United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Dallas, TX, Employer

__________________________________________

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Docket No. 18-1293

Issued: January 28, 2019

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 June 15, 2018 appellant filed a timely appeal from a June 7, 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 this case.3

 

1 The record also contains an April 27, 2018 decision suspending appellant’s wage-loss compensation under 5 

U.S.C. § 8123(d) as she failed to fully cooperate with a scheduled medical examination. Appellant has not appealed 

this decision and thus it is not before the Board at this time. 20 C.F.R. § 501.2(c). Additionally, she has requested an 

oral hearing on the April 27, 2018 decision before an OWCP hearing representative and thus the issue is in an 

interlocutory posture. See T.C., Docket No. 18-0435 (issued July 10, 2018); see also 20 C.F.R. § 501.2(c)(2).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the June 7, 2018 decision, OWCP received additional evidence. 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 issue are: (1) whether appellant received a $54,852.63 overpayment of wage-loss 

compensation for the period August 1, 2012 to April 29, 2018; and (2) whether OWCP properly 

determined that she was not entitled to waiver of recovery of the overpayment.

FACTUAL HISTORY

This case has previously been before the Board. The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference.4 The relevant facts are as 

follows.

On June 19, 2001 appellant, then a 54-year-old licensed vocational nurse, filed a traumatic 

injury claim (Form CA-1) alleging that on June 13, 2001 she sustained injuries while helping a 

falling patient. OWCP accepted her claim, assigned File No. xxxxxx680, for strains of the cervical, 

thoracic, and lumbar spine; displacement of a lumbar intervertebral disc without myelopathy; and 

thoracic or lumbosacral neuritis or radiculitis. After sustaining intermittent periods of disability, 

appellant stopped work on March 23, 2003 and did not return. OWCP paid her wage-loss 

compensation for total disability on the periodic rolls beginning March 2008.5

OWCP also accepted appellant’s July 14, 2004 occupational disease claim (Form CA-2)

for displacement of a lumbar intervertebral disc without myelopathy, and thoracic or lumbosacral 

neuritis or radiculitis under File No. xxxxxx140. It combined the claims into File No. xxxxxx680, 

which serves as the master file number.

6

On March 8, 2018 the Social Security Administration (SSA) provided appellant’s SSA rate 

with FERS and her rate without FERS from August 2012 through December 2017. With FERS, 

appellant’s SSA rate was $1,365.30 effective August 2012, $1,388.50 effective December 2012, 

$1,409.30 effective December 2013, $1,433.20 effective December 2014 and 2015, $1,437.40 

effective December 2016, and $1,466.10 effective December 2017. Without FERS, her SSA rate 

was $602.80 effective August 2012, $613.00 effective December 2012, $622.10 effective 

December 2013, $632.60 effective December 2014 and 2015, $634.40 effective December 2016, 

and $647.00 effective December 2017.

By decision dated April 27, 2018, OWCP suspended appellant’s wage-loss compensation 

and authorization for medical benefits under 5 U.S.C. § 8123(d) effective April 29, 2018 for 

 

4 Docket No. 08-1500 (issued December 5, 2008); Docket No. 05-0477 (issued July 25, 2005).

5 An April 16, 2003 claim for compensation (Form CA-7) indicated that appellant had retirement coverage under 

the Federal Employees Retirement System (FERS).

6 By decision dated April 18, 2016, OWCP terminated appellant’s wage-loss compensation and authorization for 

medical benefits effective April 18, 2016. By decision dated May 24, 2016, an OWCP hearing representative reversed 

the April 18, 2016. OWCP again terminated appellant’s wage-loss compensation and medical benefits in a March 1, 

2017 decision; however, by decision dated November 30, 2017, an OWCP hearing representative reversed the 

March 1, 2017 decision.
3

obstructing a scheduled medical examination.7 It advised that it would reinstate her compensation 

if she fully cooperated with the examination.

