United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, PATCH BARRACKS, 

Stuttgart, Germany, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0076 

Issued: March 10, 2017 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 17, 2016 appellant filed a timely appeal from a September 22, 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 501.3,2 the Board has 

jurisdiction over the merits of the case. 

ISSUES 

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

amount of $10,590.39 because she concurrently received Social Security Administration (SSA) 

benefits while receiving FECA benefits for the period February 1, 2014 through June 27, 2015; 

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

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this 

evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final 

decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012). 
2

OWCP properly required repayment of the overpayment by deducting $200.00 every 28 days 

from appellant’s continuing compensation. 

On appeal appellant asserts that repaying the overpayment would cause financial 

hardship, noting that she became responsible for her husband’s debts after his death in 

October 2015. 

FACTUAL HISTORY 

On March 24, 1986 appellant, then a 38-year-old warehouse worker at the employing 

establishment commissary, filed a traumatic injury claim (Form CA-1) alleging that she injured 

her left knee when she fell from a forklift on March 19, 1986. She transferred to a facility at 

Warner Robins Air Force Base, Georgia, where she worked as a materials handler. OWCP 

accepted acute hemarthrosis and tear of the anterior cruciate ligament (ACL) of the left knee. 

On April 27, 1995 appellant underwent left knee arthroscopic surgery and received wageloss compensation until she returned to modified duty on May 12, 1995. OWCP accepted a 

recurrence of disability on June 3, 1996 and she was placed on the periodic compensation rolls. 

Appellant had surgical reconstruction of the ACL on August 16, 1996, and hardware removal on 

February 5, 1997. 

Appellant was referred for vocational rehabilitation in February 1997. By decision dated 

November 9, 1999, OWCP reduced her compensation based on her capacity to earn wages as a 

telephone answering service operator. 

On March 24, 2000 Dr. Thomas Branch, an attending Board-certified orthopedic surgeon, 

performed authorized total left knee replacement surgery.3 Appellant had additional left knee 

surgery on June 12, 2001, and in April 2003 a second total left knee arthroplasty was authorized, 

but was not performed. She continued treatment with Dr. Branch. On July 29, 2009 Dr. Branch 

performed left knee manipulation under anesthesia. 

OWCP had informed appellant as part of receiving wage-loss compensation on the 

periodic rolls that her FECA compensation could be reduced if she began receiving SSA 

retirement benefits based on her age or her Federal Service. Appellant was advised to notify 

OWCP should she begin receiving SSA retirement benefits. In November 2012, she moved from 

Georgia to Virginia. On October 22, 2014 OWCP requested offset information from SSA. On 

an EN1032 form signed by appellant on March 17, 2015, she reported that she was not receiving 

SSA benefits. 

On April 2, 2015 SSA provided information regarding appellant’s SSA rate with and 

without Federal Employees Retirement System (FERS) benefits, effective February 2014. On 

July 24, 2015 OWCP informed appellant that her FECA benefits were being reduced to reflect 

the contribution from her SSA benefits attributable to her federal employment. It attached 

 3

 In November 1999, appellant elected to receive disability retirement from the Office of Personnel Management 

(OPM). Following the knee replacement surgery, she returned to FECA compensation, until April 30, 2001, when 

she resumed OPM retirement. Appellant returned to FECA compensation on July 1, 2001. 
3

documentation explaining the calculation of the offset.4

 A computer print-out indicated that the 

reduction was effective June 28, 2015. 

Appellant submitted a signed EN1032 form on March 7, 2016, in which she also reported 

that she was not receiving SSA benefits. 

On March 23, 2016 OWCP issued a preliminary finding that a $10,590.39 overpayment 

of compensation had been created. It explained that the overpayment occurred because a portion 

of appellant’s SSA benefits that she had received from February 1, 2014 through June 27, 2015, 

was based on credits earned while working in the Federal Government, and that this portion of 

her SSA benefit was a prohibited dual benefit. OWCP found that she without fault in creating 

the overpayment. The preliminary decision provided an explanation of the calculation of the 

overpayment. Appellant was provided an overpayment action request and an overpayment 

recovery questionnaire (OWCP Form 20). She was informed of the required financial 

documentation and actions she could take and was afforded 30 days to respond. A July 13, 2015 

offset calculation worksheet indicated that the FERS offset for the period February 1, 2014 to 

June 27, 2015 totaled $10,590.39. 

Appellant timely requested a prerecoupment hearing with OWCP’s Branch of Hearings 

and Review. She asserted that she was not at fault and did not have the money to repay the 

overpayment, noting that her husband had recently died.5

 On an overpayment recovery 

questionnaire, appellant indicated that her income consisted of SSA benefits of $1,734.00 

monthly, Veterans benefits of $1,254.19 monthly, and two annuities of $275.00 and $115.94 

monthly, plus her periodic FECA compensation of $1,616.31. She listed cash on hand of 

$1,000.00, savings of $210,314.00, and provided a list of claimed monthly expenses totaling 

$6,762.38. 

At the hearing, held on July 22, 2016, OWCP’s hearing representative explained how the 

overpayment of compensation was created. Appellant testified regarding her income and 

expenses, stating that she had three vehicles and $182,000.00 in savings.6 

By decision dated September 22, 2016, an OWCP hearing representative finalized the 

preliminary overpayment decision, finding an overpayment of compensation in the amount of 

$10,590.39 and, while appellant was not at fault, she was not entitled to waiver of the 

overpayment because her assets exceeded the resource base of $4,800.00 for an individual. He 

set repayment at $200.00 every 28 days from appellant’s ongoing FECA compensation.7

 

 4

 In a second July 24, 2015 letter, OWCP informed appellant of the evidence needed to support a schedule award 

claim. 

