United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

WILFORD HALL MEDICAL CENTER, 

LACKLAND AIR FORCE BASE, TX, Employer 

__________________________________________ 

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Docket No. 16-0742 

Issued: October 14, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 3, 2016 appellant filed a timely appeal from a November 27, 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 this case.2

ISSUES 

The issues are: (1) whether appellant received a $14,997.92 overpayment of 

compensation for the period April 1, 2013 through September 19, 2015, for which she was not at 

fault; (2) whether the overpayment is subject to waiver; and (3) whether OWCP properly 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Boards notes that appellant submitted new evidence on appeal. The Board, however, cannot consider this 

evidence as its review of the case is limited to the evidence of the record which was before OWCP at the time of its 

final decision. 20 C.F.R. § 501.2(c)(1); see Stevens S. Saleh 55 ECAB 169 (2003). 
2

directed recovery of the overpayment by withholding $207.00 from appellant’s continuing 

compensation payments. 

FACTUAL HISTORY 

OWCP accepted that on or before December 18, 1997 appellant, then a 50-year-old 

medical instrument technician, sustained obstructive lung disease due to occupational exposure 

to glutaraldehyde. Appellant stopped work on December 18, 1997 and returned to work shortly 

thereafter with restrictions against chemical exposure. On November 16, 1998 she claimed a 

recurrence of disability (Form CA-2a) commencing October 19, 1998 due to additional chemical 

exposures at work. Appellant stopped work on October 19, 1998 and did not return. 

Appellant received compensation on the daily rolls from October 19, 1998 to 

July 17, 1999. OWCP placed her case on the periodic rolls, effective July 18, 1999. Appellant 

remained under medical treatment for occupationally-related respiratory disease. 

The employing establishment provided a June 12, 1994 Request for Personnel Action 

(Form SF-50) demonstrating that appellant began work in 1986 as a vocational nurse. Appellant 

was covered by the Federal Employees Retirement System (FERS). 

On August 3, 1999 OWCP informed appellant of her obligation to report “any retirement 

income you receive from any Federal agency. This is because a person who receives 

compensation benefits under FECA is not permitted to receive benefits under the Civil Service 

Retirement System or FERS.” It explained that if she was covered under FERS, “OWCP must 

deduct from your compensation entitlement at least part of any [s]ocial [s]ecurity [r]etirement 

benefits to which you are entitled based on age. This is because a portion of FERS benefits is 

included in [s]ocial [s]ecurity retirement benefits. Therefore, advise OWCP immediately upon 

filing for or receiving [s]ocial [s]ecurity [r]etirement benefits.” Appellant signed the form (Form 

EN1049) on August 16, 1999. She executed a direct deposit authorization on August 17, 1999. 

Appellant completed affidavits of earnings and employment (Forms EN1032) annually 

from August 1999 through March 2015.3 She reached age 65 on April 15, 2012, converting the 

Social Security Administration (SSA) disability benefits she received to age-related retirement 

benefits. 

On April 3, 2015 OWCP requested information from the SSA regarding appellant’s SSA 

age-related retirement benefits. It forwarded a form entitled FERS and SSA Dual Benefits 

Calculation, which requested the effective date of her social security benefits, as well as separate 

calculations of the SSA rate with FERS and without FERS. 

On September 8, 2015 SSA provided the requested information, noting the pay rates for 

the following periods with and without FERS: April 1 to November 30, 2013, $665.30 without 

and $1,161.40 with; December 1, 2013 to November 30, 2014, $686.60 without and $1,178.80 

with; and December 1, 2014 through September 19, 2015, $686.60 without and $1,198.80 with. 

 3

 Appellant retired from the employing establishment in early 2003. OWCP adjusted her compensation payments 

to reflect the change in postretirement life insurance premiums. 
3

In an October 6, 2015 memorandum, OWCP calculated that, based on the fiscal 

information provided by SSA on September 8, 2015, a $14,997.92 overpayment of compensation 

was created in appellant’s case for the period April 1, 2013 to September 19, 2015.4

 

By notice dated October 19, 2015, OWCP advised appellant of its preliminary 

determination that she had received a $14,997.92 overpayment of compensation because she 

received FECA benefits simultaneously with FERS retirement payments from April 1, 2013 

through September 19, 2015. It provided a calculation of the overpayment, noting that she was 

without fault in its creation, as she knew or should have known that she was not entitled to the 

duel payments received. OWCP afforded appellant 30 days to contest the fact and amount of 

over payment and to provide financial information. Appellant did not respond. 

By decision dated November 27, 2015, OWCP finalized that appellant had received an 

overpayment of compensation in the amount of $14,997.92 for the period April 1, 2013 through 

September 19, 2015 as she had received FERS retirement benefits simultaneously with FECA 

benefits. It found that she was without fault in the creation of the overpayment. Appellant did 

not contest the finding of overpayment. As she did not submit financial information as 

requested, OWCP was unable to determine whether she needed essentially all of her income to 

meet ordinary and necessary living expenses. Therefore, OWCP determined that collection of 

the overpayment would not defeat the purpose of FECA. It further found that recovery of the 

overpayment would not be against equity and good conscience as appellant did not submit 

evidence of financial hardship, that she relinquished a valuable right, or changed her position for 

the worse based on her compensation payments. OWCP directed recovery of the overpayment 

by deducting $207.00 every 28 days from her continuing compensation payments. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.5 Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been 

made to an individual under this subchapter because of an error of fact or law, adjustment shall 

be made under regulations prescribed by the Secretary of Labor by decreasing later payments to 

which an individual is entitled.6

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 

employee received SSA benefits based on federal service, his or her compensation benefits shall 

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

 OWCP 

 4

 OWCP calculated the overpayment as follows: $3,990.61 from April 1 through November 30, 2013; $6,059.80 

from December 1, 2013 through November 30, 2014; and $4,947.51 from December 1, 2014 through 

September 19, 2015. 

