United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.F., Appellant 

and 

DEPARTMENT OF DEFENSE, NATIONAL 

SECURITY AGENCY, Fort Meade, MD, 

Employer 

__________________________________________ 

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Docket No. 17-0101 

Issued: September 5, 2017 

Appearances: Case Submitted on the Record

Steven J. Dunn, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 19, 2016 appellant, through counsel, filed a timely appeal from an April 25, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUES 

The issues are: (1) whether OWCP properly found that an overpayment of compensation 

in the amount of $76,975.48 was created during the period September 1, 2009 to December 31, 

2014; and (2) whether OWCP abused its discretion by denying waiver of recovery of the 

overpayment. 

FACTUAL HISTORY 

On February 25, 1994 appellant, then a 50-year-old language voice analyst, filed a 

traumatic injury claim (Form CA-1) alleging that she sustained injuries when she slipped and fell 

in the performance of duty on February 18, 1994. OWCP accepted the claim for concussion, 

back and neck sprains, right buttock contusion, and right shoulder rotator cuff sprain. Appellant 

returned to part-time work at the employing establishment and as of October 28, 1996 was 

working six hours per day. By decision dated December 26, 1996, OWCP reduced her 

compensation to reflect her wage-earning capacity based on actual earnings. Appellant 

continued to receive wage-loss compensation based on loss of wage-earning capacity. 

Appellant periodically submitted EN1032 forms that requested information regarding 

receipt of other federal benefits. In an October 8, 2010 form, she noted that she was receiving 

Social Security Administration (SSA) benefits as part of an annuity for federal service. 

Appellant also reported receipt of SSA benefits on EN1032 forms dated October 6, 2011, 

October 24, 2012, October 21, 2013, and October 26, 2014. 

OWCP requested that SSA provide information with respect to appellant’s SSA benefits 

with both Federal Employees Retirement Service (FERS) and without FERS. Appellant 

indicated that she retired from federal employment as of December 31, 2014. She also indicated 

that she was selecting retirement benefits from Office of Personnel Management (OPM) 

effective January 1, 2015.3

OWCP received a March 4, 2015 response from SSA with a dual benefits worksheet 

regarding SSA both with FERS and without FERS. SSA indicated that appellant was entitled to 

retirement benefits effective September 2009. The worksheet provided the SSA rates 

commencing September 2009 until December 2009, and for each year through December 2014. 

On April 20, 2015 OWCP made a preliminary determination that an overpayment of 

compensation was created in the amount of $76,975.48 from September 1, 2009 to 

December 31, 2014. It provided its calculations for each year and found that, based on the SSA 

information provided, an overpayment of compensation was created in the amount of 

$76,975.48. In addition, OWCP found appellant was not at fault in creating the overpayment. 

An overpayment recovery questionnaire (OWCP-20) was provided, and appellant was advised to 

submit relevant financial information within 30 days. 

 3

 By decision dated April 2, 2015, OWCP found an overpayment of compensation was created in the amount of 

$1,764.29 because appellant received compensation through February 7, 2015. That decision is not before the 

Board. 
3

By decision dated June 4, 2015, OWCP finalized its preliminary determination that an 

overpayment of compensation was created in the amount of $76,975.48. It also denied waiver of 

recovery of the overpayment, noting that appellant did not submit financial information. 

A memorandum of telephone call dated June 8, 2015 indicated that appellant reported 

that she did not receive the preliminary determination of overpayment. On June 15, 2015 OWCP 

reissued the preliminary determination that an overpayment of compensation was created in the 

amount of $76,975.48. 

By letter dated July 7, 2015, appellant, through counsel, requested an oral hearing before 

an OWCP hearing representative. A hearing was held on March 7, 2016. Counsel testified at the 

hearing that appellant had been employed in the private sector from 1979 to 1993. 

On April 6, 2016 counsel submitted additional evidence. This evidence included a 

statement as to monthly expenses and documents as to account balances in the federal retirement 

Thrift Savings Plan (TSP). The statements showed approximately $440,000.00 in appellant’s 

TSP account, and a balance over $650,000.00 in her spouse’s account. In addition, an affidavit 

from appellant reported additional assets that included approximately $9,000.00 in savings 

accounts and $250,000.00 in stocks. Additional evidence included an SSA benefits calculator 

and retirement planner. 

