United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.Z., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Wilmington, DE, Employer 

__________________________________________ 

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Docket No. 17-0447 

Issued: June 19, 2017 

Appearances: Case Submitted on the Record

Cynthia Levin, for the appellant1

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 December 23, 2016 appellant, through his representative, filed a timely appeal from a 

June 29, 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 appellant received an overpayment of compensation in the 

amount of $60,991.35 from June 1, 2010 through October 17, 2015; (2) whether OWCP properly 

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

it would recover the overpayment by deducting $760.00 from appellant’s continuing 

compensation payments. 

On appeal, appellant’s representative contends that recovery of the overpayment should 

be waived and the amount of appellant’s Social Security Disability Insurance (SSDI) should be 

reinstated. She maintains that OWCP failed to fully develop the record and address the issue of 

whether appellant received dual benefits and whether recovery of the overpayment was against 

equity and good conscience. The representative also maintains that it violated its procedures 

because it did not provide appellant with two weeks’ notice regarding the offset of his 

compensation benefits. She asserts that an automatic conversion from SSDI to Social Security 

Administration (SSA) benefits discriminated against appellant based on age. 

FACTUAL HISTORY 

On March 11, 2008 appellant, then a 63-year-old physician, filed an occupational disease 

claim (Form CA-2) alleging that on November 7, 2007 he first realized that his aggravation of 

major depressive disorder, aggravation of obsessive compulsive disorder, and aggravation of 

post-traumatic stress disorder (PTSD) were caused by his regularly assigned federal work duties 

and daily aspects of his job. He stopped work on November 7, 2007. 

On September 5, 2008 OWCP accepted the claim for aggravation of major depressive 

disorder and aggravation of PTSD. It placed appellant on the periodic rolls and paid 

compensation for total disability beginning October 26, 2008. 

Appellant had routinely been required, as a condition of being on the periodic rolls, to 

submit EN1032 forms. He signed a Form EN1032 on July 8, 2011 indicating that he received 

monthly disability benefits from the SSA. Appellant continued to submit EN1032 forms dated 

2012 to 2015 disclosing the receipt of benefits from SSA due to his disability. 

On July 11 and October 11, 2012, and January 22, 2013 OWCP requested that SSA 

provide a dual benefit calculation. 

On October 26, 2015 SSA submitted a form reflecting that appellant had begun receiving 

SSA retirement effective June 1, 2010. It also showed SSA rates with a Federal Employees 

Retirement System (FERS) offset and without a FERS offset from June 1, 2010 through 

December 1, 2014.3

 The form revealed that appellant was entitled to SSA disability benefits 

from May 2008 to May 2010. 

By letter dated November 2, 2015, OWCP advised appellant that he had been receiving 

SSA retirement benefits based on age since June 1, 2010. Effective October 18, 2015, it reduced 

 3

 Appellant reached age 66 on June 2, 2010. 
3

his 28-day compensation payment by $905.54, the amount of his SSA retirement benefits 

attributable to his federal service. 

The record includes an OWCP worksheet containing a calculation showing that appellant 

received a $60,991.35 overpayment of compensation for the period June 1, 2010 to October 17, 

2015 due to the failure to offset SSA benefits. 

In a November 17, 2015 notice, OWCP advised appellant of its preliminary 

determination of an overpayment of compensation in the amount of $60,991.35 for the period 

June 1, 2010 to October 17, 2015 because he had received a prohibited dual benefit. Appellant 

had received SSA retirement benefits based on age during this period while simultaneously 

receiving FECA wage-loss compensation. OWCP explained that it was required by statute to 

recover the overpaid FECA compensation, reducing FECA compensation benefits by the amount 

of the SSA retirement benefits attributed to his federal service. It also made a preliminary 

determination that appellant was not at fault in the creation of the overpayment because he was 

not aware nor could he have been reasonably expected to know that he had received an incorrect 

payment. OWCP advised him that he could submit evidence challenging the fact, amount, or 

finding of fault and request waiver of recovery of the overpayment. Additionally, it informed 

appellant that, within 30 days of the date of the letter, he could request a telephone conference, a 

final decision based on the written evidence, or a prerecoupment hearing. OWCP requested that 

he complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit 

supporting financial documents. 