5

 5 U.S.C. § 8102. 

6 Id. at § 8129(a). 

7 Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002). 
4

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 the SSA 

benefits paid on the basis of age and attributable to the employee’s federal service.8

 Section 

8116(d)(2) provides that the receipt of SSA benefits “does not affect the right of the employee to 

compensation for scheduled disabilities specified by section 8107(c) of this title.”9 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained obstructive lung disease due to occupational 

chemical exposures. Appellant’s June 12, 1994 personnel action form (Form SF-50) 

documented her enrollment in the FERS retirement plan. She stopped work on 

October 19, 1998. 

Appellant received FECA wage-loss compensation and SSA age-related retirement 

benefits concurrently from April 1, 2013 to September 19, 2015. OWCP requested, and SSA 

provided, information regarding her applicable SSA rates and their effective dates. Based on 

these rates, it determined that appellant received a prohibited dual benefit from April 1, 2013 to 

September 19, 2015 in the amount of $14,997.92, because she received compensation from 

OWCP and SSA benefits without an appropriate offset. The offset provision of section 

8116(d)(2) applies to SSA benefits that are attributable to federal service. Appellant received 

SSA benefits under the FERS system. As noted, the receipt of concurrent FECA and FERS 

benefits attributable to federal employment is a prohibited dual benefit.10 As she received SSA 

benefits based on her federal service concurrently with disability compensation from OWCP 

without an appropriate offset, she received an overpayment of compensation. 

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

finds that it properly determined that she received dual benefits totaling $14,997.92, creating an 

overpayment of compensation in that amount. The Board notes that, on appeal, she does not 

contest the fact or amount of the overpayment. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(a) of FECA provides that when an overpayment of compensation occurs 

because of an error of fact of law, adjustment or recovery shall be made by decreasing later 

payment to which the individual is entitled.11 The only exception to this requirement that an 

overpayment must be recovered is set forth in section 8129(b). 

 8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997); 

Chapter 2.1000.11(a)(b) (February 1995). 

9

 5 U.S.C. § 8116(d)(2). 

10 B.L., Docket No. 13-1422 (issued June 2, 2014). 

11 5 U.S.C. § 8129(a). 
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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. 

Thus, a finding that appellant was without fault is not sufficient, in and of itself, for 

OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether 

recovery of the overpayment would defeat the purpose of FECA or would be against equity and 

good conscience, pursuant to the guidelines provided in the implementing federal regulations. 

Section 10.436 of the implementing regulations12 provide that recovery of an 

overpayment will defeat the purpose of FECA if recovery would cause hardship to a currently or 

formerly entitled beneficiary such that: (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 the 

resource base of $4,800.00 for an individual.13 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).14 

Recovery of an overpayment is 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.15 Conversion of the 

overpayment into a different form, such as food, consumer goods, real estate, etc., from which 

the claimant derived some benefit, is not to be considered a loss.16 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. This 

information will also be used to determine the repayment schedule, if necessary.17 

ANALYSIS -- ISSUE 2 

OWCP found that appellant was not at fault in creating the overpayment of compensation 

and considered whether she was entitled to waiver of recovery. Waiver is only possible if 

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

 12 20 C.F.R. § 10.436. 

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

6.200.6.a(1)(b) (October 2004). 

14 Id.

15 Id. at § 10.437(b). 

16 See supra note 13, Chapter 6.200.6.b(3) (October 2004). C.P., Docket No. 14-975 (issued 

September 11, 2014). 

17 20 C.F.R. § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004). 
6

order to establish that repayment of the overpayment would defeat the purpose of FECA, 

appellant must show that she requires substantially all of her income to meet current ordinary 

and necessary living expenses and that her assets do not exceed the established limit as 

determined by OWCP’s procedures.18 

OWCP found that as appellant failed to submit any financial information, it could not 

properly consider waiver of recovery of the overpayment. It therefore found that the 

overpayment was not subject to waiver. 

Additionally, the evidence does not demonstrate that repayment of the overpayment 

would be against equity and good conscience. Appellant submitted no argument that she relied 

upon the incorrect payments to her detriment or evidence she would experience severe financial 

hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery 

of the overpayment. 

On appeal, appellant requests waiver of recovery due to financial hardship. As explained 

above, she failed to provide her financial information as requested by OWCP. Appellant did not 

respond to the preliminary determination of overpayment. OWCP therefore properly found that 

the overpayment was not subject to waiver of recovery. 

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. Section 

10.441(a) of the regulations provide. 

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 his 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.19 

ANALYSIS -- ISSUE 3 

OWCP reduced appellant’s future compensation benefits by $207.00 per month, taking 

into account the amount of the compensation, as well as the factors set forth in section 10.441. It 

found that in the absence of any financial information from her, this method of recovery would 

minimize any resulting hardship on her. The Board finds that OWCP properly required 

repayment of the overpayment by deducting $207.00 from appellant’s ongoing compensation 

payments every four weeks. 

 18 Id. at § 10.436. 

19 20 C.F.R. § 10.441. 
7

CONCLUSION 

The Board finds that appellant received a $14,997.92 overpayment of compensation for 

the period April 1, 2013 through September 19, 2015, for which she was not at fault. The Board 

further finds that the overpayment was not subject to waiver of recovery. The Board further 

finds that OWCP properly directed recovery of the overpayment by withholding $207.00 from 

appellant’s continuing compensation payments. 

ORDER 

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

Compensation Programs dated November 27, 2015 is affirmed. 

Issued: October 14, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board