United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

MEDICAL COMMAND, Portsmouth, VA, 

Employer 

__________________________________________ 

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Docket No. 16-1390 

Issued: August 1, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 22, 2016 appellant filed a timely appeal from 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 to consider the merits of this case.2

ISSUES 

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

amount of $5,643.15 for the period April 1, 2010 through May 2, 2015; (2) whether OWCP 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that, following the January 20, 2016 decision, OWCP received additional evidence. However, 

the Board may only review evidence that was in the record at the time OWCP issued its final decision. Thus, the 

Board is precluded from reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); M.B., 

Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. 

Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

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

deducted $125.00 every 28 days from appellant’s continuing compensation payments. 

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts and circumstances of the case 

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

On April 28, 1992 appellant, then a 44-year-old diagnostic radiologic technician, filed a 

traumatic injury claim (Form CA-1) alleging a left shoulder and humerus injury when she was 

struck by items falling from the top of a metal cabinet that date.4

 OWCP accepted the claim for 

C5-6 herniated disc, C6 radiculopathy, left shoulder soft tissue trauma, and authorized anterior 

cervical microdiscectomy interbody fusion surgery, which was performed on November 25, 

1992 and C5-6 nerve root decompression surgery, which was performed on July 20, 1993. It 

subsequently expanded acceptance appellant’s claim to include major depressive disorder and 

pain disorder. In a letter dated May 13, 2009, OWCP informed appellant that she was being 

placed on the periodic rolls for temporary total disability effective April 25, 2005. 

Appellant was born in March 1948. When she turned 62 years of age in 2010, she was 

eligible to receive age-related social security retirement benefits. The record indicates that she 

was covered under the Federal Employees Retirement System (FERS) and was subject to Federal 

Insurance Contributions Act (FICA) withholding. 

In a letter dated February 18, 2010, OWCP noted that appellant was approaching 62 years 

of age and advised her that FECA required a reduction in benefits if she received retirement 

benefits from the Social Security Administration (SSA) attributable to federal service. It advised 

her to contact OWCP promptly if she received SSA retirement benefits to avoid an overpayment 

of compensation. 

In an EN1032 form dated April 19, 2010, appellant indicated that she had been assigned a 

Civil Service Annuity (CSA) number by SSA, but had not received SSA retirement benefits 

during the past 15 months. She submitted an amended EN1032 form dated April 26, 2010 noting 

she was in receipt of SSA disability benefits. 

 3

 Docket No. 06-0750 (issued June 5, 2007). In a June 5, 2007 decision, the Board found that OWCP properly 

denied modification of a December 23, 1997 loss of wage-earning capacity determination. The Board also affirmed 

a June 7, 2005 decision which granted appellant a schedule award for three percent right upper extremity permanent 

impairment. The Board, however, set aside an OWCP decision dated November 21, 2005 granting 10 percent 

permanent impairment to her larynx. In Docket No. 08-0689 (issued November 17, 2008), the Board, by order dated 

November 17, 2008, dismissed the appeal as it was found to be a duplicative claim. In Docket No. 08-0688 (issued 

April 6, 2009), the Board found that modification of the December 23, 1997 loss of wage-earning capacity was 

warranted and set aside a December 20, 2007 OWCP decision denying modification. The Board also set aside 

decisions dated October 23 and 31, 2007 denying appellant’s claim for an increased schedule award for permanent 

impairment to her larynx as there remained an unresolved conflict in the medical opinion evidence. 

4

 Appellant resigned from her position effective July 15, 1994, but returned to work as an office automation clerk 

on September 15, 1997. 
3

On July 26, 2010 SSA informed OWCP that the offset was not applicable to SSA 

disability benefits. 

OWCP subsequently received completed EN1032 forms dated April 10, 2011, May 9 

and 10, 2012, May 4, 2013, March 18, 2014, and March 10, 2016 from appellant noting that she 

had been assigned a CSA number, but was currently not receiving retirement benefits. 

