United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.B., Appellant

and

U.S. POSTAL SERVICE, WILLIAMSBRIDGE

STATION, Bronx, NY, Employer

__________________________________________

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Docket No. 18-0795

Issued: January 4, 2019

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

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 March 5, 2018 appellant, through counsel, filed a timely appeal from a September 25, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(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 OWCP properly determined that appellant received a 

$69,227.73 overpayment of compensation as he concurrently received Social Security 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

Administration (SSA) age-based benefits while receiving FECA benefits for the period August 1, 

2011 to December 10, 2016; (2) whether OWCP properly denied waiver of recovery of the 

overpayment; and (3) whether OWCP properly determined that it would recover the overpayment 

by deducting $500.00 per month from appellant’s continuing compensation payments every 28 

days.

FACTUAL HISTORY

On May 30, 2008 appellant, then a 60-year-old city mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that day he suffered various injuries as the result of an assault 

by a postal customer. OWCP accepted the claim for brachial radiculitis or neuritis, right shoulder 

traumatic arthropathy, postconcussion syndrome, other bilateral shoulder region affections, 

headache, cervicalgia, and neck and lumbar sprains. Appellant stopped work on May 30, 2008

and OWCP placed him on the periodic rolls for temporary total disability effective 

November 7, 2008. 

In a form dated December 14, 2016, the SSA advised OWCP that appellant had 

concurrently received FECA benefits and retirement benefits through the Federal Employees 

Retirement System (FERS) for the periods August 11, 2011 to December 10, 2016. It provided 

the amount that he received in retirement benefits including the amount earned through FERS and 

the hypothetical amount that he would have received without FERS. Including FERS, the SSA

indicated that appellant was entitled to a monthly payment of $1,667.90 effective August 2011, 

$1,727.80 effective December 2011, $2,083.90 effective October 2013, $2,084.70 effective

December 2013, $2,120.10 effective December 2014 and December 2015, and $2,126.40 effective 

December 2016. Without FERS, appellant was entitled to a monthly payment of $751.50 effective 

August 2011, $778.50 effective December 2011, $925.40 effective October 2013, $939.20 

effective December 2013, $955.10 effective December 2014 and December 2015, and $957.90

effective December 2016. 

In a January 4, 2017 letter, OWCP adjusted appellant’s compensation to offset the portion 

of his SSA retirement benefits attributable to his federal service. It indicated that he would receive 

net compensation of $1,760.19 every 28 days. 

In a preliminary determination dated January 9, 2017, OWCP notified appellant that he had 

received an overpayment of compensation in the amount of $69,227.73 because it had failed to 

reduce his compensation benefits for the period August 1, 2011 to December 10, 2016 by the

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

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

FERS for each period. OWCP then multiplied the daily offset amount for the period in question 

to find a total overpayment of $69,227.73. It further made a preliminary determination that 

appellant was with fault in the creation of the overpayment as he was aware or reasonably should 

have been aware that the payments he received were not properly offset. OWCP requested that he 

complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit 

supporting financial documentation. Additionally, it 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. 
3

On January 12, 2017 appellant requested a prerecoupment hearing by a hearing 

representative of OWCP’s Branch of Hearings and Review. He also requested waiver of recovery 

of the overpayment and submitted one-page overpayment recovery questionnaire noting no assets. 

On February 8, 2017 OWCP received appellant’s completed overpayment recovery 

questionnaire listing monthly income of $4,471.19 for him and his wife. A separate page detailed 

income of $1,965.00 in SSA benefits and $1,760.90 FECA benefits for appellant and $748.00 SSA 

benefits for his wife, resulting in total income of $4,473.19. Appellant noted no assets and that he 

lived from disability check to disability check. He listed monthly expenses of $50.00 to offset an

SSA overpayment, $1,471.82 for mortgage, $151.28 for gas, $120.15 for electricity, $126.42 for 

water system, $119.77 for internet phone, $351.77 for cable, $81.04 for cellular phone, $98.43 for 

Sirius XM radio, $95.29 for American Family Home Insurance, $90.00 for Campanion Life 

Insurance, $400.00 for food and house and supplies, $211.51 for Macy’s credit card, $250.00 for

Sears medical card, $79.55 for Physician Mutual, $122.00 for wife’s Medicare insurance, $133.00 

for supplementary Mutual of Omaha Insurance, $122.00 for his Medicare insurance, $418.35 for 

his FECA health care deduction, and $375.00 for clothing. Appellant reported biweekly expense 

of $45.00 for trash, quarterly expenses $119.28 for John Hancock Life Insurance, $129.79 and 

$175.55 for CUNA Life insurance, $83.88 for service agreement contract, and $136.71 for Tru 

Surge Life Insurance, biyearly expense of $235.64 for landscaping, and yearly expenses of 

$1,487.00 for home owners insurance, $310.00 for home owners association fee and $1,144.37 for 

property tax, resulting in total monthly expenditure of $5,383.22.

