for the multiple properties and $1,818.00 for 

miscellaneous household expenses, medical, dental, automobile, and other transportation costs. 

She noted that she paid $80.00 to $100.00 a month on her American Express Card, $100.00 on 

Home Depot, and $50.00 to $100.00 on Sam’s Club. Appellant paid a mortgage on her one 

rental property of $944.64 and for her second rental property $512.55 in a home equity loan. In 

a supplemental statement, she noted that her monthly expenses including mortgage for her 

primary residence, with taxes was $925.72, electricity was $202.00, gas was $90.00, house 

telephone/wireless/cable was $283.00, and water was $60.00. 

Regarding assets, appellant testified that she owned two rental properties valued at 

$80,000.00 and $125,000.00, she had cash on hand of less than $200.00, $19,000.00 in a 

checking account, and $376.00 in savings. 

By decision dated January 20, 2016, OWCP finalized the determination that appellant 

received an overpayment of compensation in the amount of $19,366.70. It also determined that 

although she was not at fault in the creation of the overpayment, she was not entitled to a waiver 

of recovery of the overpayment as repayment would not defeat the purpose of FECA or be 

against equity and good conscience. Finally, the hearing representative related that the 

overpayment would be collected by deducting $700.00 from each of appellant’s continuing 

compensation payments. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8129(a) of FECA provides that, 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.4

 4

 5 U.S.C. § 8129(a). 
4

Section 8116(d) of FECA requires that compensation benefits be reduced by the portion 

of SSA benefits based on age or death that are attributable to federal service and that, if an 

employee receives SSA benefits based on federal service, his or her compensation benefits shall 

be reduced by the amount of SSA benefits attributable to his or her federal service.5

OWCP procedures provide that, while SSA benefits are payable concurrently with FECA 

benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by 

SSA benefits paid on the basis of age and attributable to the employee’s federal service.6

 The 

offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as 

follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA 

on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits. 

SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA 

will also provide a hypothetical SSA benefit computed without the FERS covered earnings. 

OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount 

of benefits which are attributable to federal service and that amount will be deducted from FECA 

benefits to obtain the amount of compensation payable.7

ANALYSIS -- ISSUE 1 

Appellant received both wage-loss compensation under FECA and SSA retirement 

benefits from September 1, 2009 through August 23, 2014. As previously noted, the portion of 

the SSA benefits she received as a federal employee as part of her FERS retirement package 

concurrently with the benefits she received under FECA is a prohibited dual benefit.8

 OWCP 

requested and SSA provided information regarding appellant’s applicable SSA rates and their 

effective dates. Based on these rates, it determined that the prohibited dual benefits she received 

from September 1, 2009 through August 23, 2014 created an overpayment of compensation in 

the amount of $19,366.70.9 

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

September 1, 2009 through August 23, 2014 and finds that OWCP properly determined that 

appellant received dual benefits totaling $19,366.70 for this period, thus creating an overpayment 

of compensation in that amount. 

 5 Id. at § 8116(d). See D.S., Docket No. 12-689 (issued October 10, 2012); G.B., Docket No. 11-1568 (issued 

February 15, 2012); see also Janet K. George (Angelos George), 54 ECAB 201 (2002). 

6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits Chapter 2.1000.4(a) (February 1995); 

Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995). OWCP does not require an election 

between FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See 

also R.C., Docket No. 09-2131 (issued April 2, 2010). 

7

 FECA Bulletin No. 97-09 (issued February 3, 1997). 

8 See P.G., Docket No. 13-589 (issued July 9, 2013); id. 

9 See C.N., Docket No. 16-0134 (issued March 8, 2016). 
5

LEGAL PRECEDENT -- ISSUE 2 

If OWCP finds that the recipient of an overpayment was not at fault, repayment will still 

be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of 

FECA; or (2) adjustment or recovery of the overpayment would be against equity and good 

conscience.10

Recovery will defeat the purpose of FECA if both: (a) the individual from whom 

recovery is sought needs substantially all of his current income (including periodic benefits 

under FECA) to meet current ordinary and necessary living expenses; and (b) the individual’s 

assets do not exceed the resource base (including but not limited to cash, the value of stocks, 

bonds, savings accounts, and mutual funds) of $4,800.00 for an individual or $8,000.00 for an 

individual with a spouse or one dependent, plus $960.00 for each additional dependent. The first 

$4,800.00 or more, depending on the number of claimant’s dependents, is also exempted from 

recoupment as a necessary emergency resource. If an individual has current income or assets in 

excess of the allowable amount, a reasonable repayment schedule can be established over a 

reasonable, specified period of time. It is the individual’s burden to submit evidence to show 

that recovery of the overpayment would cause the degree of financial hardship sufficient to 

justify waiver.11 An individual is deemed to need substantially all of his or her income to meet 

current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00.12 

Recovery of an overpayment is considered to be against equity and good conscience 

when any individual who received an overpayment would experience severe financial hardship 

in attempting to repay the debt.13 Recovery of an overpayment is also considered to be against 

equity and good conscience when any 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.

