United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.M., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

TACTICAL AIR COMMAND - 28th AIR 

DIVISION, TINKER AIR FORCE BASE, OK, 

Employer 

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Docket No. 16-0898 

Issued: July 13, 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 March 25, 2016 appellant timely appealed the October 8, 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 appellant’s claim. 

ISSUES 

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

amount of $28,825.50 for the period September 1, 2004 through September 20, 2014; 

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

OWCP properly deducted $200.00 every 28 days from appellant’s continuing compensation 

payments. 

                                                       1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

Appellant, a 73-year-old former electrician, injured his lower back in the performance of 

duty on March 4, 1991. He and a coworker were lifting a 4x8 foot sheet of particle board when 

the injury occurred. OWCP initially accepted appellant’s claim for low back strain, but 

subsequently expanded the claim to include herniated nucleus pulposus at L4-5. At the time of 

injury, appellant held a temporary appointment. The employing establishment terminated his 

services effective April 14, 1991, which coincided with the expiration of appellant’s temporary 

appointment. OWCP paid wage-loss compensation for temporary total disability beginning 

April 20, 1991 and placed appellant on the periodic compensation rolls effective 

August 25, 1991. 

After undergoing OWCP-sponsored vocational rehabilitation, appellant accepted private 

sector employment (A&J Industries, Inc.) as an electronics technician effective May 28, 1996. 

In an August 12, 1996 decision, OWCP found that appellant’s recent reemployment with 

A&J Industries fairly and reasonably represented his wage-earning capacity. He had 

successfully performed the position for at least 60 days. Accordingly, OWCP adjusted 

appellant’s wage-loss compensation based on his then-current weekly earnings of $280.00.2

Between February 1997 and July 2014, appellant regularly submitted annual statements 

(Form EN1032) regarding his employment status, volunteer work, dependents, and other Federal 

benefits received. He reported that he continued to work for A&J Industries through 

August 2007. Appellant also reported that he was self-employed from May 1, 2007 through 

July 2014. He consistently denied receiving any benefits from the Office of Personnel 

Management (OPM). Appellant also consistently denied receiving benefits from the Social 

Security Administration (SSA) based on his federal service. The only other federal benefits 

appellant reported receiving were from the Department of Veterans Affairs, which he identified 

as a 10 percent award for a left wrist injury. 

Appellant was born in August 1942. When he reached age 62 in 2004, he was eligible to 

receive age-related social security retirement benefits. The record indicates that appellant was 

subject to Federal Insurance Contributions Act (FICA) withholding while a federal employee.3

On August 13, 2014 OWCP contacted both SSA and OPM regarding benefits appellant 

might be receiving. 

On September 17, 2014 SSA advised OWCP that appellant was entitled to retirement 

benefits, which began in September 2004. SSA provided a breakdown of appellant’s monthly 

SSA benefits that included contributions from his federal service (w/FERS), as well as a monthly 

benefit that excluded his federal service contributions (w/o FERS). Beginning September 2004 

appellant’s total monthly SSA benefit was $970.60. The corresponding monthly amount 

                                                       2

 At the time of his March 4, 1991 employment injury, appellant earned $578.00 per week as an electrician. 

3

 An April 9, 1991 notification of personnel action (Standard Form 50-B) identified appellant’s retirement plan as 

“FICA,” with an August 7, 1980 service computation date. As a temporary employee (Tenure “0”), appellant was 

not eligible for certain employee fringe benefits such as life insurance (FEGLI) and a retirement annuity under the 

Federal Employees’ Retirement System (FERS). 
3

excluding appellant’s federal service contributions was $780.80. SSA provided additional 

calculations for subsequent periods from December 2004 to December 2013. 

On September 29, 2014 OWCP advised appellant that he could not receive FECA wageloss compensation along with SSA retirement benefits attributable to his federal service. It 

explained that this was a prohibited dual benefit, and therefore, his FECA benefits would have to 

be reduced by the amount of SSA benefits attributable to his federal service. OWCP calculated 

the SSA deduction/offset to be $209.91 every 28 days. The offset was effective 

September 21, 2014. 

On October 27, 2014 OPM advised that it was not currently paying appellant any type of 

retirement or disability benefits. 

On October 29, 2014 OWCP issued a preliminary overpayment determination in the 

amount of $28,825.20 for the period September 1, 2004 through September 20, 2014. It 

explained that the overpayment was a result of appellant having received FECA wage-loss 

compensation and social security retirement benefits based on his federal service, which was a 

prohibited dual benefit. Additionally, OWCP advised that appellant was not at fault in creating 

the overpayment. 

 Appellant timely requested a prerecoupment hearing, which the Branch of Hearings & 

Review scheduled for August 6, 2015. He argued that his SSA benefits were unrelated to his 

federal service because as a temporary employee he was not eligible to receive FERS benefits. 

Appellant did not submit a complete overpayment recovery questionnaire (OWCP-20) with 

supporting documentation. At the August 6, 2015 prerecoupment hearing, appellant indicated he 

could repay $200.00 every 28 days from his continuing compensation. 