SSA, in forms dated May 2 and 4, 2015, provided the amount that appellant had actually 

received in retirement benefits with FERS and also the hypothetical amount that she would have 

received without FERS. 

By letter dated May 13, 2015, OWCP advised appellant that it was adjusting her 

compensation to offset that portion of her SSA retirement benefits attributable to her federal 

service. It informed her that the portion of the SSA benefits earned as a federal employee was 

part of the FERS retirement package and that FECA prohibited the simultaneous receipt of 

workers’ compensation and federal retirement benefits. 

In CA-110 notes dated May 19, 2015, appellant called OWCP contending that she was 

not in receipt of SSA retirement benefits, but rather received SSA disability benefits. OWCP 

informed appellant that SSA provided information that she was receiving SSA retirement 

benefits based on her federal service. If appellant had contrary information from SSA in writing, 

OWCP advised her to submit it. 

On August 10, 2015 OWCP calculated the overpayment by determining the difference 

between appellant’s SSA amount with and without FERS for each period. It then multiplied the 

daily offset amount by the number of days in each period to find a total overpayment of 

$5,643.15. 

For the period April 1, 2010 to November 30, 2011, appellant received a monthly social 

security payment (with FERS) of $1,455.50, but should have received a monthly payment 

(without FERS) of $1,343.10. This was an overpayment of $112.40 per month or $103.75 per 28 

days. For 609 days in that period, the overpayment amount was $2,256.65. For the period 

December 1, 2011 to November 30, 2012, appellant received a monthly social security payment 

(with FERS) of $1,501.80, but should have received a monthly payment (without FERS) of 

$1,391.40. This was an overpayment of $110.40 per month or $101.91 per 28 days. For 366 

days in that period, the overpayment amount was $1,332.08. For the period December 1, 2012 to 

February 28, 2013, appellant received a monthly social security payment (with FERS) of 

$1,532.40, but should have received a monthly payment (without FERS) of $1,415.00. This was 

an overpayment of $117.40 per month or $108.37 per 28 days. For 90 days in that period, the 

overpayment amount was $348.33. For the period March 15

 to November 30, 2014, appellant 

received a monthly social security payment (with FERS) of $1,556.40, but should have received 

a monthly payment (without FERS) of $1,436.20. This was an overpayment of $120.20 per 

month or $110.95 per 28 days. For 275 days in that period, the overpayment amount was 

$1,089.73. For the period December 1, 2014 to May 2, 2015, appellant received a monthly 

social security payment (with FERS) of $1,582.80, but should have received a monthly payment 

 5

 This report appears to overlook the period from March 1, 2013 to March 1, 2014. 
4

(without FERS) of $1,460.60. This was an overpayment of $112.20 per month or $112.80 per 28 

days. For 153 days in that period, the overpayment amount was $616.37. This overpayment 

($2,256.65 + $1332.08 + $348.33 + $1,089.73 + $616.37) was a total of $5,643.15.6

On August 10, 2015 OWCP notified appellant of its preliminary determination that she 

received an overpayment of compensation in the amount of $5,643.15 as she had received 

compensation benefits for the period April 1, 2010 through May 2, 2015 that had not been 

reduced by the portion of her SSA benefits attributable to her federal service. It determined that 

she had begun receiving regular retirement benefits under SSA effective April 1, 2010. OWCP 

found that a portion of the SSA benefits she received due to her federal service, which was part 

of FERS retirement package, was a prohibited dual payment. It further made a preliminary 

determination that appellant was without fault in creating the overpayment. OWCP requested 

that she complete the enclosed overpayment recovery questionnaire and submit supporting 

financial documents. Additionally, it notified appellant that, within 30 days of the date of the 

letter, she could request a telephone conference, a final decision based on the written evidence, 

or a prerecoupment hearing. 