In an affidavit appellant asserted that OWCP had never informed her that an offset to her 

compensation was required for receipt of SSA benefits and that she had no knowledge of a FERS 

offset until OWCP notified her of an overpayment in 2015. She stated that, if she had known 

there was an offset, she would have delayed receipt of SSA benefits. Counsel argued that the 

preliminary determination did not explain the calculation of SSA benefits derived from federal 

employment, as opposed to the private sector. Additionally he also argued the issue of 

detrimental reliance, asserting that appellant gave up a valuable right when she elected SSA 

benefits at age 66 rather than wait until she was 70 and receive higher SSA benefits. According 

to counsel, it was against equity and good conscience to require repayment of the overpayment. 

By decision dated April 25, 2016, the hearing representative found that an overpayment 

of compensation was created in the amount of $76,975.48. He denied waiver of recovery of the 

overpayment, finding that appellant had sufficient assets to repay the overpayment, and that there 

had been no detrimental reliance. 

LEGAL PRECEDENT -- ISSUE 1 

5 U.S.C. § 8116(d)(2) requires that compensation benefits be reduced by “the amount of 

any such [SSA] benefits payable that are attributable to federal service.” OWCP’s procedures 

provide that, while SSA benefits are payable concurrently with FECA benefits, 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.4

 It obtains information from SSA on the amount of the 

 4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (June 2009). This 

same section of the manual explains that if social security benefits are paid for disability rather than age, SSA 

benefits paid for disability shall be reduced by “FECA” compensation payable. 
4

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 

hypothetic SSA benefit computed without 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.5 

ANALYSIS -- ISSUE 1 

OWCP found that an overpayment of compensation was created in the amount of 

$76,975.48 from September 1, 2009 through December 31, 2014. The overpayment in this case 

is based on the evidence received from SSA with respect to benefits paid to appellant. The 

record indicates that while appellant was receiving compensation for total disability under 

FECA, she also received SSA age-based retirement benefits. A claimant cannot receive both 

compensation for wage loss and SSA retirement benefits attributable to federal service for the 

same period. The information provided by SSA indicated that appellant did receive age-based 

SSA benefits that were attributable to federal service during the period September 2009 to 

December 2014. Therefore an overpayment of compensation was created. 

To determine the amount of the overpayment, the portion of the SSA benefits that were 

attributable to federal service must be calculated. OWCP received evidence from SSA with 

respect to the specific amount of age-based SSA retirement benefits that were attributable to 

federal service. The SSA provided the SSA rate with FERS, and without FERS for specific 

periods commencing September 2009. For the years 2011 to 2014, there was a change in the 

SSA rate with FERS in December of those years. OWCP calculated the portion of SSA benefits 

attributable to federal service for 28-day periods. For example, effective January 1, 2011 the 

SSA rate with FERS was $1,980.20 per month, with the SSA rate without FERS $856.80, 

resulting in a difference of $1,123.40. The 28-day overpayment was found to be $1,036.90 

based on this evidence. OWCP provided its calculations for each relevant period based on the 

SSA worksheet. No contrary evidence was provided. The Board finds the evidence is sufficient 

to establish that an overpayment of compensation was created in the amount of $76,975.48.6

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(b) of FECA7

 provides: “Adjustment or recovery by the United States may 

not be made when 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.”8

 Since OWCP found appellant to be without fault in the creation of the 

 5

 FECA Bulletin No. 97-09 (issued February 3, 1997). See also P.G., Docket No. 13-589 (issued July 9, 2013). 

6

 When SSA provides a proper calculation of SSA benefits attributable to federal service during a period FECA 

compensation was received, an overpayment is properly found in that amount. See W.C., Docket No. 15-1280 

(issued November 13, 2015). 

7

 5 U.S.C. § 8101 et seq. 

8 Id. at § 8129(b). 
5

overpayment, OWCP may only recover the overpayment if recovery would neither defeat the 

purpose of FECA nor be against equity and good conscience. The guidelines for determining 

whether recovery of an overpayment would defeat the purpose of FECA or would be against 

equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of 

Federal Regulations. 

According to section 10.436, 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.9 For waiver under 

the “defeat the purpose” of FECA standard, appellant must show that she needs substantially all 

of his current income to meet current ordinary and necessary living expenses, and that her assets 

do not exceed the resource base.10 An individual is deemed to need substantially all of her 

current income to meet ordinary and necessary living expenses if monthly income does not 

exceed expenses by more than $50.00.11

Section 10.437 provides that recovery of an overpayment would be against equity and 

good conscience if: (a) the overpaid individual would experience severe financial hardship in 

attempting to repay the debt; (b) the 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. 

ANALYSIS -- ISSUE 2 

In support of her request for waiver of recovery of the overpayment, appellant submitted 

an OWCP-20 and submitted financial documents. The initial question is whether recovery of the 

overpayment would defeat the purpose of FECA. The Board finds that OWCP did not abuse its 

discretion by denying waiver of recovery of the overpayment. 

