United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

U.S. POSTAL SERVICE, INCOMING MAIL 

CENTER, Boston, MA, Employer

__________________________________________

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Docket No. 17-0181

Issued: August 12, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 3, 2016 appellant filed a timely appeal from a September 7, 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 to consider the merits of this case.

ISSUES

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

amount of $22,729.08 for the period April 1, 2014 to December 12, 2015, for which he was not at 

fault, because he concurrently received FECA wage-loss compensation benefits and Social 

Security Administration (SSA) age-related retirement benefits without an appropriate offset; 

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

OWCP properly required recovery of the overpayment by deducting $300.00 from appellant’s 

continuing compensation payments every 28 days.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 9, 2001 appellant, then a 63-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on April 6, 2001 he twisted and injured both knees while in the 

performance of duty. OWCP accepted the claim for right knee strain, a left knee contusion/blunt 

trauma, and an aggravation of osteoarthritis of the bilateral knees. It paid appellant wage-loss 

compensation for intermittent periods of total disability.2

On April 10, 2008 appellant underwent a right total knee replacement and on 

September 23, 2008 he underwent a left total knee replacement. OWCP paid him wage-loss 

compensation for total disability on the periodic rolls from April 13, 2008 until May 9, 2009, and 

then on the supplemental rolls until October 22, 2011. On October 27, 2011 it accepted that 

appellant had sustained a recurrence of a medical condition on August 5, 2011. OWCP paid him

wage-loss compensation for total disability on the periodic rolls beginning October 23, 2011. 

In a letter dated October 14, 2014, OWCP advised appellant that his Federal Employees 

Retirement System (FERS) benefits would be reduced by the amount of SSA benefits that he 

received based on his age that were attributable to his federal service. It provided him with an 

election form.

In a Form CA-1032 dated March 18, 2015, appellant indicated that he received $1,909.60 

in retirement benefits monthly from SSA as part of an annuity for federal service. 

On October 2, 2015 SSA forwarded a FERS/SSA dual benefit calculation form. The form 

indicated that with FERS appellant was entitled to a monthly payment of $1,865.00 effective 

April 2014, $1,897.00 effective December 2014, and $1,909.00 effective January 2015. Without 

his federal service contributions, he was entitled to a monthly payment rate of $773.00 effective 

April 2014, $786.00 effective December 2014, and $786.00 effective January 2015. 

By letter dated December 22, 2015, OWCP advised appellant that it was adjusting his 

wage-loss compensation effective December 13, 2015 to offset the portion of his SSA age-related 

retirement benefits attributable to his federal service. It informed him that the portion of the SSA 

benefits that he earned as a federal employee was part of the FERS retirement package and that 

FECA did not allow the simultaneous receipt of workers’ compensation and federal retirement 

benefits.

On December 23, 2015 OWCP calculated the overpayment by determining the difference 

between appellant’s SSA amount with and without FERS for each period and then multiplying that 

amount by the number of days in each period. For the period April 1 to November 30, 2014, it 

multiplied the number of days, 244, by the offset amount of $1,092.00 to find an overpayment of 

$9,516.00. OWCP multiplied the 31 days from December 1 to 31, 2014 by an offset amount of 

$1,111.00 to find an overpayment of $1,230.04, and multiplied 346, the number of days from 

 

2 OWCP previously accepted that appellant had sustained internal derangement of the right knee due to a March 16, 

1995 employment injury, under subsidiary File No. xxxxxx723.
3

January 1 to December 12, 2015, by the offset amount of $1,123.00, to find an overpayment of 

$13,877.07. It added the overpayment amounts to find a total overpayment of $24,623.11.

On January 22, 2016 OWCP notified appellant of its preliminary determination that he 

received an overpayment of compensation in the amount of $24,623.11 as it paid him 

compensation benefits for the period April 1, 2014 to December 12, 2015 that had not been reduced 

by the portion of his SSA age-related retirement benefits attributable to his federal service. It

further advised him of its preliminary determination that he was without fault in creating the 

overpayment. OWCP requested that appellant complete the enclosed overpayment recovery 

questionnaire (Form OWCP-20) and submit supporting financial documentation. Additionally, it

notified him 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.

On February 10, 2016 appellant requested a prerecoupment hearing. In response to the

Form OWCP-20, he indicated that he had monthly income of $4,876.00 and listed expenses. 

Appellant advised that he had $21,000.00 in a savings account.

