United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

DEPARTMENT OF THE ARMY, 

COMBAT SUPPORT TRAINING CENTER, 

Fort Hunter Liggett, CA, Employer

__________________________________________

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Docket No. 19-0171

Issued: June 12, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On November 2, 2018 appellant filed a timely appeal from a July 10, 2018 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $41,759.19 for the period March 1, 2013 through 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the July 10, 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

October 14, 2017; (2) whether OWCP properly denied waiver of recovery of the overpayment; 

and (3) whether OWCP properly required recovery of the overpayment by deducting $500.00 from 

appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On April 18, 2006 appellant, then a 59-year-old range support technician, filed an 

occupational disease claim (Form CA-2) alleging that he sustained an emotional condition and 

work-related stress due to factors of his federal employment. He stopped work on December 14, 

2005 and underwent coronary bypass surgery on January 10, 2006. Appellant returned to work on 

April 10, 2006 and stopped again in April 2007. 

OWCP accepted appellant’s claim for coronary atherosclerosis of unnamed vessel, 

hypertensive heart disease without congestive failure, dysthymia, and recurrent depression 

disorder. It paid wage-loss compensation on the supplemental rolls beginning June 15, 2007, and 

on the periodic rolls effective March 16, 2008. 

In March 2013, appellant reached normal retirement age of eligibility for Social Security 

Administration (SSA) retirement benefits.

On EN1032 forms dated March 29, 2013, March 19, 2014, March 26, 2015, April 6, 2016, 

and April 10, 2017, appellant indicated that he had received SSA benefits as part of an annuity for 

federal service. 

In a form dated June 16, 2017, the SSA advised OWCP that appellant had concurrently 

received FECA benefits and retirement benefits through the Federal Employees Retirement 

System (FERS) beginning in March 2013. It provided the amount that he had received in 

retirement benefits, including the amount earned through FERS and the hypothetical amount that 

he would have received without FERS. Including FERS, appellant was entitled to a monthly SSA 

rate of $1,825.30 effective March 2013, $1,852.60 effective December 2013, $1,884.00 effective 

December 2014, $1,884.00, effective December 2015, and $1,889.60 effective December 2016. 

SSA further advised that, without FERS, appellant would have been entitled to a monthly 

SSA rate of $1,092.80 effective March 2013, $1,109.10 effective December 2013, $1,127.90 

effective December 2014, $1,127.90 effective December 2015, and $1,131.20 effective 

December 2016. 

OWCP completed a FERS offset calculation on November 2, 2017. It determined the 28-

day FERS offset amount for the days in each period, which it added to find a total overpayment of 

$41,759.19. 

In a letter dated November 2, 2017, OWCP advised appellant that it was adjusting his 

compensation, effective October 15, 2017, to offset the portion of his SSA retirement benefits 

attributable to his federal service. It informed him that he would receive net compensation of 

$2,950.84 every 28 days. 

In a preliminary determination dated November 3, 2017, OWCP notified appellant that he 

had received an overpayment of compensation in the amount of $41,759.19 because it had failed 
3

to reduce his wage-loss compensation benefits for the period March 1, 2013 through October 15, 

2017 by the portion of his SSA benefits that were attributable to federal service. It calculated the 

overpayment amount by determining the difference between his SSA amount with and without 

FERS for each period and adding these amounts to find a total of $41,759.19. OWCP further 

advised appellant of its preliminary determination that he was without fault in the creation of the 

overpayment and requested that he complete the enclosed overpayment recovery questionnaire 

(Form OWCP-20). It informed him that, in order for it to consider the question of waiver of 

recovery of the overpayment or to determine a reasonable method for condition, he must provide 

a completed Form OWCP-20, and attach supporting financial documentation. 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 response to the preliminary overpayment determination or 

complete an overpayment recovery questionnaire (Form OWCP-20). 

By decision dated July 10, 2018, OWCP found that appellant had received an overpayment 

of wage-loss compensation in the amount of $41,759.19 for the period March 1, 2013 through 

October 14, 2017 because it failed to offset his compensation payments by the portion of his SSA 

age-related benefits that were attributable to his federal service. It determined that he was without 

fault in the creation of the overpayment, but denied waiver of recovery of the overpayment of 

compensation. OWCP found that it would recover the overpayment by deducting $500.00 every 

28 days from appellant’s continuing wage-loss compensation payments. 

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA3provides 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 his or her duty.4 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.5

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

amount of compensation by the amount of any SSA age-based benefits that are attributable to 

federal service of the employee.6 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.7

 

3 Supra note 1.

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

7 FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
4

Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins 

at 62 years.8 Section 404.409 of SSA regulations provides that, for individuals born from 1943 to 

1954, full retirement age is 66 years.9

ANALYSIS -- ISSUE 1

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

of wage-loss compensation in the amount of $41,759.19 for the period March 1, 2013 through 

October 14, 2017.

