United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Atkinson, NH, Employer

__________________________________________

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Docket No. 18-1666

Issued: April 26, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 4, 2018 appellant filed a timely appeal from a March 8, 2018 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 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 the case.3

 

1 Appellant timely requested oral argument pursuant to section 501.5(b) of Board’s Rules of Procedure. 20 C.F.R. 

§ 501.5(b). By order dated February 26, 2019, the Board exercised its discretion and denied the request, finding that 

the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying Request 

for Oral Argument, Docket No. 18-1666 (issued February 26, 2019).

2 5 U.S.C. § 8101 et seq. 

3 The Board notes that, following the March 8, 2018 decision, OWCP received additional evidence. Appellant also 

submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review 

of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence 

not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, 

the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. 
2

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $31,461.65 because she concurrently received 

Social Security Administration (SSA) benefits while also receiving FECA benefits for the period 

May 1, 2014 through July 22, 2017; (2) whether it properly denied waiver of recovery of the 

overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting 

$300.00 every 28 days from appellant’s continuing FECA compensation benefits.

FACTUAL HISTORY

On February 12, 2005 appellant, then a 57-year-old part-time flexible clerk, filed a 

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

and fell on ice while in the performance of duty. OWCP accepted right shoulder contusion and 

sprain, right knee sprain, aggravation of right knee osteoarthritis, and low back strain. On 

October 26, 2005 appellant underwent an authorized right total knee replacement surgery. OWCP 

paid appellant intermittent wage-loss compensation on the supplemental rolls as of April 23, 2005. 

Appellant retired from the employing establishment on February 28, 2013 and received 

compensation on the periodic rolls as of June 1, 2014.

OWCP forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits 

calculation form to SSA on November 3, 2015. SSA returned the form on November 7, 2015, 

noting that appellant received SSA retirement benefits beginning in May 2014. It indicated that,

beginning in May 2014, appellant’s SSA rate with FERS was $1,452.20 and without FERS 

$654.30 and, beginning in December 2014 and December 2015, the SSA rate with FERS was 

$1,476.80 and without FERS $665.40.

OWCP requested updated dual benefits information from SSA on November 25, 2016. 

SSA returned the form on June 23, 2017. It noted that, beginning in December 2016, the SSA rate 

with FERS was $1,481.20 and without FERS $667.30.

By letter dated August 2, 2017, OWCP notified appellant that, based on information 

provided by SSA regarding the amount of her SSA benefit that was attributable to federal service, 

her FECA wage-loss compensation had been adjusted. The record contains a FERS offset 

calculation noting a total overpayment of compensation in the amount of $31,461.65.

On August 23, 2017 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $31,461.65 had been created. It explained that the overpayment 

occurred because a portion of appellant’s SSA benefit that she received from May 1, 2014 through

July 22, 2017 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 her without fault in the 

creation of the overpayment and provided an overpayment action request form and an overpayment 

recovery questionnaire (Form OWCP-20). It informed appellant that, in order for it to consider 

the question of waiver or to determine a reasonable method for collection, she must provide a 

completed Form OWCP-20, and attach supporting financial documentation, including copies of 

income tax returns, bank statements, bills, canceled checks, pay slips, and any other records
3

supporting claimed income and expenses. OWCP notified her that failure to submit the requested 

information within 30 days would result in the denial of waiver.

On October 6, 2017 appellant requested a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review. She submitted a completed overpayment recovery 

questionnaire in which she listed her expenses and her income and assets in excess of $200,000.00. 

Appellant enclosed copies of tax returns, bank and brokerage statements, a Thrift Savings Plan 

statement, and invoices for real estate taxes, pharmacy, grocery, dental services, automobile repairs 

and maintenance, utilities, insurance, credit cards, DirectTV, landscaping and snow removal, 

furniture, and a kitchen remodeling estimate.

During the hearing, held on February 5, 2018, counsel argued that appellant relied on the 

overpaid compensation by making capital improvements on her home. Appellant testified that the 

improvements to her home were to ensure that it kept fair market value. She described her 

husband’s medical condition, noting that his treatment required additional travel and expenses. 

Appellant also indicated that he had received a class action settlement for bladder cancer. The 

hearing representative advised appellant that, based on her assets, waiver was inapplicable, and 

inquired of her what amount would be workable for repayment. Appellant did not provide an 

amount. Following the hearing, she submitted correspondence and written information regarding 

her expenses. Appellant maintained that it would be a hardship to repay the overpayment.

By decision dated March 8, 2018, an OWCP hearing representative finalized the August 8,

2017 preliminary overpayment determination, finding that an overpayment of compensation in the 

amount of $31,461.65 had been created. She explained that the overpayment occurred because a 

portion of appellant’s SSA benefits that she received from May 2, 2014 through July 22, 2017 was 

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

benefit was a prohibited dual benefit.4 The hearing representative found appellant without fault in 

the creation of the overpayment, but denied waiver of recovery as there was no evidence to support 

that recovery would be against good conscious or defeat the purpose of FECA. She noted that 

appellant had a total monthly income of $3,809.65 and, while appellant reported expenses of 

$3,945.71, the hearing representative found that many reported expenses were nonessential. The 

hearing representative further found that appellant’s assets of over $200,000.00 were of a sufficient 

degree such that waiver could not be considered. She noted that appellant did not respond with a 

preferred amount of recovery. Therefore, recovery was required by deducting $300.00 each 28-

day period from appellant’s continuing FECA compensation benefits.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) 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.5 Section 8116 limits the right of an employee to receive compensation: 

 

4 The Board notes that the March 8, 2018 decision contains a typographical error. It noted that the period of 

overpayment was through July 23, 2017, whereas the correct date is through July 22, 2017.

