United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.T., Appellant

and

DEPARTMENT OF THE TREASURY, 

BUREAU OF ENGRAVING & PRINTING, 

Fort Worth, TX, Employer

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Docket No. 16-1574

Issued: March 16, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 July 29, 2016 appellant filed a timely appeal from a February 2, 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, the Board has jurisdiction over 

the merits of this case.2

ISSUES

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

amount of $22,574.53 for the period August 1, 2010 through May 30, 2015; (2) whether OWCP 

 

1 5 U.S.C. § 8101 et seq.

2 The record provided the Board includes evidence received after OWCP issued its February 2, 2016 decision. The 

Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision. 

Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
2

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

$310.00 every 28 days from appellant’s continuing compensation. 

FACTUAL HISTORY

This case has previously been before the Board. 3 Appellant, a 69-year-old former 

secretary, filed a claim for a traumatic injury (Form CA-1) alleging that she sustained injury as a 

result of a flu shot she received in the employee health unit on October 16, 2007. In a 

December 11, 2009 decision, the Board found the case was not in posture for decision and 

remanded the case for further development. The facts and circumstances as set forth in the prior 

appeal decision are incorporated herein by reference. OWCP accepted the claim for necrotizing 

fasciitis, left, septic shock, acute renal failure with unspecified pathological lesions in kidney, other 

respiratory abnormality, traumatic unilateral amputation of right foot (complete) (partial), without 

complications, and gangrene on the right, scar conditions and fibrosis of the skin, and subluxations 

of the lumbosacral and sacroiliac joints/spine. It placed appellant on the periodic rolls in 

March 2008 for her total disability from work due to her work injury.

Appellant was born in August 1948. When she turned 62 in 2010, appellant was eligible 

to receive age-related social security retirement benefits. The record indicated that she was 

covered under the Federal Employees Retirement System (FERS) and was subject to Federal 

Insurance Contributions Act (FICA) withholding. A notation on appellant’s February 2, 2010 

Form CA-7 claim for leave without pay commencing from March 30, 2008 and indefinitely, 

revealed that appellant retired under FERS with a monthly payment amount of $969.40 on 

March 29, 2008.4

In a letter dated March 15, 2010, OWCP advised appellant that it was informed that she 

was receiving or may be entitled to benefits from the Office of Personnel Management (OPM) 

under the Civil Service Retirement Act (CSRS) or FERS. It explained that any benefits paid by 

OPM (including any lump-sum payment made as part of an alternative annuity under CSRS and 

benefits for wage loss paid by OWCP were not payable for the same period of time. OWCP 

explained that individuals entitled to both OWCP and OPM benefits must elect which benefit to 

receive. It noted that the election was not irrevocable and could be changed should appellant 

decide that the benefits of the other plan were more advantageous. OWCP also explained that if 

appellant elected FECA she could concurrently receive benefits from the Thrift Savings Fund and 

benefits provided by the Social Security Act (SSA). However, the SSA benefits had restrictions 

that they be reduced by the compensation payable and FECA benefits would be reduced by the 

SSA benefits paid on the basis of age and attributable to federal service. 

On May 5, 2015 the Social Security Administration provided the rates of appellant’s SSA 

payments, attributable both with and without appellant’s FERS, from August 1, 2010 to 

December 1, 2014. The Social Security Administration advised that appellant’s current SSA 

benefits without FERS was $1,420.40 and SSA benefits with FERS was $916.10.