5

 An obituary notice dated May 23, 2016 indicated that he died on October 26, 2015. 

6

 Appellant’s FECA compensation was reduced to the 2/3 unaugmented rate effective July 24, 2016. On 

August 15, 2016 she filed a schedule award claim (Form CA-7). 

7

 The Board notes that the hearing representative initially identified the period of the overpayment as April 1, 

2014 through June 27, 2015. However, in discussing his analysis of the case, he correctly identified the period as 

beginning February 1, 2014. 
4

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 

performance of duty.8 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.9

 Section 10.421 of the implementing 

regulations provides that an employee may not receive compensation for total disability 

concurrently with separation pay.10 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.11 When OWCP discovers 

concurrent receipt of benefits, it must declare an overpayment in compensation and give all 

necessary due process rights.12

ANALYSIS -- ISSUE 1 

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

continually since 2001,13 and that she received SSA benefits beginning February 1, 2014. The 

portion of the SSA benefits she earned as a federal employee was part of her FERS retirement 

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

prohibited dual benefit.14 

Appellant’s FECA compensation was not offset until June 28, 2015. The SSA notified 

OWCP of the applicable SSA rates for her and their effective dates. Based on these rates, 

OWCP was able to calculate the dual benefit appellant received from February 1, 2014 through 

June 27, 2015, which yielded an overpayment of compensation in the amount of $10,590.39. 

The record includes an overpayment worksheet explaining the overpayment calculation. 

Appellant has not contested the amount pf payment. 

The Board finds OWCP’s properly calculated the dual benefits for the period February 1, 

2014 through June 27, 2015 to be $10,590.39 for this period, thus creating an overpayment of 

compensation in that amount. 

 8

 5 U.S.C. § 8102(a). 

9 Id., at § 8116(a). 

10 20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007). 

11 FECA Bulletin No. 97-9 (issued February 3, 1997). 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000 (June 2009). 

13 Supra note 3. 

14 Supra note 11. 
5

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.”15 Section 10.438 of OWCP regulations provides that 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. 

Failure to submit the requested information within 30 days of the request shall result in denial of 

waiver.16 

Recovery of an overpayment will defeat the purpose of FECA if such recovery would 

cause hardship to a currently or formerly entitled beneficiary because: (a) 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 (b) the 

beneficiary’s assets do not exceed a specified amount as determined by OWCP from data 

furnished by the Bureau of Labor Statistics. A higher amount is specified for a beneficiary with 

one or more dependents.17 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.18 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.19 

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 

 15 5 U.S.C. § 8129. 

16 20 C.F.R. § 10.438. 

17 Id., at § 10.436(b). 

18 Id., at § 10.437(a). 

19 Id., at § 10.437(b). 
6

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.20

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.21

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

of FECA because her assets exceed the resource base of $4,800.00, as provided in OWCP 

procedures.22 On the overpayment recovery questionnaire and in her hearing testimony, she 

admitted that she had assets of at least $180,000.00. Because appellant has not met the second 

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

FECA, it is unnecessary to consider the first prong of the test, i.e., whether her monthly income 

exceeded her monthly ordinary and necessary expenses by more than $50.00.23 She did not 

establish that she was entitled to waiver of recovery.24 

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.25 OWCP 

procedures provide that 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.26 Donations to 

charitable causes or gratuitous transfers of funds to other individuals are not considered 

relinquishments of valuable rights.27 An individual must show that he or she made a decision he 

 20 Supra note 12 at Chapter 6.200.6.a(1) (October 2009). 

21 20 C.F.R. § 10.436. 

22 Id. See A.W., Docket No. 15-0190 (issued August 10, 2016). 

23 Id. 

24 See K.K., Docket No. 09-0207 (issued October 2, 2009). 

25 20 C.F.R. § 10.437; see W.P., 59 ECAB 514 (2008). 

26 Supra note 12 at Chapter 2.600.b(3) (June 2009). 

27 20 C.F.R. § 10.437(b)(1) (2011); see J.A., Docket No. 09-1678 (issued June 9, 2010). 
7

or she otherwise would not have made in reliance on the overpaid amount and that this decision 

resulted in a loss.28 

Appellant submitted no evidence to show that she gave up a valuable right or changed her 

position for the worse in reliance on anticipated compensation payments. Thus, she has not 

shown that if required to repay the overpayment, she would be in a worse position after 

repayment than if she had never received the overpayment at all. OWCP properly found that 

appellant was not entitled to waiver as recovery would be against equity and good conscience.29 

As appellant failed to establish that 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 in denying waiver of recovery. 

LEGAL PRECEDENT -- ISSUE 3 

OWCP’s implementing regulations provides 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.30

ANALYSIS -- ISSUE 3 

The record supports that, in requiring repayment of the $10,590.39 overpayment by 

deducting $200.00 from appellant’s FECA compensation payments every four weeks, OWCP 

took into consideration the financial information submitted by appellant 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 appellant. Therefore, OWCP properly required repayment of 

the overpayment by deducting $200.00 from appellant’s compensation payments every four 

weeks.31 

 28 Id., at § 10.437(b)(2) (2011); see Wayne G. Rogers, 54 ECAB 482 (2003). 

29 Supra note 20. 

30 20 C.F.R. § 10.441(a). 

31 Id.; see C.P., Docket No. 13-1341 (issued January 6, 2014). 
8

CONCLUSION 

The Board finds that OWCP properly determined that appellant received a $10,590.59 

overpayment of compensation that she was not entitled to waiver, and that OWCP properly 

required recovery of the overpayment by deducting $200.00 every 28 days from her continuing 

compensation payments.

ORDER 

IT IS HEREBY ORDERED THAT the September 22, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 10, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board