5 5 U.S.C. § 8102(a).
4

While an employee is receiving compensation, he or she may not receive salary, pay, or 

remuneration of any type from the United States.6 

Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount 

of compensation by the amount of any SSA benefits that are attributable to federal service of the 

employee.7 FECA Bulletin No. 97-09 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.8 

Section 404.310 of SSA’s regulations provides that entitlement to SSA compensation 

begins at 62 years.9 Section 404.409 of SSA’s regulations provides that for individuals born from 

1943 to 1954, full retirement age is 66 years.10 

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation in the amount of 

$31,461.65.

OWCP found that an overpayment of compensation was created for the period May 1, 2014 

through July 22, 2017. The overpayment was 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 concurrent FECA wage-loss compensation and SSA 

retirement benefits attributable to federal service for the same period.11 The information provided 

by SSA confirmed that appellant received age-based SSA benefits that were attributable to federal 

service during the period May 1, 2014 through July 22, 2017. Therefore, the Board finds that 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. SSA provided the SSA rate with FERS and without FERS, for specific periods from 

May 2014 through July 2017. OWCP provided its calculations for each relevant period based on 

the SSA worksheets. No contrary evidence was provided. The Board has reviewed OWCP’s 

 

6

Id. at § 8116.

7 20 C.F.R. § 10.421(d).

8 FECA Bulletin No. 97-09 (issued February 3, 1997).

9 20 C.F.R. § 404.310.

10 Id. at § 404.409.

11 Supra notes 9 and 10.
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calculation of benefits received by appellant for the period May 1, 2014 through July 22, 2017 and 

finds that an overpayment of compensation in the amount of $31,461.65 was created.12

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment of 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.”

13

 Section 10.438 of OWCP’s 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 

on 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.14

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 OWCP’s regulations.15

Section 10.436 provides that 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.16 For waiver under 

the defeat the purpose of FECA standard, appellant must show that he or she needs substantially 

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

assets do not exceed the resource base.17 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 $50.00.18

OWCP procedures in effect at the time of the March 8, 2018 decision19 provide that the 

assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual 

 

12 See M.B., Docket No. 18-1101 (issued January 17, 2019).

 

13 5 U.S.C. § 8129.

14 20 C.F.R. § 10.438.

15 Id. at §§ 10.434-10.437.

16 Id. at. § 10.436.

17 Id. 

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

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

19 The procedures were revised in September 2018.
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with a spouse or dependent plus $960.00 for each additional dependent.20 An individual’s liquid 

assets include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual 

funds, and certificate of deposits. Nonliquid assets include, but are not limited to, the fair market 

value of an owner’s equity in property such as a camper, boat, second home, and furnishings/

supplies.21

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.22 OWCP’s 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.23 Donations to charitable causes or 

gratuitous transfers of funds to other individuals are not considered relinquishments of valuable 

rights.24 An individual must show that he or she made a decision he or she otherwise would not 

have made in reliance on the overpaid amount and that this decision resulted in a loss.25 

ANALYSIS -- ISSUE 2

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

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’s

procedures.26 The supporting financial information of record documents assets in excess of 

$200,000.00. 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 not necessary to consider 

the first prong of the test, i.e., whether her monthly income exceeded her monthly ordinary and 

necessary expenses by more than $50.00.27 Appellant did not establish that she was entitled to 

waiver on the basis of defeating the purpose of FECA.28

Although appellant contends on appeal that it would be a hardship to deny waiver, the 

Board finds that the reported financial information does not support this assertion. There is also 

no evidence to support that appellant gave up a valuable right or changed her position for the 

 

20 Supra note 18.

21 Id. 

22 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

23 Federal (FECA) Procedure Manual, supra note 18 at Chapter 2.600.b(3) (June 2009).

24 20 C.F.R. § 10.437(b)(1); see E.H., supra note 22.

25 20 C.F.R. § 10.437(b)(2) (2011); see M.B., supra note 12.

26 Supra note 18.

27 Id. 

 

28 See A.C., Docket No. 18-1550 (issued February 21, 2019).
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worse, in reliance on her FECA compensation. Appellant, therefore, did not establish that recovery 

of the overpayment was against equity and good conscience.29

As appellant failed to establish that recovery of the overpayment of compensation would 

either 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.30

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.31

Section 10.441 of OWCP’s regulations provides that 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 the 

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 hardship.32

ANALYSIS -- ISSUE 3

The Board finds that OWCP’s hearing representative gave due regard to the financial 

information appellant submitted as well as the factors set forth in section 10.441. As appellant’s 

monthly income exceeded her ordinary and necessary expenses, and her assets totaled greater than 

$200,000.00, the hearing representative did not abuse her discretion in requiring recovery by 

deducting $300.00 every 28 days from each of appellant’s continuing compensation payments.33 

The Board finds that the hearing representative properly determined recovery of the overpayment 

in this case.34

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $31,461.65, and that OWCP properly denied waiver of recovery 

 

29 Id.

30 Id.

31 20 C.F.R. § 10.441; see M.B., supra note 12.

32 Id.

33 See G.C., Docket No. 18-1062 (issued December 4, 2018).

34 See A.C., supra note 28.
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of the overpayment. OWCP also properly required recovery of the overpayment by deducting 

$300.00 every 28 days from her continuing compensation payments. 

ORDER

IT IS HEREBY ORDERED THAT the March 8, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 26, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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