A prerecoupment hearing was held on June 24, 2016. Appellant related that he had 

received retirement benefits from SSA beginning April 1, 2014. He indicated that he used credit 

cards to buy gasoline, clothing, and cigarettes. Appellant advised that he had money in his Thrift 

Savings Plan (TSP).

In an overpayment recovery questionnaire dated July 11, 2016, appellant advised that he 

had $120,000.00 in his TSP and total liquid assets of $142,800.00. He also owned a condominium 

that was worth approximately $65,000.00. Appellant provided his monthly income as $4,846.00. 

He listed expenses as $1,398.00 for a mortgage, $450.00 for food, $150.00 for clothing, $483.00

for utilities, and $650.00 in other expenses, including $300.00 per month for cigarettes. Appellant 

further advised that he paid $206.00 per month for television, $50.00 per month for a newspaper, 

$300.00 a year for pet care, $15.00 a month for a gym membership, $1,800.00 per year for car 

insurance, and $2,200.00 a year for home insurance. He also provided expenses for his second 

home of $310.00 for insurance, $245.00 a month in fees, and $446.00 a year for appliance 

insurance. Appellant listed the total amount owed on credit cards and advised that he paid what 

he could monthly.3 He indicated that he had assets in cash, bank accounts, and his TSP of 

$142,800.00.

By decision dated September 7, 2016, OWCP’s hearing representative modified the 

amount of overpayment to find that appellant received a $22,729.08 overpayment of compensation 

for the period April 1, 2014 to December 12, 2015 because OWCP did not offset his compensation 

by the SSA age-related retirement benefits he earned as a result of his federal service. She 

calculated the monthly FERS offset amount and then converted that amount to the 28-days FERS 

offset amount for each period. After determining the daily offset amount, the hearing 

representative multiplied this amount by the number of days in each period and added the total to 

find a total overpayment of $22,729.08. She determined that appellant was precluded from waiver

of recovery of the overpayment as his monthly income of $4,846.00 exceeded his monthly 

 

3

In a list of monthly payments dated June 24, 2016, appellant related that he made monthly payments on various 

credit cards totaling $620.00.
4

expenses by more than the allowed amount. The hearing representative reduced his listed monthly 

expenses to $4,227.00 after excluding the monthly amount he paid for cigarettes and credit card 

debt as it was used to buy items already considered. She ordered recovery of the overpayment by 

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

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 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 OWCP to reduce the 

amount of compensation by the amount of any SSA age-related retirement benefits that are 

attributable to the employee’s federal service.6 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.7

ANALYSIS -- ISSUE 1

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

$22,729.08 for the period April 1, 2014 to December 12, 2015, for which he was not at fault,

because he concurrently received FECA benefits and SSA age-related retirement benefits without 

an appropriate offset.

SSA paid appellant age-related benefits retirement beginning April 1, 2014. OWCP paid 

him wage-loss compensation until December 12, 2015 without offsetting the portion of the SSA 

age-related retirement benefits due to his federal service. As discussed, a claimant cannot receive 

both compensation for wage loss and the portion of SSA age-related retirement benefits that are 

attributable to his federal service for the same period.8 Appellant received SSA benefits based on 

his federal service concurrently with disability compensation from OWCP without an appropriate 

offset and thus received an overpayment of compensation.

To determine the amount of the overpayment, OWCP must calculate the portion of the 

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

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6 20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); 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).

8

Id.; see also L.G., Docket No. 19-1274 (issued July 10, 2020).
5

providing appellant’s SSA rate with FERS and without FERS for the period April 1, 2014 through 

December 12, 2015. OWCP’s hearing representative calculated the amount that OWCP should 

have offset during the relevant period based on the information provided by SSA. The hearing 

representative modified the amount of the overpayment by reducing appellant’s monthly SSA 

monthly benefit attributable to federal service to a 28-day benefit, which was then subtracted from 

appellant’s FECA benefits, which he received every 28 days. No contrary evidence was provided. 

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

April 1, 2014 through December 12, 2015 and finds that an overpayment of compensation in the 

amount of $22,729.08 was created.9

On appeal appellant questions why the amount of the overpayment exceeds his credit card 

debt. However, OWCP properly determined the amount of the overpayment based on information 

provided by SSA regarding the rates of his age-related retirement benefits attributable to his federal 

service.

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.”

10

(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result 

in waiver of the overpayment. OWCP must then exercise its discretion to determine whether 

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

good conscience.11

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of 

FECA if recovery would cause hardship because the beneficiary needs substantially all of his 

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.12 An individual’s liquid assets include but 

are not limited to case, the value of stocks, bonds, savings accounts, mutual funds and certificates 

of deposits.13 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 and supplies.14 

 

9 LG., id.; R.B., Docket No. 19-0571 (issued June 12, 2020).

10 5 U.S.C. § 8129(a)-(b).

