United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Denver, CO, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1462 

Issued: February 5, 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 June 29, 2015 appellant filed a timely appeal of a January 29, 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 to 

consider the merits of the case. 

ISSUES 

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

amount of $8,974.23 for the period August 1, 2001 through December 1, 2012 as offset for the 

federal employment portion of his social security retirement benefits was not made to his 

compensation benefits for which he was not at fault; (2) whether appellant is entitled to waiver of 

recovery of the overpayment; and (3) whether OWCP properly determined recovery of the 

overpayment in the amount of $240.00 from appellant’s continuing compensation payments. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 8, 1988 appellant, then a 52-year-old food service worker, filed a traumatic 

injury claim (Form CA-1) alleging that he slipped and hit his chest on the edge of the table top 

railing on that date bruising his ribs. He filed a second Form CA-1 on March 23, 1989 alleging 

that he sustained a laceration of his left hand when an elevator door trapped his hand with a cart. 

Appellant filed a third Form CA-1 on September 8, 1989 due to lifting trays on that date with 

resulting left elbow pain. OWCP accepted his claims for brachial plexus lesions, synovitis, and 

tenosynovitis on October 26, 1989 and left ulnar irritation on January 11, 1990. On February 27, 

1991 it reduced appellant’s compensation benefits based on his capacity to earn wages as a selfservice gas station attendant. 

In a letter dated June 25, 1992, OWCP provided appellant with his rate of compensation 

and informed him that he was not entitled to receive benefits from both OWCP and the Office of 

Personnel Management. It further noted that his FECA benefits would be reduced by Social 

Security Act (SSA) benefits paid on the basis of age and attributable to his federal service. On 

August 23, 1992 appellant elected to receive FECA benefits. OWCP granted him a schedule 

award for five percent permanent impairment of his left upper extremity on January 27, 1992. 

In a decision dated September 13, 2000, OWCP waived an overpayment in the amount of 

$6,121.14 created by the death of appellant’s dependent spouse. 

In a letter dated July 18, 2001, appellant informed OWCP that he would be turning 65 

years old on August 11, 2001 and requested information regarding his change in compensation 

status. He reported receiving SSA disability benefits on Form CA-1032’s from September 15, 

2000 through August 21, 2013. In a letter dated December 3, 2002, OWCP provided the 

regulation governing dual benefits and noted that SSA benefits may need to be offset. 

In a letter dated October 30, 2013, OWCP informed appellant that he had been receiving 

SSA dual benefits. It noted that the portion of the SSA benefits earned as a federal employee 

was part of the Federal Employees Retirement System (FERS) retirement package and that 

receipt of FECA benefits and federal retirement benefits at the same time was a prohibited dual 

benefit. OWCP asserted that the SSA benefits which were attributable to appellant’s federal 

service must be adjusted. It indicated that his four-week compensation amount would be 

adjusted in the amount of $64.06. 

On December 5, 2013 OWCP provided appellant with a preliminary determination that 

he had received an overpayment of compensation in the amount of $8,974.23 for the period 

August 1, 2001 through October 19, 2013, because his compensation benefits were not reduced 

for the portion of his SSA retirement benefit earned while in federal service.2

 It found that he 

was without fault in the creation of the overpayment. OWCP included calculations of the 

overpayment and noted that appellant had consistently reported his SSA benefits. It provided 

him with an overpayment recovery questionnaire and informed him of his appeal rights, noting 

that he had 30 days to request a prerecoupment hearing before a representative of the Branch of 

 2

 The calculations provided with the preliminary finding actually indicate that the overpayment was calculated 

from August 2, 2001 to December 1, 2012. 
3

Hearings and Review, that he could request a telephone conference, or that he could request a 

final decision from the district office. OWCP also provided appellant with an appeals form to 

complete and submit. 

Appellant requested a prerecoupment hearing on a form received by the Branch of 

Hearings and Review on January 27, 2014. The envelope indicated that the postmark was 

January 22, 2014. Appellant provided arguments in a narrative statement dated 

January 20, 2014. 

Appellant also submitted an overpayment recovery questionnaire and additional financial 

documents. He listed total household income of $4,161.00 consisting of SSA benefits of 

$1,090.00 and his wife’s SSA benefits of $1,682.00, Supplemental Security Income of $1,220.00 

and his wife’s pension of $169.00. Appellant did not include his monthly FECA benefits in his 

income calculation. He described his monthly expenses of mortgage $1,418.00, food $400.00, 

clothing $100.00, utilities $493.00, and other expenses of $700.00 per month. In a separate 

statement, appellant detailed the $700.00 per month as including $200.00 a month for gasoline, 

$24.00 for car maintenance, $474.00 for his over-the-counter medication and special foods. He 

also listed monthly credit card payments of $261.62, $25.00, $65.00, $129.00, and $163.00. 

Appellant listed monthly debts of $3,754.00 on the form. He further indicated that he had 

additional medical expenses and averaged medical costs for his wife and himself over three years 

and reached an amount of $150.00 per month. Appellant indicated that he had total monthly 

expenses of $4,290.00, but the total expenses listed reach only $3,904.00. He provided lists of 

medications purchased from January 1, 2001 through December 31, 2013. 

By decision dated April 14, 2014, the Branch of Hearings and Review denied appellant’s 

request for a prerecoupment hearing as untimely. The Board affirmed this decision on 

October 7, 2014, determining that OWCP properly denied his request for a prerecoupment 

hearing as untimely filed.3

On January 29, 2015 OWCP issued a final decision determining that appellant had 

received an overpayment of compensation in the amount of $8,974.23, for the period August 1, 

2001 to December 1, 2012, for which he was not at fault. It noted that he received FECA 

compensation in the amount of $1,185.08 per month for a total household income of $5,346.08. 