14 

ANALYSIS -- ISSUE 2 

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.15 

 10 20 C.F.R. § 10.434. See 5 U.S.C. § 8129(b). 

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

6.200.6(a) (October 2004). See Miguel A. Muniz, 54 ECAB 217 (2002); id. at §§ 10.436 and 10.437. 

12 Sherry A. Hunt, 49 ECAB 467, 473 (1998). 

13 20 C.F.R. § 10.437(a). 

14 Id. at § 10.437(b). 

15 Id. 
6

The hearing representative determined that appellant’s income exceeded her debt by 

$727.20 per month. He noted that she had income of approximately $6,022.20 per month 

($2,543.20 SSA benefits, $2,079.00 in FECA benefits, and $1,400.00 rental income). The 

hearing representative listed appellant’s expenses as $5,295.00 per month, which included 

$2,120.00 for rent/mortgage including property taxes; $450.00 for food; $75.00 for clothing; 

$832.00 for utilities; and other expenses of $1,818.00 (appellant had large medical expenses due 

to her husband having numerous strokes). As this leaves her with a surplus of $727.20, the 

Board finds that she is not entitled to waiver of recovery of the overpayment as she did not need 

substantially all of her income to meet current ordinary and necessary expenses.16 The Board 

also notes that appellant’s assets, which include $19,000.00 in a checking account, exceed the 

resource base.17 

The Board therefore finds that OWCP properly concluded that recovery of the 

overpayment would not cause financial hardship to appellant and thus defeat the purpose of 

FECA. Moreover, as appellant made no argument that she gave up a valuable right or changed 

her position for the worse in reliance on the overpaid compensation, OWCP properly determined 

that recovery would not be against equity and good conscience. OWCP properly denied waiver 

of recovery of the overpayment. 

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.18

ANALYSIS -- ISSUE 3 

The hearing representative required repayment of the $19,366.70 overpayment by 

deducting $700.00 from appellant’s continuing compensation payments every four weeks. The 

Board finds that OWCP abused its discretion in setting the amount of recovery of the 

overpayment because there was no discussion of the relevant factors found in section 10.441 of 

the implementing federal regulations nor did the hearing representative apply the factors to her 

specific financial circumstances.19 The hearing representative simply declared, after denying 

 16 See R.M., Docket No. 07-1066 (issued February 6, 2009). 

17 Supra note 11. 

18 The Board has jurisdiction to review the issue of recovery of an overpayment in those cases where OWCP 

seeks recovery from continuing compensation benefits. See Desiderio Martinez, 55 ECAB 245, 251 (2004); see 

also J.M., Docket No. 10-1913 (issued July 11, 2011). 

19 Id. See also L.M., Docket No. 12-405 (issued October 1, 2012). 
7

waiver of recovery of the overpayment, that OWCP should commence deduction from 

appellant’s continuing payments in the amount of $700.00.20 

The Board will set aside the January 20, 2016 finding with respect to the issue of 

recovery only. On remand, OWCP should evaluate the factors under section 10.441 and provide 

justification for determining the recovery amount. Following any necessary further 

development, it shall issue a de novo decision on that aspect of appellant’s claim. 

CONCLUSION 

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

of compensation in the amount of $19,366.70 and properly denied waiver of recovery of the 

overpayment. However, the Board finds that OWCP abused its discretion with regard to 

determining the amount of recovery. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated January 20, 2016 is affirmed in part and set aside in part and 

remanded to OWCP for proceedings consistent with this opinion of the Board. 

Issued: November 7, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 20 The Board notes that it cannot consider any new financial information submitted by appellant after the 

January 20, 2016 decision, as the Board’s review is limited to evidence in the case record at the time OWCP made 

the decision over which the Board has jurisdiction. See 20 C.F.R. § 501.2(c)(1).