By decision dated October 8, 2015, the hearing representative finalized OWCP’s 

preliminary determination regarding the fact and amount of the overpayment, as well as its 

finding that appellant was not at fault.4

 Regarding appellant’s request for waiver of recovery, the 

hearing representative noted that OWCP had yet to receive any financial information from 

appellant that would allow for consideration of a waiver. The hearing representative further 

noted that appellant continued to receive FECA wage-loss compensation, and had previously 

expressed an ability to repay $200.00 every 28 days from his continuing compensation 

payments. 

LEGAL PRECEDENT -- ISSUE 1 

A FECA beneficiary may not receive wage-loss compensation concurrently with a 

federal retirement or survivor annuity.5

 To avoid payment of a dual benefit, FECA wage-loss 

compensation benefits shall be reduced by the amount of Social Security Act benefits 

attributable to the employee’s federal service.6

                                                       4

 The hearing representative incorrectly identified the amount of the overpayment as $28,825.50 rather than 

$28,825.20 as initially determined by OWCP. 

5 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a). 

6

 5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d). 
4

ANALYSIS -- ISSUE 1 

Appellant argued that because of his temporary employment status he was not eligible to 

receive retirement benefits under FERS. An April 9, 1991 notification of personnel action 

(Standard Form 50-B) confirms that appellant was a temporary employee. The document also 

identified appellant’s retirement plan as “FICA,” and did not specify additional coverage under 

FERS. While the record supports appellant’s contention that he was ineligible to receive a 

FERS-based retirement annuity, the evidence indicates he was entitled to age-related Social 

Security Act benefits based, in part, on his federal service.7 As such, appellant is not entitled to 

simultaneously receive FECA wage-loss compensation and retirement benefits based on his 

federal service. On September 17, 2014, SSA represented that a portion of appellant’s monthly 

retirement benefit was attributable to his federal service. Consequently, OWCP was obliged to 

offset appellant’s FECA wage-loss compensation by the amount of SSA age-related retirement 

benefits attributable to his federal service.8 

Although the Board finds that the fact of overpayment has been established, the case is 

not in posture for decision with respect to the amount of the overpayment. As noted, the record 

establishes that appellant received age-related Social Security Act retirement benefits, some of 

which were attributable to his federal service. However, the Board is unable to determine how 

OWCP calculated the portion of appellant’s SSA benefits attributable to his federal service. 

Accordingly, the case shall be remanded to OWCP for further development regarding the 

appropriate SSA/FECA offset. 

LEGAL PRECEDENT -- ISSUES 2 & 3 

An individual who is without fault in creating or accepting an overpayment is nonetheless 

subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose 

of FECA or would be against equity and good conscience.9 Recovery of an overpayment will 

defeat the purpose of FECA if such recovery would cause hardship to a current or former 

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

his 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.10 Additionally, 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 in attempting to repay the debt or when an individual, in reliance on such payment or on 

                                                       7

 The “FICA” designation on the April 9, 1991 SF 50-B indicates that the employing establishment made 

contributions for Social Security Act benefits. 

8

 5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d). 

9

 5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437. 

10 20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base 

increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent. 

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

6.200.6a(1)(b) (June 2009). 
5

notice that such payments would be made, relinquished a valuable right or changed his position 

for the worse.11

The individual who received the overpayment is responsible for providing information 

about income, expenses, and assets as specified by OWCP.12 This information is necessary for 

determining whether a waiver of recovery of the overpayment is warranted.13 The information is 

also used to determine an appropriate repayment schedule, if necessary.14 Failure to submit the 

requested information within 30 days of the request shall result in denial of waiver.15

When an overpayment has been made to an individual who is entitled to further 

payments, 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 2 & 3 

The hearing representative agreed with OWCP’s preliminary determination that appellant 

was not at fault in creating the overpayment. However, he denied waiver of recovery because 

appellant did not complete his overpayment recovery questionnaire. The record included 

information regarding appellant’s FECA benefits, SSA benefits, and his income from selfemployment,17 but appellant neglected to provide information regarding his assets, liabilities, and 

expenses. In light of appellant’s failure to provide the requested financial information, the 

hearing representative properly denied waiver of recovery of the overpayment.18 The Board 

further finds that based on appellant’s representations at the prerecoupment hearing, the hearing 

representative properly imposed a repayment schedule of $200.00 every 28 days to be withheld 

from appellant’s ongoing FECA wage-loss compensation. 

CONCLUSION 

 Appellant is not entitled to receive both FECA wage-loss compensation and SSA agerelated retirement benefits based on his prior federal service. SSA represented that appellant’s 

age-related retirement benefits beginning September 1, 2004 were based, in part, on his federal 

service. However, the record does not clearly establish the amount that should have been offset 

for the period September 1, 2004 through September 20, 2014. The Board further finds that 

                                                       11 20 C.F.R. § 10.437(a), (b). 

12 Id. at § 10.438(a). 

13 Id.

14 Id.

15 20 C.F.R. § 10.438(b).

16 Id. at § 10.441(a). 

17 Appellant’s latest CA-1032 noted income from self-employment of $9,300.00 for the period August 1, 2014 

through July 31, 2015. 

18 20 C.F.R. § 10.438(b).
6

appellant is not entitled to a waiver of recovery, and that the hearing representative properly 

deducted $200.00 every 28 days from appellant’s continuing FECA wage-loss compensation.

ORDER 

IT IS HEREBY ORDERED THAT the October 8, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed in part, set aside in part, and remanded for further 

action consistent with this decision. 

Issued: July 13, 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