11 L.S., 59 ECAB 350 (2008).

12 20 C.F.R. § 10.436. OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an 

individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. 

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) 

(June 2009).

13 Federal (FECA) Procedure Manual, id. at Chapter 6.200.6(a)(1) (June 2009).

14 Id. at Chapter 6.200.6(a)(4).
6

OWCP’s procedures in effect at the time of the September 7, 2016 decision provided that 

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

individual with a spouse or dependent plus $960.00 for each additional dependent.15 An 

individual’s liquid assets include, but are not limited, to cash, the value of stocks, bonds, savings 

accounts, mutual funds, and certificates of deposits.16 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 and supplies.17

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 position for the worse.18 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.19

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the 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.20

The Board finds that OWCP properly determined that appellant did not require 

substantially all of his income to meet ordinary and necessary living expenses. The hearing 

representative found, after subtracting expenses for cigarettes and expenses that duplicated those 

already listed, that he had monthly income of $4,846.00 and monthly expenses of $4,227.00, and 

that consequently his income exceeded his expenses by more than the allotted amount. As 

appellant’s monthly income exceeds his ordinary and necessary living expenses by more than 

$50.00, the Board finds that he did not need substantially all of his income for ordinary and 

necessary living expenses.21 Further, the Board notes that he is not entitled to waiver as his assets 

of $142,800.00 exceed the resource base of $8,000.00. A claimant’s contributions to TSP and 

 

15 Id. at Chapter 6.200.6(a)(1)(b).

16 Id.

17 Id.

18 20 C.F.R. § 10.437.

19 Id. at § 10.437(b)(1).

20 Id. at. § 10.436.

21 See M.C., Docket No. 19-0699 (issued February 12, 2020).
7

earnings from those contributions are considered to be assets which OWCP may consider in 

determining waiver.22 A second home owned by appellant is also included in calculating assets.23

Additionally, the evidence does not demonstrate that repayment of the overpayment would 

be against equity and good conscience. Appellant submitted no evidence that he relied upon the 

incorrect payments to his detriment or that he would experience severe financial hardship 

attempting to repay the debt. Consequently, OWCP properly denied waiver of the overpayment.24

On appeal appellant argues that he is unable to repay the overpayment without financial 

hardship. He also notes that he was without fault in creating the overpayment. A finding that 

appellant was without fault, however, does not automatically result in waiver of the overpayment.25 

OWCP must determine whether recovery of the overpayment without defeat the purpose of FECA 

or be against equity and good conscience. As explained, OWCP properly denied waiver as 

recovery would not defeat the purpose of FECA or be against equity and good conscience.

Appellant maintains that he used his SSA benefits to pay his credit card debt. He did not, 

however, submit any evidence to OWCP prior to its decision showing that he detrimentally relied 

upon the payments. 

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations26 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 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.27

ANALYSIS -- ISSUE 3

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

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

The record supports that, in requiring repayment of the overpayment by deducting $300.00 

from appellant’s compensation payments every 28 days, OWCP took into consideration the 

financial information he submitted as well as the factors set forth in 20 C.F.R. § 10.441 and found 

 

22 See H.F., Docket No. 17-0101 (issued September 5, 2017); C.W., Docket No. 11-1338 (issued 

December 19, 2011).

23 Federal (FECA) Procedure Manual, supra note 12 at Chapter 6.200.6(a)(4) (June 2009).

24 See supra note 21; see also B.S., Docket No. 16-0712 (issued November 7, 2016).

25 See C.P., Docket No. 19-1935 (issued July 1, 2020); R.G., Docket No. 15-0144 (issued July 27, 2016).

26 20 C.F.R. § 10.441(a).

27 Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).
8

that this method of recovery would minimize resulting hardship. Therefore, OWCP properly 

required recovery of the overpayment by deducting $300.00 from appellant’s continuing 

compensation payments every 28 days.

28

CONCLUSION

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

$22,729.08 for the period April 1, 2014 to December 12, 2015, for which he was not at fault,

because he concurrently received FECA benefits and SSA age-related retirement benefits without 

an appropriate offset. The Board further finds that OWCP properly denied waiver of recovery of 

the overpayment and properly required recovery of the overpayment by deducting $300.00 from 

his continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the September 7, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 12, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

28 See L.G., Docket No. 19-1274 (issued July 10, 2020).