OWCP determined to collect the overpayment through withholding $240.00 from appellant’s 

continuing compensation payments beginning February 8, 2015. It noted that he had submitted 

an unsigned overpayment recovery questionnaire (OWCP-20) with no corroborating 

documentation of most expenses. OWCP found that appellant had monthly household income of 

$5,346.08 and monthly expenses of $3,790.62. It further found that he had assets in the amount 

of $1,197.00. OWCP determined that appellant was not entitled to waiver as recovery would not 

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

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 

 3

 Docket No. 14-1432 (issued October 7, 2014). 
4

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

ANALYSIS -- ISSUE 1 

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

1988 and that he received SSA retirement benefits beginning on August 1, 2001. The portion of 

the SSA benefits he earned as a federal employee was part of his FERS retirement package, and 

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

dual benefit. Appellant’s FECA compensation was not offset until October 19, 2013. The SSA 

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

rates, OWCP was able to calculate the dual benefit appellant received from August 1, 2001 

through December 1, 2012. This yielded an overpayment of compensation in the amount of 

$8,974.23. The record includes an overpayment worksheet explaining the overpayment 

calculation. 

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

the period August 1, 2001 through December 1, 2012 and finds that he received dual benefits 

totaling $8,974.23. 

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.9

 Waiver of an overpayment is not permitted unless the claimant is without 

fault in creating the overpayment.10 

 4

 5 U.S.C. § 8102(a). 

5 Id. at § 8116(a). 

6

 20 C.F.R. § 10.421(d); see B.R., Docket No. 15-1247 (issued October 26, 2015); 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). 

9

 5 U.S.C. § 8129. 

10 Steven R. Cofrancesco, 57 ECAB 662 (2006). 
5

Section 10.433(a) of OWCP regulations provide that OWCP may consider waiving an 

overpayment only if the individual to whom it was made was not at fault in accepting or creating 

the overpayment.11 According to 20 C.F.R. § 10.436, recovery of an overpayment will defeat the 

purpose of FECA if such recovery would cause hardship to a currently or formerly entitled 

beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of 

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

necessary living expenses; and the beneficiary’s assets do not exceed a specified amount as 

determined by OWCP from data furnished by the Bureau of Labor Statistics.12 Recovery of an 

overpayment is considered to be against equity and good conscience under section § 10.437 of 

OWCP regulations 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 

OWCP procedures provide that recovery of an overpayment will defeat the purpose of 

FECA if recovery would cause hardship by depriving a presently or formerly entitled beneficiary 

of income and resources needed for ordinary and necessary living expenses under the criteria set 

out in this section. Recovery would defeat the purpose of FECA if both the individual from 

whom recovery is sought needed substantially all of his or her current income (including FECA 

periodic benefits) to meet current ordinary and necessary living expense, and if the individual’s 

assets did not exceed the resource base 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. An 

individual is deemed to need substantially all of his or her current income to meet current 

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

more than $50.00. In other words, the amount of monthly funds available for debt repayment is 

the difference between current income and adjusted living expenses (i.e., ordinary and necessary 

living expenses plus $50.00). If an individual has disposable 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.15 

 11 20 C.F.R. § 10.433(a). 

12 Id. at § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet current 

and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. 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. See Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004); B.F., Docket No. 13-785 (issued 

September 20, 2013). 

13 Id. at § 10.437(a). 

14 Id. at § 10.437(b). 

15 B.R., supra note 6. 
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. The Board finds 

that OWCP did not abuse its discretion by refusing to waive recovery of the overpayment of 

compensation. 

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because his income exceeds his monthly expenses by more than $50.00 a month. He 

provided an overpayment recovery questionnaire and listed monthly income of $5,346.08, 

including his FECA benefits, and monthly expenses of $3,904.00. Appellant’s income exceeds 

his largely unsubstantiated expenses by $1,442.08 a month. Because he has not met the first 

prong of the two-prong test of whether recovery of the overpayment would defeat the purpose of 

FECA, it is not necessary to consider the second prong of the test, i.e., whether he has more than 

$8,000.00 in assets. 

Appellant generally contends on appeal that recovery of the overpayment would create a 

financial hardship and thus be against equity and good conscience. As described above, the 

record does not support this contention. 

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. Appellant has not 

alleged that he gave up a valuable right or changed his position for the worse and has not 

established that recovery would be against equity and good conscience. 

LEGAL PRECEDENT -- ISSUE 3 

OWCP’s implementing regulations provide that, if an overpayment of compensation has 

been made to an individual entitled to further payments and 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 any hardship.16

ANALYSIS -- ISSUE 3 

The record supports that, in requiring repayment of the $8,974.23 overpayment by 

deducting $240.00 from appellant’s compensation payments every four weeks, OWCP took into 

consideration the financial information submitted by him resulting in a monthly surplus of 

$1,442.08 as well as the factors set forth in section 10.441(a) of its regulations and found that 

this method of recovery would minimize any resulting hardship on him. Therefore, it properly 

required repayment of the overpayment by deducting $240.00 from his compensation payments 

every four weeks. 

 16 20 C.F.R. § 10.441(a). 
7

CONCLUSION 

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

of $8,974.23 for the period August 1, 2001 through December 1, 2012 as offset for the federal 

employment portion of his social security retirement benefits was not made to his compensation 

benefits for which he was not at fault. The Board further finds that he is not entitled to waiver of 

recovery of the overpayment. The Board also finds that OWCP properly determined collection 

of the overpayment in the amount of $240.00 from appellant’s continuing compensation 

payments was appropriate. 

ORDER 

IT IS HEREBY ORDERED THAT the January 29, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 5, 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