 

3 Docket No. 09-0728 (issued December 11, 2009).

4 Appellant’s December 14, 2007 Form CA-1 similarly notes that her retirement coverage was under FERS.
3

In a letter dated June 2, 2015, OWCP notified appellant that it found that she was dual 

receipt of benefits under FERS and SSA. It explained that the portion of the SSA benefits earned 

as a federal employee was part of the FERS retirement package and that she was not entitled to 

receive both FERS and SSA concurrently as it was a prohibited dual benefit. OWCP explained 

that her SSA benefits would be adjusted from the FERS portion of the SSA benefits. It further 

explained that they would begin offsetting appellant’s workers’ compensation, as required on 

May 31, 2015. OWCP calculated the FERS offset by subtracting the SSA rate without FERS from 

the SSA rate with FERS to get the monthly FERS offset, and then took the monthly FERS offset 

amount and multiplied it by 12 and divided it by 13 to get the FERS offset for the 28-day 

compensation cycle. Therefore, it determined that the monthly offset was $1,420.40 minus 

$916.10 x 12 divided by 13 = $465.51, which it began offsetting from appellant’s monthly 

workers’ compensation beginning May 31, 2015. ($3,578.00 - $465.71= $3,112.49).

On June 4, 2015 OWCP notified appellant that a preliminary determination had been made 

finding that she was without fault in creating an overpayment of compensation in the amount of 

$22,574.53 for the period August 1, 2010 to May 30, 2015. It explained that the overpayment 

occurred because section 8116(d)(2) of FECA required that compensation benefits be reduced by 

the portion of SSA retirement benefits that are attributable to federal service. OWCP further 

explained that since appellant received SSA benefits based on federal service, her compensation 

benefits must be reduced by the amount of SSA benefits attributable to her federal service, and 

must be reduced (offset) retroactive to the date when she first received the SSA retirement benefits 

and OWCP benefits for the same period. It found that appellant was without fault in the creation 

of the overpayment, because she could not have reasonably been aware that her compensation was 

paid incorrectly. OWCP explained that, if she was unable to repay the full amount now, she should 

submit a completed OWCP-20 form (enclosed) to assist with determining a fair repayment method. 

It acknowledged that appellant advised via her yearly EN1032 forms, since 2011, she received 

SSA benefits attributable to her federal service, but OWCP did not make the proper offset until 

May 31, 2015, resulting in the overpayment. OWCP calculated the overpayment by multiplying 

the applicable monthly FERS offset by the 4,518 days overpaid from August 1, 2010 to May 30, 

2015, and then dividing by 28, the days in the compensation payment cycle, to determine the 

$22,574.53 overpayment. A printout of the payments for the aforementioned period was also 

provided. It revealed that for the period: August 1 to November 30, 2010, the overpayment 

amount was $1,910.84: for the period December 1, 2010 to November 30, 2011, the overpayment 

amount was $5,715.55; for the period December 1, 2011 to November 30, 2012, the overpayment 

was $5,938.85; for the period December 1, 2012 to June 30, 2013, the overpayment was $3,498.70; 

for the period July 1 to November 30, 2014, the overpayment was $2,501.30; and from 

December 1, 2014 to May 30, 2015, the overpayment was $3,009.17. The total overpayment for 

the FERS offset deduction was determined to be $22,574.53.

In a letter dated June 30, 2015, OWCP advised appellant of the new amount that she would 

be receiving after the offset. It noted that prior to the offset she was receiving $3,578.00, but, with 

the subtraction of the offset for the SSA deduction of $465.71, her new four-week amount would 

be $3,112.49. 

On July 1, 2015 counsel requested a prerecoupment hearing regarding the preliminary 

overpayment determination. A prerecoupment hearing was held before a hearing representative
4

on December 16, 2015. During the hearing, counsel argued that they did not disagree with the 

overpayment or the amount of the overpayment, only that it occurred through no fault of appellant. 

Furthermore, appellant was incapable of repaying it and they were requesting a waiver as she 

needed all of her income to meet her ordinary and necessary living expenses, and it would be 

against equity and good conscience to repay the overpayment as it would cause a severe hardship. 