As discussed above, recovery of an overpayment does not defeat the purpose of FECA if 

a claimant has assets that exceed the $8,000.00 resource base for an individual with a spouse. 

The Board notes that appellant indicated that she had approximately $440,000.00 in her TSP 

retirement account. A claimant’s contributions to TSP and earnings from those contributions are 

considered to be assets which OWCP may consider in determining waiver.12 In addition, 

appellant reported savings account assets of $9,000.00 and stock holdings worth approximately 

 9

 OWCP procedures provide that the 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. Federal (FECA) 

Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009). 

10 See Robert E. Wenholz, 38 ECAB 311 (1986). 

11 Jorge O. Diaz, 51 ECAB 124, 128 (1999); Marlon G. Massey, 49 ECAB 650 (1998); Carroll R. Davis, 46 

ECAB 361, 363 (1994). 

12 C.W., Docket No. 11-1338 (issued December 19, 2011). 
6

$250,000.00. Therefore the evidence indicates that appellant’s assets exceed the resource base 

and recovery would not defeat the purpose of FECA. 

There is no evidence that recovery would be against equity and good conscience. The 

factors considered regarding financial hardship are substantially the same as those for defeat the 

purpose of FECA and, as found above, appellant has sufficient available assets and excess 

income.13 

Moreover, appellant has not shown that she gave up a valuable right or changed her 

position for the worse in reliance on compensation payments. Counsel argues that there was 

detrimental reliance as appellant had given up rights with respect to SSA benefits. He asserts 

that appellant could have declined SSA retirement benefits and waited until she was 70 years of 

age to receive higher monthly benefits, and if she lived long enough would have received more 

in SSA benefits over her lifetime. This speculative argument does not establish detrimental 

reliance.14 Appellant was not deprived of any right to collect SSA benefits due to the receipt of 

compensation. To establish that a valuable right has been relinquished, it must be shown that the 

right was in fact valuable, that it cannot be regained, and that the action was based chiefly or 

solely in reliance on the payments or on the notice of payment.15 The argument that appellant 

possibly would have waited to collect SSA benefits and possibly could have benefited if she 

lived to a certain age is insufficient to establish a valuable right has been relinquished. 

In M.B.,16 the claimant argued that if she had known her compensation benefits would be 

offset by SSA benefits, she would not have stopped working and moved to Florida. The Board 

found there was no detrimental reliance established, noting there is no provision for conjecture 

regarding future income. The Board further noted that the claimant’s arguments would support 

her reliance on the receipt of compensation benefits in general, but did not support her reliance 

on the overpaid amount, which was the relevant inquiry. To establish detrimental reliance, the 

claimant must show that the amount she was overpaid caused her to make a decision, to her 

detriment, that she would not have otherwise made. 

The Board finds the evidence of record does not establish that recovery of the 

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

Therefore OWCP properly denied waiver of recovery of the overpayment in this case. 

On appeal counsel again argues detrimental reliance. He claims that the current case is 

similar to an example of detrimental reliance found in OWCP’s procedures, where a claimant 

resigns his job and withdraws his contributions to his retirement fund based on receipt of 

 13 See James K. Fitzgerald, 51 ECAB 659 (2000). 

14 See M.T., Docket No. 16-0229 (issued May 10, 2016). The Board found that there was no evidence to 

substantiate appellant’s claim of detrimental reliance. Specifically, other than appellant’s own statements there was 

no evidence that appellant chose to retire once she learned of a schedule award. 

15 L.B., Docket No. 12-1202 (issued February 6, 2013). 

16 Docket No. 14-0446 (issued September 8, 2014). 
7

compensation benefits.17 The Board finds the present case is not similar to the cited example. 

Appellant has not lost her job, been unable to find employment, or lost retention rights, as 

discussed in the procedure manual example. Rather, she has speculated that she may have 

delayed selecting SSA benefits had she known she was not entitled to compensation, and may 

have received more in benefits over her lifetime. Appellant has not established that the portion 

of social security benefits she received which constituted the overpayment influenced her 

decision regarding the date of social security retirement.18 The Board finds she has not 

established detrimental reliance in this case. 

CONCLUSION 

The Board finds that OWCP properly found that an overpayment of compensation was 

created in the amount of $76,975.48. The Board further finds that OWCP properly denied 

waiver of recover of the overpayment. 

ORDER 

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

Compensation Programs dated April 25, 2016 is affirmed. 

Issued: September 5, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

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

6.200.6(b) (June 2009). 

18 Supra note 15.