By letter dated December 15, 2015, appellant disagreed with the fact and amount of the 

overpayment and requested waiver of repayment. On October 21, 2015 OWCP received an 

overpayment action request form from him dated December 15, 2015. Appellant requested that 

OWCP review the written evidence. 

In CA-110 notes dated January 19, 2016, appellant requested a telephone conference 

instead of a review of the written evidence. 

In a March 16, 2016 petition, appellant contended that the monthly offset should not be 

applied until after his appeal had been heard and determined. He also contended that the 

overpayment and recovery of the overpayment were against equity and good conscience because 

he was automatically converted from SSDI to SSA retirement benefits and was subjected to an 

unsafe work environment.4

 Appellant also asserted that OWCP failed to notify him in a timely 

manner about the reduction in his benefits as it had more than five years notice that he received 

SSA benefits and it violated federal law as it discriminated against him based on his disability. 

He contended that his financial circumstances were not material to OWCP’s determination. 

On March 21, 2016 OWCP held a telephone conference with appellant and his 

representative. The representative reiterated the contentions appellant provided in his March 16, 

2016 petition. 

 4

 In a June 8, 2016 letter, the employing establishment informed OWCP that appellant had been removed from its 

payroll effective April 18, 2016, as he wished to retire. 
4

In an April 26, 2016 letter, appellant’s representative primarily contended that appellant 

relinquished a valuable right by relying upon the government to legally and properly administer 

its laws and procedures and detrimentally relied on Civil Service Retirement System and FERS 

handbooks for information regarding payment of disability wage-loss compensation and 

OWCP’s responsibility to review the EN1032 forms he had completed since 2010. 

By decision dated June 29, 2016, OWCP finalized the preliminary overpayment 

determination, finding an overpayment of compensation in the amount of $60,991.35 for the 

period June 1, 2010 to October 17, 2015 for which he was without fault. It denied waiver of 

recovery of the overpayment as appellant failed to provide any financial justification for such 

action. OWCP determined that it would recover the overpayment by deducting $760.00 per 

month from his continuing compensation payments commencing July 24, 2016. 

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 retirement 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 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 The 

offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as 

follows: where a claimant had received SSA benefits, OWCP will obtain information from the 

SSA on the amount of the claimant’s SSA 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 

 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). 

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e)(2) (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. See R.C., Docket No. 09-2131 (issued April 2, 2010). 
5

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 overpayment.9 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained an aggravation of major depressive disorder and 

aggravation of PTSD while in the performance of duty. The record supports that appellant 

received FECA wage-loss compensation from October 26, 2008 and that he received SSA 

disability benefits until June 1, 2010 when his disability benefits were converted to SSA 

retirement benefits. The portion of the SSA benefits he earned as a federal employee was part of 

his FERS retirement package, and the receipt of benefits under FECA and federal retirement 

benefits concurrently is a prohibited dual benefit.10 Appellant’s FECA compensation was not 

offset until October 18, 2015. SSA notified OWCP of the applicable SSA rates for that period 

and their effective dates. Based on these rates, OWCP calculated the dual benefit appellant had 

received from June 1, 2010 to October 17, 2015, which yielded an overpayment of compensation 

in the amount of $60,991.35. The record includes an overpayment worksheet explaining the 

overpayment calculation. 

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

finds that OWCP properly determined an overpayment of compensation in the amount of 

$60,991.35 from June 1, 2010 to October 17, 2015. 

Appellant’s representative asserted before OWCP and on appeal that an automatic 

conversion from SSDI to SSA retirement benefits discriminated against appellant based on age. 