Counsel argued that appellant submitted the appropriate forms and apprised OWCP of all 

payments she received and never evaded her reporting requirements. She explained that 

appellant’s life was changed forever by her October 15, 2007 employment injury from the flu shot 

that went wrong and her bills were increasing due to the injury. Counsel referenced appellant’s 

broken ankle, but explained that they had not received the bills and were unsure of how much 

appellant would have to pay with regard to her out of pocket expenses. She noted that appellant 

had to pay $1,500.00 out of pocket for a brace for her ankle, which was not a regular monthly 

expense, but showed how her situation constantly changed. When asked if the overpayment was 

correct, appellant testified that, if they calculated what she was actually drawing from 2010 to 

2015, they should have retired her at age 62 with full retirement with her disability and no penalty 

for drawing a salary from workers’ compensation, but they did not do that. Appellant was advised 

at the hearing that if she had concerns with the amount she received from SSA, she would need to 

contact that agency. Counsel explained that the majority of appellant’s financial hardship was her 

medical bills, prescriptions, upcoming medical bills, and her living expenses. Furthermore, 

appellant’s husband was supposed to be retired but his job was on the line because of his having 

to deal with her medical issues. Counsel argued that attempting to repay the overpayment would 

cause severe financial hardship based on their current living expenses and income. She noted that 

they made month-to-month payments and lived in a small house and that any attempt to repay the 

overpayment would literally wipe them out. Counsel argued that for equity and good conscience 

under the provisions, they wanted to ensure that appellant was not placed in a detrimental position, 

as a result of SSA’s failure to properly compute what is due. 

Appellant testified that she had no dependents other than her spouse. Regarding whether 

appellant had any assets over the $8,000.00 resource base, counsel noted a timeshare that was 

purchased for $9,000.00 or $10,000.00, but despite being on the market for many years, they were 

unable to find a buyer. Regarding other assets, counsel noted that appellant has money set aside 

in savings, in the event her spouse lost his job, or if she was dropped (from workers’

compensation), or if there was a major life issue. It was for emergency situations. Counsel argued 

that the work injury affected every aspect of her life and caused her to be diagnosed with Celiac 

disease and she now had to eat a gluten-free diet. She explained that she would provide 

documentation of appellant’s expenses. However, counsel only provided proof of two water bill 

payments. When asked if appellant was capable of paying back any amount on a monthly basis, 

counsel responded only if they could get the time share sold, but they could not get rid of it, and it 

was a burden.

On December 16, 2015 counsel submitted an unsigned and undated OWCP-20 Form on 

behalf of appellant, along with photographs of appellant’s injury. On January 15, 2016 she again 

requested that appellant’s overpayment be waived or reduced by half, as repayment would cause 

appellant a substantial burden. Counsel submitted financial documentation to include: a credit 

report from Credit Karma; appellant’s 2014 federal income tax return; a statement dated from 

Randolph Brooks Federal Credit Union (RBFCU) for October 2015, which revealed a loan in the 
5

amount of $18,862.36 with a monthly car payment of $217.95 and which appeared to reveal a 

second car loan for a Dodge Caravan in the amount of $4,805.94 with a monthly payment of 

$293.00; appellant’s spouse’s federal earning and leave statement for pay period 20 of 2015; and 

his October 2015 retirement statement, reflecting a net monthly income of $1,878.30; an 

October 2015 Mazda Capitol Credit auto loan statement for $503.83; a Wells Fargo mortgage 

statement for October 2015 which revealed a monthly payment of $793.65; and Fort Worth 

Community Credit Union (FWCCU) banking statements for September through October 2015.

The Credit Karma report revealed a monthly auto loan payment of $471.00 with RBFCU,

a monthly auto loan with JP Morgan Chase Bank of $503.00, and a Discover credit card with the 

last monthly payment of $45.00. The RBFCU checking account statement revealed a balance of 

$1,750.35 and the RBFCU savings account revealed a zero balance and monthly payments for a 

2014 Hyundai of $217.95 and $293.00 for a 2010 Dodge. Appellant’s spouse’s earning and leave 

statement revealed his net two-week pay was $1,432.13, and his net monthly Air Force retirement 

pay was $1,878.30. The Wells Fargo mortgage was $793.65. The FWCCU statement revealed 

direct deposits from the Treasury Department for $133.17 in September and October, with the 

ending October balance for the share draft account of $5,187.64 and an ending balance of 

$2,658.65 in the share account. The FWCCU statement shows two City of Arlington water bill 

payments of $114.24 and $119.24. The total balance of the RBFCU and FWCCU statements was 

equal to $9,596.64.

