United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.D., Appellant 

and 

DEPARTMENT OF THE INTERIOR, BUREAU 

OF LAND MANAGEMENT, Boise, ID, Employer 

__________________________________________ 

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Docket No. 15-0032 

Issued: March 11, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 6, 2014 appellant filed a timely appeal from a July 18, 2014 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. 

ISSUES 

The issues are: (1) whether OWCP properly found an overpayment of $4,106.06 was 

created; and (2) whether OWCP properly denied waiver of the overpayment. 

FACTUAL HISTORY 

On December 29, 2000 appellant, then a 52-year-old equipment operator, filed a 

traumatic injury claim (Form CA-1) alleging that he sustained a lower back injury in the 

performance of duty on November 8, 2000. He indicated on the claim form that a tractor he was 

 1

 5 U.S.C. § 8101 et seq. 
2

operating dropped into a hole. On January 8, 2001 OWCP accepted a herniated disc. The record 

indicates that appellant began receiving wage-loss compensation for total disability on the 

periodic rolls. By decision dated March 6, 2006, OWCP denied a claim for a consequential 

emotional condition. 

On August 1, 2013 OWCP sent appellant an EN1032 form requesting information as to 

employment, dependents, and receipt of other federal benefits. In a memorandum of telephone 

call (Form CA-110) dated August 5, 2013, it indicated that he was unsure as to whether he was 

under the Federal Employees’ Retirement System (FERS) for the purposes of completing the 

EN1032 form. On August 13, 2013 the employing establishment stated that it had no records 

with respect to appellant’s retirement. Appellant submitted an August 4, 2013 EN1032 form and 

did not respond to a question as to receipt of Social Security Administration (SSA) benefits as 

part of an annuity for federal service. 

In a letter dated August 22, 2013, OWCP requested that appellant provide any 

information regarding retirement benefits and SSA benefits. By Form CA-110 dated 

November 13, 2013, it stated that he was covered under FERS, according to the employing 

establishment. OWCP requested that the SSA provide information regarding receipt of SSA 

benefits. 

On May 9, 2014 OWCP received a response from SSA indicating that the effective date 

was April 2013, with the SSA rate with FERS at $1,433.60, and without FERS $1,122.40. As of 

December 2013, the SSA rate with FERS was $1,455.10 and without FERS $1,139.40. The 

record contains an OWCP “FERS Offset Calculation” worksheet dated May 13, 2014. The 

worksheet finds an overpayment of $2,503.28 from April 1 to November 30, 2013, and 

$1,602.78 from December 1, 2013 to May 4, 2014. 

By letter dated June 11, 2014, OWCP made a preliminary determination that an 

overpayment of $4,106.06 was created between April 1, 2013 and May 4, 2014. It found that 

appellant was not at fault in creating the overpayment and requested that he complete the 

enclosed OWCP-20 overpayment questionnaire and submit supporting financial documents. No 

response was received. 

In a decision dated July 18, 2014, OWCP finalized its determination that an overpayment 

of $4,106.06 was created. It denied waiver as appellant had not submitted any relevant financial 

evidence to establish waiver of the overpayment. 

LEGAL PRECEDENT -- ISSUE 1 

5 U.S.C. § 8116(d)(2) requires that compensation benefits be reduced by “the amount of 

any such [SSA] benefits payable that are attributable to Federal service.” OWCP’s procedures 

provide that, while SSA benefits are payable concurrently with FECA benefits, in disability 

cases, FECA benefit will be reduced by SSA benefits paid on the basis of age and attributable to 

the employee’s federal service.2 OWCP obtains information from SSA on the amount of the 

claimant’s benefits beginning with the date of eligibility to FECA benefits. SSA will provide the 

 2

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (June 2009). 
3

actual amount of SSA benefits received by the claimant/beneficiary. It will also provide a 

hypothetic SSA benefit computed without FERS covered earnings. OWCP will then deduct the 

hypothetical benefit from the actual benefit 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 compensation payable.3 

ANALYSIS -- ISSUE 1 

In the present case, the record indicates that appellant was receiving wage-loss 

compensation for total disability based on November 8, 2000 employment injury. Appellant 

retired, and according to the SSA, he was covered under FERS and began receiving retirement 

benefits as of April 1, 2013. As noted above, FECA benefits must be reduced by the many SSA 

benefits paid on the basis of age and attributable to the employee’s federal service. For the 

periods of April 1 to November 30, 2013 and December 1, 2013 to May 4, 2014, appellant’s 

FECA benefits had not been reduced. Therefore, an overpayment of compensation was created. 