On September 18, 2015 appellant requested a telephone conference with OWCP. She 

stated that she disagreed with the amount of the overpayment and requested waiver of recovery 

as she was not at fault in the creation of the overpayment. Appellant noted that March 2014 was 

the correct date as that was when she reached the retirement age of 66. She also submitted a 

letter dated March 24, 2014 from SSA informing her that she was entitled to monthly retirement 

benefits beginning April 2014. SSA informed appellant that her first payment would be 

$1,451.00, which was the money SSA owed her for March 2014, and that in the future she would 

receive monthly payments of $1,451.00 around the third of each month. 

In a January 20, 2016 memorandum of conference, OWCP noted the overpayment 

occurred because appellant had been receiving SSA retirement benefits from April 1, 2010, but 

that OWCP had received no SSA/FERS documents until May 8, 2015. In response to the 

preliminary overpayment determination, appellant again requested a telephone conference, but 

failed to submit any financial documentation. The telephone conference took place on 

January 20, 2016. According to OWCP, appellant acknowledged that she had been overpaid and 

agreed to a repayment amount of $125.00 from continuing compensation benefits. 

By decision dated January 20, 2016, OWCP finalized its preliminary determination 

regarding the fact and amount of the overpayment, as well as its finding that appellant was not at 

fault. It found that the financial information received, however, was insufficient to warrant 

wavier of recovery of the overpayment. OWCP also imposed a 28-day repayment of $125.00 to 

be deducted for appellant’s continuing compensation payments. 

LEGAL PRECEDENT -- ISSUE 1 

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 

 6

 The actual total is $5,643.16 but OWCP reduced that amount by one cent. 
5

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

reduced by the amount of SSA benefits attributable to her federal service.7

OWCP’s 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.8

 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 in 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. It 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.9

The possibility of dual benefits occurs when the claimant is at least 62 years old, had 

FERS retirement, and is paid benefits based on age by SSA. The offset is that portion of SSA 

benefits attributable to federal service.10 

ANALYSIS -- ISSUE 1 

OWCP accepted C5-6 herniated disc, C6 radiculopathy, left shoulder soft tissue trauma, 

major depressive disorder, and pain disorder, and authorized C5-6 nerve root decompression and 

anterior cervical microdiscectomy interbody fusion surgeries. It found that appellant had been 

on the periodic rolls effective April 25, 2005. Retroactive compensation payments began 

May 10, 2009. 

Relying on information provided by SSA on May 2 and 4, 2015, OWCP determined that 

appellant had been receiving a dual benefit beginning April 1, 2010, the date appellant began 

receiving retirement benefits. SSA provided the total amount appellant received in retirement 

benefits which included FERS and also the hypothetical amount that she would have received 

without the benefits of FERS beginning that date. 

The record supports that appellant received FECA wage-loss compensation continually 

since May 10, 2009 and that she received SSA retirement benefits beginning April 1, 2010. The 

portion of the SSA retirement benefits that was attributable to her federal service through her 

 7

 5 U.S.C. § 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). 

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

9 A.S., Docket No. 16-538 (issued September 14, 2016). 

10 See M.H., Docket No. 13-825 (issued August 1, 2013). 
6

FERS retirement package is prohibited dual benefit while also receiving compensation under 

FECA.11

This dual benefit was not corrected or offset until May 3, 2015. SSA notified OWCP of 

the amount of benefits she received and the amount she should have received for the period 

April 1, 2010 to May 2, 2015. Based on these rates, OWCP was able to calculate the improper 

dual benefit appellant had received for that period which yielded an overpayment of 

compensation in the amount of $5,643.15. The record included an overpayment worksheet 

explaining the overpayment calculation. 

The Board finds that OWCP properly calculated the dual benefits for the period April 1, 

2010 through May 2, 2015 in the amount of $5,643.15 for this period, thus creating an 

overpayment of compensation in that amount. 

Appellant contends on appeal that she did not receive retirement benefits from SSA for 

the period April 1, 2010 through May 2, 2015. The record reflects that SSA verified the payment 

of SSA retirement benefits effective April 1, 2010 and appellant has submitted insufficient 

evidence to dispute the receipt of these benefits. 