The unsigned/undated OWCP-20 form listed appellant’s total monthly income in the 

amount of $7,638.55, and total monthly expenses in the amount of $4,889.73.5 The expenses 

included a monthly rent of $1,000.00, food in the amount of $750.00, clothing in the amount of 

$200.00 per month, utilities in the amount of $700.00 and other expenses to include medical 

expenses in the amount of $1,300.00. Additionally, two creditors were listed as Mazda Capital 

services for a $17,174.57 loan, with a monthly payment of $503.83. The other creditor was listed 

as RBFCU in the amount of $18,862.36, with a monthly payment of $435.90. Appellant listed her 

assets as her $9,900.00 timeshare and $22,000.00 in checking and savings accounts. 

By decision dated February 2, 2016, OWCP’s hearing representative finalized OWCP’s 

preliminary determination regarding the fact and amount of the overpayment in the amount of 

$22,574.53, as well as its findings that appellant was not at fault in the creation of the overpayment 

because she was not aware, nor could she reasonably have been expected to know, that OWCP 

had paid compensation incorrectly. Regarding appellant’s request for waiver of recovery, the 

hearing representative noted that appellant had assets in excess of $8,000.00. Furthermore, despite 

the lack of evidence to support expenses claimed, the OWCP-20 form revealed monthly income 

of $7,638.55 and ordinary and necessary expenses of $4,889.73. OWCP noted that this was in 

excess of $50.00. It also noted that appellant continued to receive FECA wage-loss compensation 

and had a reasonable ability to repay $310.00 every 28 days from her continuing compensation 

payments.

 

5 Appellant’s spouse was listed as retired from the military. 
6

LEGAL PRECEDENT -- ISSUE 1

A FECA beneficiary may not receive wage-loss compensation concurrently with a federal 

retirement or survivor annuity. 6 To avoid payment of a dual benefit, FECA wage-loss 

compensation benefits shall be reduced by the amount of SSA benefits attributable to the 

employee’s federal (FERS-based) service. 7 However, an offset is not required where the 

employee-beneficiary is covered under the CSRS and/or her SSA age-related benefits are 

attributable to private sector employment.8

ANALYSIS -- ISSUE 1

The record establishes that appellant received wage-loss compensation under FECA. The 

record also established that she received age-related benefits under SSA for the period August 1, 

2010 to May 30, 2015. The portion of the SSA benefits appellant received as a federal employee 

as part of her FERS retirement package concurrently with the benefits she received under FECA 

is a prohibited dual benefit. 9 OWCP received information from SSA regarding appellant’s 

applicable SSA rates and their effective dates. Based on information provided by SSA, it 

calculated a required monthly offset for the period August 1, 2010 to May 30, 2015, which it 

properly declared an overpayment.

The Board has reviewed OWCP’s calculations of benefits appellant received for the period 

August 1, 2010 to May 30, 2015 and finds that appellant received an overpayment of compensation 

in the amount of $22,574.53. Appellant did not dispute that she received the overpayment in 

question, nor does she dispute the amount of the overpayment, with the exception of arguing about 

how SSA, should have retired her at age 62.10 OWCP explained how the overpayment occurred 

and provided these calculations to appellant with the preliminary determination of overpayment. 

The Board finds that OWCP properly determined fact and amount of the overpayment that covered 

the period August 1, 2010 to May 30, 2015.

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. 11 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

 

6 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

7 5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

8 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter 2.812.9c 

(May 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4e(2) 

(January 1997).