OWCP completed a FERS offset calculation form on April 30, 2018. It calculated the 

amount that it should have offset from appellant’s wage-loss compensation from August 1, 2012

through April 28, 2018. OWCP found: effective August 1, 2012, the monthly offset was $762.50 

($1,365.30-$602.80), or $703.85 every 28 days; effective December 1, 2012, the monthly offset 

was $775.50 ($1,388.50-$613.00), or $715.85 every 28 days; effective December 1, 2013, the 

monthly offset was $787.20 ($1,409.30-$622.10) or $726.65 every 28 days; effective December 1, 

2014, the monthly offset was $800.70 ($1,433.30-$632.60), or $739.11 every 28 days; effective 

December 1, 2016, the monthly offset was $803.00 ($1,437.40-$634.40) or $741.23 every 28 days; 

and, effective December 1, 2017, the monthly offset was $819.10 ($1,466.10-$647.00) or $756.09 

every 28 days. It divided the 28-day offset amount to find the daily amount, which it multiplied 

by the number of days in each period August 1, 2012 to December 1, 2017 to calculate the amount 

that it overpaid appellant for each period. OWCP added the amounts for each period and 

determined that it should have offset $54,852.63 from her wage-loss compensation.

Appellant, on April 30, 2018, requested an oral hearing before a hearing representative of 

OWCP’s Branch of Hearings and Review regarding the April 27, 2018 decision. 

On May 2, 2018 OWCP advised appellant of its preliminary determination that she had 

received an overpayment of wage-loss compensation in the amount of $54,852.63 for the period 

August 1, 2012 through April 29, 2018 because it had failed to offset her FECA compensation 

benefits by the portion of her age-related SSA benefits attributable to her federal service. It set 

forth its calculations of the overpayment, indicating that it had obtained the daily amount to be 

offset during each period and had multiplied this amount by the number of days in each period to 

obtain the overpayment of compensation. OWCP further advised appellant of its preliminary 

determination that she was without fault in the creation of the overpayment of wage-loss 

compensation, noting that it had not informed her of the possibility that she might receive dual 

benefits. It requested that she complete the enclosed overpayment recovery questionnaire and 

submit supporting financial documents so that it could determine whether she was entitled to 

wavier of recovery of the overpayment. Additionally, OWCP notified appellant that, within 30 

days of the date of the letter, she could request a telephone conference, a final decision based on 

the written evidence, or a prerecoupment hearing.

In a May 7, 2018 overpayment recovery questionnaire (OWCP-20), appellant related that 

she had assets of $1,685.70. She provided monthly income of $2,509.50 in SSA benefits and 

monthly expenses of $2,543.34, including $146.34 for her mortgage, $300.00 for food, $200.00 

for clothing, $800.00 for utilities, and $1,000.00 in other expenses. Appellant requested waiver of 

recovery of the overpayment, noting that she would experience severe hardship trying to repay the 

debt. She indicated that her husband required treatments for cancer and that the expenses for the 

treatment were not fully covered by insurance.

By decision dated June 7, 2018, OWCP found that appellant had received an overpayment 

of wage-loss compensation in the amount of $54,852.63 from August 1, 2012 to April 29, 2018 

 

7 OWCP noted that appellant attended the scheduled examination with the impartial medical examiner, but provided 

the physician with a letter advising that she would sue him if he agreed with the second opinion physician. 
4

because she received wage-loss compensation from OWCP and benefits from SSA without the 

appropriate offset. It further found that she was without fault in the creation of the overpayment,

but denied waiver of recovery of the overpayment. OWCP noted that appellant had not fully 

disclosed her income as she had FECA benefits that could be reinstated if she ceased obstructing 

an OWCP directed medical examination. It further found that she had not provided her spouse’s 

income or submitted documentation to support her claimed recurring monthly expenses. OWCP 

determined that appellant should submit $475.00 monthly as repayment of the overpayment.

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.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(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.10 FECA Bulletin No. 97-09 provides 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

Section 404.310 of SSA regulations provides that entitlement to SSA benefits begins at 62 

years.12 Section 404.409 of SSA regulations provides that for individuals born from 1943 to 1954, 

full retirement age is 66 years.13

ANALYSIS -- ISSUE 1

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

of wage-loss compensation in the amount of $54,852.63 for the period August 1, 2012 to 

April 29, 2018.