LEGAL PRECEDENT -- ISSUE 2 

According to section 10.436,12 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.13 For waiver under 

this standard, a claimant must meet the two-pronged test and show that he or she both needs 

substantially all of his or her current income to meet current ordinary and necessary living 

expenses,

14 and that his or her assets do not exceed the resource base.15 

 

 11 Supra note 8 at Chapter 2.1000.4(e) (February 1995). 

12 20 C.F.R. § 10.436. 

13 OWCP procedures provide that 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. Supra note 8 at 

Chapter 6.200.6(a) (October 2004). 

14 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. Desiderio Martinez, 55 

ECAB 245, 250 (2004). 

15 See supra note 13. W.F., 57 ECAB 705, 708 (2006). 
7

The burden is on the claimant to show that the expenses are reasonable and needed for a 

legitimate purpose.16 OWCP’s regulations provide: 

“(a) The 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 of an overpayment 

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

“(b) Failure to submit the requested information within 30 days of the request 

shall result in denial of waiver and no further request for waiver shall be 

considered until the requested information is furnished.”17

ANALYSIS -- ISSUE 2 

As OWCP found appellant without fault in the creation of the overpayment, waiver of 

recovery 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.18 In 

an August 10, 2015 preliminary notice of overpayment, it advised appellant of its preliminary 

determination and instructed her to complete the enclosed overpayment recovery questionnaire 

and submit supporting financial documents. Additionally, OWCP notified appellant that, within 

30 days of the date of the letter, she could request a telephone conference, a final decision based 

on the written evidence, or a prerecoupment hearing. 

The Board finds that OWCP properly denied waiver of recovery of the overpayment. 

Appellant requested a telephone conference without submitting the overpayment 

recovery questionnaire or supporting financial documents. 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.19

Consequently, as appellant did not submit the financial information it had properly 

requested from her as required under section 10.438 of OWCP’s regulations, which was 

necessary to determine her eligibility for waiver, OWCP properly denied waiver of recovery of 

the overpayment in the amount of $5,643.15.20

 16 Id. 

17 See 20 C.F.R. § 10.438. 

18 See id. at §§ 10.436, 10.437. 

19 See R.L., Docket No. 16-1564 (January 4, 2017). 

20 20 C.F.R. § 10.438(b) provides that: “Failure to submit the requested information within 30 days of the request 

shall result in denial of waiver, and no further request for waiver shall be considered until the requested information 

is furnished.” 
8

LEGAL PRECEDENT -- ISSUE 3 

The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those 

cases where OWCP seeks recovery from continuing compensation under FECA.21 Section 

10.441(a) of the regulations provides: 

“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 her attention is called to 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 any hardship”22

ANALYSIS -- ISSUE 3 

The record reflects that appellant continues to receive wage-loss compensation under 

FECA. When, as in this case, an individual fails to provide requested information on income, 

expenses and assets, OWCP should follow minimum collection guidelines, which provide in 

general that government claims should be collected in full and that, if an installment plan is 

accepted, the installments should be large enough to collect the debt promptly.23 In the 

memorandum of conference, appellant agreed to a deduction of $125.00 from continuing 

benefits. The Board finds that OWCP did not abuse its discretion in following those guidelines 

in this case, where appellant has not submitted complete financial information and agreed to the 

deduction of $125.00 every four weeks. 

CONCLUSION 

The Board finds that OWCP properly found an overpayment of compensation in the 

amount of $5,643.15 for the period April 1, 2010 through May 2, 2015. The Board also finds 

that OWCP did not abuse its discretion in denying waiver of recovery of the overpayment. The 

Board further finds that OWCP properly determined that it would recover the overpayment by 

deducting $125.00 every 28 days from continuing compensation payments. 

 21 Lorenzo Rodriguez, 51 ECAB 295 (2000). 

22 20 C.F.R. § 10.441(a). 

23 Robin D. Calhoun, Docket No. 00-1756 (issued May 21, 2001); Gail M. Roe, 47 ECAB 268 (1995). 
9

ORDER 

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

Compensation Programs dated January 20, 2016 is affirmed. 

Issued: August 1, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board