A telephonic prerecoupment hearing was held on July 12, 2017. Appellant reiterated his 

request for waiver of recovery of the overpayment and the hearing representative held the case 

record open for 30 days for the submission of additional evidence including bank statements.

On August 10 and 14, 2017 OWCP received copies of bank statements for two accounts. 

Balances for one bank account ranged from $5,019.02 to $6,459.66 for the period March 31 to 

July 10, 2017 and the second account ranged from -$44.32 to $2,318.31 for the period January 4 

to July 7, 2017. 

By decision dated September 25, 2017, the hearing representative affirmed and modified 

the decision of OWCP. She found an overpayment of FECA compensation benefits in the amount 

of $69,227.73 for the period August 1, 2011 to December 10, 2016 because OWCP failed to offset 

appellant’s compensation payments for the portion of his SSA retirement benefits that were 

attributable to his federal service. The hearing representative found that he was not with fault in 

the creation of the overpayment, but denied waiver of recovery as his income exceeded his 

expenses. She excluded duplicate expenses for property taxes and home insurance as these 

expenses were included in mortgage escrow payments. The hearing representative reduced credit 

card expenses from the full amount to the minimum monthly payment of $27.00 and $25.00. With 

respect to the clothing monthly expense of $375.00, she found that this appeared to be covered in 

credit card expense and was otherwise not supported. The hearing representative noted that 

appellant’s Direct TV bill varied monthly from $225.00 to $351.00. She further found that 

monthly grocery expenses of $400.00 were reasonable. The hearing representative found that the 

evidence supported appellant’s monthly income of $4,473.19 and monthly expenses of $3,420.00. 

A review of bank statements from two accounts, revealed an approximate average balance of 

$500.00 to $2,000.00 and the second account had an average balance of $6,000.00 to 8,000.00. 
4

Thus, the hearing representative found that appellant had monthly discretionary income of 

“approximately $1,000.00” and did not qualify for hardship waiver. Lastly, she determined that 

recovery of the overpayment would be made by deducting $500.00 per month from his 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 duty.3 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.4

Section 10.421(d) of the 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.5 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.6

Section 404.310 of SSA regulations provides that entitlement to SSA age-based 

compensation begins at 62 years.7 Section 404.409 of SSA regulations provides that for 

individuals born between January 2, 1943 and November 1, 1955, full retirement age is 66 years.8

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $69,227.73.

OWCP found that an overpayment of compensation was created in the amount of 

$69,227.73 for the period August 1, 2011 to December 10, 2016. The overpayment was based on 

the evidence received from SSA with respect to benefits paid to appellant. The record indicates 

that while appellant was receiving compensation for total disability under FECA he concurrently 

received SSA age-based retirement benefits. A claimant cannot receive both compensation for 

wage loss and SSA retirement benefits attributable to federal service for the same period.9 The 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); see C.S., Docket No. 17-0167 (issued April 11, 2018); L.J., 59 ECAB 264 (2007).

6 FECA Bulletin No. 97-09 (issued February 3, 1997).

7 20 C.F.R. § 404.310.

8

Id. at § 404.409(a).

9 Supra notes 5 and 6.
5

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

attributable to federal service during the period August 1, 2011 to December 10, 2016.

To determine the amount of the overpayment, the portion of the SSA benefits that were 

attributable to federal service were calculated. OWCP received evidence from SSA with respect 

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

service. The SSA provided the SSA rate with FERS, and without FERS, for specific periods 

commencing in August 1, 2011 to December 10, 2016. OWCP provided its calculations for each 

relevant period based on the SSA worksheet.10 Counsel has not contested the amount of the 

$69,227.73 overpayment and no contrary evidence has been provided to show that OWCP’s

calculations were incorrect. The Board has reviewed OWCP’s calculation of benefits received by 

appellant for the period August 1, 2011 to December 10, 2016 and finds that an overpayment of 

compensation in the amount of $69,227.73 was created.

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.”

11

 Thus, a 

finding that appellant was without fault does not automatically result in waiver of recovery 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.12

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 or 

her 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.13 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.14 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/supplies, 

vehicle(s) (i.e., any vehicles above the two allowed per immediate family), jewelry, and artwork.15

 

10 See E.K., Docket No. 18-0587 (issued October 1, 2018). 

11 5 U.S.C. § 8129(a)-(b).