OWCP accepted strains of the cervical, thoracic, and lumbar spine, displacement of a 

lumbar intervertebral disc without myelopathy, and thoracic or lumbosacral neuritis or radiculitis 

due to a June 13, 2001 work injury. It paid her wage-loss compensation for total disability on the 

periodic rolls as of April 13, 2008. Beginning August 1, 2012, appellant also received age-related 

retirement benefits from SSA. As noted, a claimant cannot receive concurrent compensation for 

 

8 5 U.S.C. § 8102(a).

9

Id. at § 8116.

10 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

11 FECA Bulletin No. 97-09 (February 3, 1997); see also G.K., Docket No. 18-0243 (issued August 17, 2018).

12 20 C.F.R. § 404.310.

13 Id. at § 404.409.
5

wage loss and SSA retirement benefits attributable to federal service for the same period.14 The 

information provided by SSA indicated that appellant received age-based SSA benefits that were 

attributable to her federal service from August 1, 2012 to April 29, 2018, and thus she received an 

overpayment of wage-loss compensation.15

OWCP calculated the overpayment of compensation by determining the portion of SSA 

benefits that were attributable to appellant’s federal service. The SSA provided her SSA rate with 

FERS, and without FERS for specific periods commencing August 1, 2012 to April 29, 2018. The 

difference between these amounts must be deduced from appellant’s FECA benefits. OWCP 

provided its calculations of the amount that it should have offset for each relevant period based on 

the SSA worksheet. The Board has reviewed OWCP’s calculations and finds that it properly 

determined that appellant received dual benefits totaling $54,852.63, creating an overpayment of 

compensation in that amount.16

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment must be recovered 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.”

17

 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.18

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $54,852.63 

overpayment of compensation.

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.19 Appellant, 

however, had the responsibility to provide the appropriate financial information to OWCP.20

 

14 See S.M., Docket No. 17-1802 (issued August 20, 2018); D.M., Docket No. 17-0983 (issued August 3, 2018).

15 Id.

16 See E.K., Docket No. 18-0587 (issued October 1, 2018); L.M., Docket No. 16-1035 (issued November 27, 2017).

17 5 U.S.C. § 8129(a)-(b); see D.C., Docket No. 17-0559 (issued June 21, 2018).

18 20 C.F.R. § 10.438.

19 Supra note 18.

20 Supra note 19; see also S.M., Docket No. 17-1802 (issued August 20, 2018).
6

In its May 2, 2018 preliminary overpayment determination, OWCP clearly explained the 

importance of providing a completed overpayment questionnaire and financial information, 

including copies of income tax returns, bank account statements, bills and canceled checks, pay 

slips, and any other records to support income and expenses. It advised appellant that it would 

deny waiver if she failed to furnish the requested financial information within 30 days. 

Appellant’s May 7, 2018 overpayment recovery questionnaire (OWCP-20) listed monthly 

income of $2,509.50, and $2,543.34 in monthly expenses, which represented a monthly deficit of 

$33.84. However, as OWCP’s hearing representative correctly noted she had not provided

financial documentation in support of her claimed monthly expenses. As appellant failed to submit 

complete financial information, OWCP did not have the necessary financial information to 

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

and good conscience.21 In requesting waiver, the overpaid individual has the responsibility for 

submitting financial information.22 Because appellant failed to furnish documentation regarding 

her claimed expenses, as required by 20 C.F.R. § 10.438, she was not entitled to waiver.23 The 

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

24

CONCLUSION

The Board finds that appellant received a $54,852.63 overpayment of wage-loss 

compensation for the period August 1, 2012 to April 29, 2018. The Board further finds that 

OWCP properly determined that she was not entitled to waiver of recovery of the overpayment.

 

21 See supra note 19; see also S.C., Docket No. 17-0762 (issued March 19, 2018).

22 Id.; see also R.O., Docket No. 18-0076 (issued August 3, 2018).

23 Id.; see also H.T., Docket No. 17-1805 (issued March 6, 2018).

24 See L.J., Docket No. 17-1591 (issued November 16, 2017).
7

ORDER

IT IS HEREBY ORDERED THAT the June 7, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 28, 2019

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