9 See P.G., Docket No. 13-589 (issued July 9, 2013).

10 Appellant was advised to contact SSA regarding how the calculations of the amount she received from SSA.

11 See Robert Atchison, 41 ECAB 83, 87 (1989).
7

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 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.

Section 10.436 of the implementing regulations13 provide that 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 or 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.14 An individual is deemed to need substantially all of his or her income to meet current

ordinary and necessary living expenses if monthly income does not exceed monthly expenses 

by more than $50.00.15

Section 10.437 provides that recovery of an overpayment is considered to be against

equity and good conscience when an individual who received an overpayment would experience

severe financial hardship attempting to repay the debt; and when an 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.16

Section 10.438 of the regulations provide 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.17

ANALYSIS -- ISSUE 2

As appellant was found to be without fault in the creation of the overpayment, OWCP 

considered whether waiver of recovery of the overpayment was warranted.

 

12 5 U.S.C. § 8129(b).

13 20 C.F.R. § 10.436.

14 An individual’s assets must exceed a resource base of $3,000.00 for an individual or $5,000.00 for an

individual with a spouse or one dependent plus $600.00 for each additional dependent. This base includes all of the

individual’s assets not exempt from recoupment. See Robert F. Kenney, 42 ECAB 297 (1991).

15 See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

16 20 C.F.R. § 10.437.

17 Id. at § 10.438.
8

In support of waiver, counsel provided an overpayment recovery questionnaire (OWCP20), which revealed monthly income of $7,638.55 and ordinary and necessary expenses of 

$4,889.73, or a surplus of $2,748.82. The Board notes that this was in excess of $50.00, and 

therefore, waiver of recovery was not appropriate. OWCP also determined that appellant had 

assets in excess of $8,000.00, which included $22,000.00 in a checking account, along with a time 

share valued around $9,000.00, which further affected her ability to have the overpayment waived. 

Thus, appellant has not shown that recovery of the overpayment would defeat the purpose of 

FECA.

Furthermore, appellant has not shown that recovery of an overpayment is considered to be 

against equity and good conscience when an individual who received an overpayment would 

experience severe financial hardship in attempting to repay the debt or when an individual, in 

reliance on such payment or on notice that such payments would be made, relinquished a valuable 

right or changed her position for the worse.18 She submitted no evidence to show that she gave up 

a valuable right or changed her position for the worse in reliance upon anticipated compensation 

payments. Thus, appellant 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 she was not entitled to waiver because recovery would not be against equity

and good conscience.

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

The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those

cases where OWCP seeks recovery from continuing compensation under FECA.19 Section

10.441(a) of the regulations20 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 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.”

21

 

18 20 C.F.R. § 10.437(a), (b).

19 Lorenzo Rodriguez, 51 ECAB 295 (2000); Albert Pineiro, 51 ECAB 310 (2000).

20 20 C.F.R. § 10.441(a).

21 Id.
9

ANALYSIS -- ISSUE 3

The record reflects that appellant continues to receive wage-loss compensation under

FECA. The Board finds that OWCP gave due regard to the relevant factors noted above in setting 

a rate of recovery of $310.00 every compensation period. The record indicates that appellant’s 

monthly income exceeds her reported monthly expenses by $2,748.82 per month. OWCP 

therefore did not abuse its discretion in calculation of a recoupment amount.

The Board finds that OWCP’s hearing representative properly imposed a repayment 

schedule of $310.00 every 28 days to be withheld from appellant’s ongoing FECA wage-loss 

compensation.

CONCLUSION

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

$22,574.53 for the period August 1, 2010 through May 30, 2015. Although she was not at fault in 

creating the overpayment, appellant is not entitled to waiver of recovery. Moreover, OWCP 

properly withheld $310.00 every 28 days from her continuing compensation.

ORDER

IT IS HEREBY ORDERED THAT the February 2, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 16, 2018

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