12 See L.S., 59 ECAB 350 (2008).

13 20 C.F.R. § 10.436. OWCP procedures provide that an individual is deemed to need substantially all of his or 

her current income to meet current ordinary and necessary living expenses if the monthly income does not exceed 

monthly expense by more than $50.00. 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).

14 Id.

15 Id.
6

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 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.17

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $69,227.73 

overpayment of compensation.

The hearing representative found that appellant was without fault in the creation of the 

overpayment of compensation. The overpayment cannot be waived, however, unless recovery 

would defeat the purpose of FECA or would be against equity and good conscience. In order to 

establish that repayment of the overpayment would defeat the purpose of FECA, appellant must 

show that he requires substantially all of his income to meet current ordinary and necessary living 

expenses and that his assets do not exceed the resource base as determined by OWCP’s 

procedures.18

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because he has not shown both that he needs substantially all of his current income to 

meet ordinary and necessary living expenses or that his assets do not exceed a specified amount as 

determined by OWCP from data provided by the Bureau of Labor Statistics. OWCP procedures 

provide that an individual is deemed to need substantially all of his or her current income to meet 

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

expenses by more than $50.00, i.e., the amount of monthly funds available for debt repayment is 

the difference between current income and adjusted living expenses plus $50.00.19 Appellant 

submitted an overpayment recovery questionnaire on February 8, 2017 and copies of bank 

statements for two accounts on August 10 and 14, 2017.

The hearing representative determined that appellant did not require substantially all of his 

income to meet ordinary and normal living expenses. Appellant asserted that he had a monthly 

income of $4,473.19 and monthly expenses of $5,383.22. OWCP excluded his expenses for 

property taxes and home insurance as they were already accounted for in his mortgage and clothing 

expense as covered by his credit card.

20

 The hearing representative also divided outstanding credit

card payments by 12 to obtain monthly amounts and determined that the minimum monthly 

 

16 20 C.F.R. § 10.437.

17 Id. at § 10.437(b)(1).

18 Id. at § 10.436.

19 Supra note 13.

20 Supra note 13 at Chapter 6.200.6(a)(3) (June 2009);see also J.W., Docket No. 16-1355 (issued January 10, 2017).
7

payments due of $24.00 and $55.00, respectively.

21

 She properly determined that appellant’s 

monthly expenses totaled $3,420.00.

The hearing representative found that appellant’s monthly income of $4,473.19 and his 

monthly expenses of $3,420.00 yielded a monthly surplus amount of “approximately $1,000.00.”

An individual is deemed to need substantially all of his or her monthly income to meet current and 

ordinary living expenses if monthly income does not exceed monthly expenses by more than 

$50.00.22 As appellant’s current income exceeds his ordinary and necessary living expenses by at 

least $1,000.00, he does not need substantially all of his income for ordinary and necessary living 

expenses.23

Additionally, the evidence of record 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.24 Consequently, OWCP properly denied waiver of recovery 

of the overpayment.

Counsel asserts that repayment would cause financial hardship and was supported by the 

record. However, as found by the Board, the evidence does not demonstrate that appellant would 

experience financial hardship repaying the overpayment. 

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.25

Section 10.441(a) of the regulations 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 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.26

 

21 See N.A., Docket No. 17-0794 (issued July 3, 2018). 

22 Supra note 13 at Chapter 6.200.6(a)(1); see also Desiderio Martinez, 55 ECAB 336 (2004).

23 As appellant’s income exceeds his ordinary and necessary living expenses by more than $50.00, it is not necessary 

for OWCP to consider whether his assets exceed the allowable resource base. See J.W., supra note 20. 

24 20 C.F.R. § 10.437.

25 See Lorenzo Rodriguez, 51 ECAB 295 (2000).

26 20 C.F.R. § 10.441(a).
8

ANALYSIS -- ISSUE 3

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

a rate of recovery of $500.00 each 28 days from appellant’s continuing compensation payments. 

The record indicates that appellant’s monthly income exceeds his reported monthly expenses by 

approximately $1,000.00 per month. OWCP therefore did not abuse its discretion in finding that 

he should repay the overpayment at the rate of $500.00 per compensation period.27

CONCLUSION

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

of compensation in the amount of $69,227.73. The Board further finds that OWCP properly denied 

waiver of recovery of the overpayment and required recovery of the overpayment by deducting 

$500.00 every 28 days from his continuing compensation payments.

ORDER

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

Programs dated September 25, 2017 is affirmed.

Issued: January 4, 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

 

27 N.S., Docket No. 14-2081 (issued February 12, 2015).