The SSA provided the SSA rate with FERS and the hypothetical SSA rate without FERS. 

The difference between the amounts must be deducted from FECA benefits, as noted above. 

Based on the information provided by the SSA, OWCP determined that for the period April 1, 

2013 to May 4, 2014, $4,106.06 should have been deducted from appellant’s continuing 

wage-loss compensation. No contrary evidence was presented. The Board accordingly finds 

that the record supports a finding that an overpayment of $4,106.06 was created in this case. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(b) of FECA4

 provides: “Adjustment or recovery 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 [FECA] or would be against equity 

and good conscience.”5 Since OWCP found appellant to be without fault in the creation of the 

overpayment, OWCP may only recover the overpayment if recovery would neither defeat the 

purpose of FECA nor be against equity and good conscience. The guidelines for determining 

whether recovery of an overpayment would defeat the purpose of FECA or would be against 

equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of 

Federal Regulations. 

According to section 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 or 

her current 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 

 3 See R.C., Docket No. 14-1383 (issued December 5, 2014); citing FECA Bulletin No. 97-09 (issued 

February 3, 1997). See also P.G., Docket No. 13-589 (issued July 9, 2013). 

4 Supra note 1. 

5

 5 U.S.C. § 8129(b). 
4

determined by OWCP from data provided by the Bureau of Labor Statistics.6 For waiver under 

the “defeat the purpose” of FECA standard, appellant must show that he needs substantially all 

of his current income to meet current ordinary and necessary living expenses, and that his assets 

do not exceed the resource base.7

 

Section 10.437 provides that recovery of an overpayment would be against equity and 

good conscience if: (a) the overpaid individual would experience severe financial hardship in 

attempting to repay the debt; (b) the 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. 

With respect to the submission of financial evidence, OWCP regulations at 20 C.F.R. 

§ 10.438 provide: 

“(a) 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. 

“(b) 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.” 

ANALYSIS -- ISSUE 2 

In the present case, OWCP sent appellant an OWCP-20 form and indicated that he 

needed to complete the form and submit supporting financial documentation. As noted above, it 

is his responsibility to submit the requested financial evidence. The record indicated that 

appellant did not submit any financial evidence prior to the July 18, 2014 OWCP final decision. 

Under OWCP regulations at 20 C.F.R. § 10.438, failure to submit the requested information in a 

timely manner shall result in denial of waiver. The Board finds that OWCP properly denied 

waiver in this case. 

On appeal, appellant states that he contacted OWCP in July 2013 to make sure that there 

was not an overpayment. He stated that the overpayment should be waived. The Board notes 

that OWCP found that appellant was not at fault in creating the overpayment. Since he is not at 

fault, appellant could be eligible for waiver of the overpayment. However, OWCP cannot make 

a proper determination as to waiver unless he submits relevant financial evidence, which would 

allow OWCP to make a determination as to whether recovery would defeat the purpose of FECA 

 6

 OWCP procedures provide 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. Federal (FECA) 

Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009). 

7 See Robert E. Wenholz, 38 ECAB 311 (1986). 
5

or be against equity and good conscience. It properly denied waiver in this case. Appellant may 

submit relevant evidence and request waiver, as indicated in 20 C.F.R. § 10.438(b). 

CONCLUSION 

The Board finds that an overpayment of $4,106.06 was created during the period April 1, 

2013 to May 4, 2014. OWCP properly denied waiver as appellant did not submit any relevant 

financial evidence. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated July 18, 2014 is affirmed.8 

Issued: March 11, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 8

 James A. Haynes, Alternate Judge, participated in the original decision, but was no longer a member of the 

Board effective November 16, 2015.