As noted above, FECA benefits must be reduced by SSA benefits paid on the basis of age and 

attributable to the employee’s federal service.11 

LEGAL PRECEDENT -- ISSUE 2 

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter 

that rests within OWCP’s discretion pursuant to statutory guidelines. These statutory guidelines 

are found in section 8129(b) of FECA which states: “Adjustment or recovery of an overpayment 

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 this 

subchapter or would be against equity and good conscience.”12 When a claimant is found to be 

without fault in the matter of the overpayment, then, in accordance with section 8129(b), OWCP 

 9 See L.B., Docket No. 11-2076 (issued August 29, 2012). 

10 5 U.S.C. § 8116(d)(2); see also R.C., Docket No. 14-1383 (issued December 5, 2014); see also FECA Bulletin 

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

11 5 U.S.C. § 8116(d). 

12 Id. § 8129(b). 
6

may only recover the overpayment if it determined that recovery of the overpayment would 

neither defeat the purpose of FECA nor be against equity and good conscience.13 

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. This 

information will also be used to determine the repayment schedule, if necessary. 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.14 

ANALYSIS -- ISSUE 2 

As OWCP found appellant without fault in the creation of the overpayment, waiver 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.15 In a November 

17, 2015 preliminary determination of overpayment, it advised appellant of its preliminary 

determination and instructed him 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, he could request a telephone conference, a final decision based 

on the written evidence, or a prerecoupment hearing. Appellant did not submit a completed 

overpayment recovery questionnaire or supporting financial documents and contended that his 

financial circumstances were immaterial to an OWCP determination. Thus, OWCP did not have 

the necessary financial information to determine whether recovery of the overpayment would 

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

such that it would cause a financial burden. 

Consequently, OWCP properly denied waiver of recovery of the overpayment in the 

amount of $60.991.35. 

On appeal, appellant’s representative contends that recovery of the overpayment should 

be waived and the amount of appellant’s SSDI should be reinstated. She further contends that 

OWCP failed to fully develop the record and address the issue of whether he received dual 

benefits and whether recovery of the overpayment was against equity and good conscience. 

Contrary to the representative’s contention, OWCP, in its November 17, 2015 notice, specifically 

requested that appellant complete a Form OWCP-20 along with supporting documents to 

determine his eligibility for waiver of recovery of the overpayment. Appellant merely responded 

that his financial circumstances were not material to OWCP’s overpayment determination. 

Moreover, OWCP’s June 29, 2016 decision noted that he had not submitted the required 

 13 M.G., Docket No. 14-1917 (issued January 22, 2015). 

14 20 C.F.R. § 10.438. 

15 Supra note 12. 
7

financial information and denied waiver of recovery of the overpayment and provided specific 

appeal rights if he disagreed with OWCP’s decision. 

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 FECA.16 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 [appellant’s] 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.”17 

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.18 The Board 

finds that OWCP did not abuse its discretion in following those guidelines in this case by 

deducting $760.00 every four weeks, where appellant has not submitted complete financial 

information. 

On appeal, appellant’s representative contends that OWCP violated its procedures 

because it did not give appellant two weeks’ notice about the offset of his compensation benefits. 

OWCP procedures provide that, “[i]f for any reason the decision letter is not released at least two 

weeks before the next compensation check, the deduction for the overpayment should not be 

started until the following check cycle, to provide the claimant the required two-week notice for 

reduction in net compensation.” In this case, the June 29, 2016 overpayment decision set up a 

repayment schedule of withholding $760.00 from appellant’s compensation checks beginning 

July 24, 2016 and continuing until the debt had been repaid. OWCP did not violate its 

procedures as this decision was issued at least two weeks prior to the issuance of appellant’s next 

compensation check on July 24, 2016. 

 16 Id. at § 10.441(a). 

17 Id.

18 Robin D. Calhoun, Docket No. 00-1756 (issued May 21, 2001); Gail M. Roe, 47 ECAB 268 (1995). 
8

CONCLUSION 

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

of $60,991.35 from June 1, 2010 through October 17, 2015. The Board further finds that OWCP 

properly denied waiver of recovery of the overpayment, and properly determined that it would 

recover the overpayment by deducting $760.00 from continuing compensation payments. 

ORDER 

IT IS HEREBY ORDERED THAT the June 29, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 19, 2017 

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