OWCP accepted that appellant sustained an emotional condition and a cardiac condition 

due to factors of his employment as a range support technician. It paid him wage-loss 

compensation for total disability, effective June 15, 2007. Beginning March 1, 2013, appellant 

also received age-related retirement benefits from SSA. As noted, a claimant cannot receive 

concurrent compensation for wage-loss and SSA retirement benefits attributable to federal service 

for the same period.10 The information provided by SSA indicated that appellant received agebased SSA benefits that were attributable to his federal service from March 1, 2013 through 

October 14, 2017 without an appropriate offset, and thus, he received an overpayment of wageloss compensation.11

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

benefits that were attributable to appellant’s federal service. It received documentation from SSA 

with respect to the specific amount of age-based SSA retirement benefits that were attributable to 

federal service. SSA provided appellant’s SSA rate with FERS and without FERS for specific 

periods March 1, 2013 through October 14, 2017.12 OWCP provided its calculations of the 

amount that it should have offset for each relevant period based on the SSA worksheet. No 

contrary evidence was provided. 

The Board has reviewed OWCP’s calculations and finds that it properly determined that 

appellant received prohibited dual benefits totaling $41,759.19, thus creating an overpayment of 

compensation in that amount, for the period March 1, 2013 through October 14, 2017.13

 

8 20 C.F.R. § 404.310.

9

Id. at § 404.409.

10 Supra note 7; A.C., Docket No. 18-1550 (issued February 21, 2019).

11 Id. 

12 The SSA worksheet provided applicable rates effective the following dates: March 1 and December 1, 2013, 

December 1, 2014, December 1, 2015, and December 1, 2016. 

13 See L.L., Docket No. 18-1103 (issued March 5, 2019). The Board notes that, for the period December 1, 2013 to 

November 30, 2014, OWCP incorrectly noted amounts of $1,825.30 with FERS and $1,092.80 without FERS, instead 

of $1,852.60. The proper amounts were $1,852.60 with FERS and $1,109.10 without FERS. However, it properly 

noted the deduction of FERS offset as $743.50 ($1852.60 - $1109.10). 
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LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in 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.14 Section 10.438 of OWCP’s regulations provides that [t]he 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.15 

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $41,759.19 

overpayment.

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.16 Appellant, 

however, had the responsibility to provide financial information to OWCP,17 and he did not do so.

In its preliminary determination dated November 3, 2017, OWCP clearly explained the 

importance of providing the completed overpayment recovery questionnaire (Form OWCP-20) 

and supporting financial documentation. It advised appellant that it would deny waiver of recovery 

if he failed to furnish the requested financial information within 30 days. Appellant did not submit 

a completed overpayment recovery questionnaire or otherwise submit financial information 

supporting his income and expenses within the defined period. As a result, OWCP did not have 

the necessary financial information to determine if recovery of the overpayment would defeat the 

purpose of FECA or if recovery would be against equity and good conscience. 

On appeal, appellant alleges that the information asked for on OWCP-20 form was too 

intrusive and violated his privacy. As explained, however, he has the responsibility to provide the 

necessary financial information in order for OWCP to determine his eligibility for waiver. 

Consequently, as appellant did not submit the financial information required under section 10.438 

of OWCP’s regulations, OWCP properly denied waiver of recovery of the overpayment of 

compensation in the amount of $41,759.19.18

 

14 5 U.S.C. § 8129.

15 20 C.F.R. § 10.438.

16 Supra note 14.

17 Supra note 15.

18 See S.M., Docket No. 17-1802 (issued August 20, 2018).
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LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations provides in pertinent part: 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 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 any hardship.19

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly required recovery of the overpayment of 

compensation by deducting $500.00 every 28 days from appellant’s continuing compensation 

payments.

Although OWCP provided appellant an overpayment recovery questionnaire (Form 

OWCP-20) with the November 3, 2017 preliminary determination, he did not submit a completed 

overpayment recovery questionnaire or other financial information that OWCP requested prior to 

the final July 10, 2018 overpayment decision. The overpaid individual is responsible for providing 

information about income, expenses, and assets as specified by OWCP.20 When an individual fails 

to provide requested financial information, OWCP should follow minimum collection guidelines 

designed to collect the debt promptly and in full.21 As appellant did not submit the financial 

information to OWCP as requested, the Board finds that there is no evidence of record to establish 

that OWCP erred in directing recovery of the $41,759.19 overpayment at the rate of $500.00 every 

28 days.22

CONCLUSION

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

$41,759.19 for the period March 1, 2013 through October 14, 2017, that OWCP properly denied 

waiver of recovery of the overpayment, and that it properly required recovery by deducting 

$500.00 every 28 days from appellant’s continuing compensation payments.

 

19 20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

20 Id. at § 10.438.

21 Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Overpayment Actions, Chapter 6.200.4(c)(2) (May 2004).

22 See E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued March 2, 2017). 
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ORDER

IT IS HEREBY ORDERED THAT the July 10, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 12, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board