United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Ponte Vedra, FL, Employer

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Docket No. 17-1664

Issued: December 17, 2018

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 July 26, 2017 appellant timely appealed from a July 6, 2017 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 appellant’s case.

ISSUES

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

amount of $3,888.45 for the period September 1 through December 13, 2015; and (2) whether 

OWCP properly denied waiver of recovery of the overpayment.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

Appellant, then a 63-year-old city carrier, injured his right shoulder in the performance of 

duty on February 24, 2015. OWCP accepted appellant’s claim for disorder of bursae and tendons 

in shoulder region, unspecified, right; other affections of shoulder region, not elsewhere classified, 

right; sprain of shoulder and upper arm, other specified sites, right; and villonodular synovitis, 

shoulder region, right.

OWCP paid wage-loss compensation for temporary total disability and beginning

August 4, 2015 placed appellant on the periodic compensation rolls.

Appellant was born in January 1952. When he reached age 62 in 2014, he was eligible to 

receive age-related social security retirement benefits. Appellant began receiving benefits 

effective September 1, 2015. The record indicates that he was subject to Federal Insurance 

Contributions Act (FICA) and Federal Employees’ Group Life Insurance (FEGLI) coverage 

withholding while a federal employee. 

Between March 5, 2016 and January 24, 2017, appellant regularly submitted annual 

statements (Form CA-1032) regarding his employment status, volunteer work, dependents, and 

other federal benefits received. He consistently denied receiving benefits from the Office of 

Personnel Management (OPM). In his March 5, 2016 statement, appellant indicated that he 

received $1,761.00 per month beginning September 2015 through February 2016 from the Social 

Security Administration (SSA) based on his federal service. In his March 15, 2016 statement, he 

confirmed that he had received $1,761.00 per month. In his January 24, 2017 statement, appellant 

did not disclose receipt of SSA benefits.

On March 10, 2017 OWCP contacted SSA regarding the benefits of appellant.

On March 28, 2017 SSA advised OWCP that appellant was entitled to retirement benefits, 

payment of which began paying in September 2015.2 It provided a breakdown of appellant’s 

monthly SSA benefits that included contributions from his federal service (w/FERS), as well as a 

monthly benefit that excluded his federal service contributions (w/o FERS). Beginning 

September 2015, appellant’s total monthly SSA benefit was $1,761.00. The corresponding 

monthly amount excluding appellant’s federal service contributions was $794.20. SSA provided 

additional calculations for subsequent periods beginning December 2015 ($1,761.00/$794.20), 

January 2016 ($2,043.00/$919.60), and December 2016 ($2,049.00/$922.30). SSA also noted that 

appellant was entitled to disability benefits effective January 2016. 

Appellant returned to modified full-time work with the employing establishment on 

April 12, 2017. 

On April 27, 2017 OWCP issued a preliminary overpayment determination in the amount 

of $3,888.45 for the period September 1 through December 31, 2015 because he received full 

compensation, when that compensation should have been offset due to receipt of social security 

 

2 SSA noted that the FERS period began in 1981, and the computation date commenced from August 27, 2015 to 

the present.
3

retirement benefits that were partially based upon his civilian federal service. Additionally, it 

found that appellant was without fault in creating the overpayment. OWCP advised appellant that,

if he disagreed with fact or the amount of the overpayment, he had a right to submit new evidence 

in support of his belief. It also provided him an overpayment recovery questionnaire (OWCP-20) 

and informed appellant of his appeal rights.

Appellant timely requested a prerecoupment hearing, which OWCP’s Branch of Hearings 

and Review scheduled for June 29, 2017. At the hearing he indicated that the overpayment 

occurred through no fault of his own. Appellant explained that he received regular social security 

benefits for four of the five months of the mandatory minimum wait before his social security 

disability could be approved. He explained that it was reduced by approximately $75.00 per 

month, because he received regular social security benefits during the mandatory wait and that his 

regular old-age social security lifetime benefits would also be reduced by the $75.00 per month, 

which was approximately $560.00 based of his life expectancy of 79 years. On May 31, 2017

OWCP received appellant’s completed overpayment recovery questionnaire (OWCP-20). On 

June 22, 2017 appellant provided supporting documentation. 

Appellant indicated on his submissions that he had monthly income of $9,262.00, which 

included SSA, Army retirement benefits, and rental income. He indicated monthly expenses of

$6,023.00. Appellant noted the following: rent or mortgage, $3,013.00 per month; food, $500.00 

per month; clothing, $100.00 per month; utilities $300.00 per month; and miscellaneous expenses 

$250.00 per month. Additionally, he listed several loans for his car and residential loans tallying 

$1,383.00. Appellant listed assets of $23,290.00. As to the question of fault he explained that,

when he applied for SSA benefits, he informed them that he was on “workmens’ comp.” Appellant

indicated that they provided his payment. Furthermore, he underwent three shoulder surgeries and 

was approved for SSA disability effective January 1, 2016. However, the effective date of 

appellant’s disability was August 2015, but he had to wait five months. He explained that because 

he received regular benefits for four months, his social security benefits were reduced which was 

approximately, $7,560.00. Appellant explained that it seemed like a “double jeopardy.” He

provided supporting documentation which accompanied the questionnaire. 

At the June 29, 2017 prerecoupment hearing, the hearing representative found that monthly 

income after expenses was determined to be $2,981.54. Appellant was also found to have net 

assets of $27,114.00. 

By decision dated July 6, 2017, the hearing representative finalized OWCP’s preliminary 

determination regarding the fact and amount of the overpayment, as well as its finding that 

appellant was not at fault. Regarding appellant’s request for waiver of recovery, she noted that 

appellant had not provided justification for consideration of waiver. The hearing representative 

explained that the financial information received did not establish a basis for granting waiver of 

recovery 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 
4

performance of her federal employment.3 Section 8129(a) of FECA provides, in pertinent part: 

“When an overpayment has been made to an individual under this subchapter because of an error 

of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by 

decreasing later payments to which an individual is entitled.”

4

A FECA beneficiary may not receive wage-loss compensation concurrently with a Federal 

retirement or survivor annuity.5 To avoid payment of a dual benefit, FECA wage-loss 

compensation benefits shall be reduced by the amount of SSA benefits attributable to the

employee’s federal service.6

OWCP procedures provide that, while SSA benefits are payable concurrently with FECA 

benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by 

SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The 

offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as 

follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA 

on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits. 

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

will also provide a hypothetical 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 the overpayment.8

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision as to this issue.

The record establishes that appellant received age-related social security retirement

benefits at least partially attributable to his federal service beginning September 2015, in addition 

to FECA wage-loss compensation. Appellant is not entitled to simultaneously receive FECA 

wage-loss compensation and retirement benefits based on his federal service.9 On March 21, 2017 

SSA represented that a portion of appellant’s monthly retirement benefit was attributable to his 

federal service. Consequently, OWCP was obliged to offset appellant’s FECA wage-loss 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

5 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

6 5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995); Chapter 

2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); see R.C., Docket No. 09-2131 (issued April 2, 

2010) (OWCP does not require an election between FECA benefits and SSA benefits except when they are attributable 

to the employee’s federal service).

8 See V.T., Docket No. 18-0628 (issued October 25, 2018); L.B., Docket No. 11-2076 (issued August 29, 2012).

9 See supra note 3.
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compensation by the amount of SSA age-related retirement benefits attributable to his federal 

service.10

Although the Board finds that the fact of overpayment has been established, the case is not 

in posture for decision with respect to the amount of the overpayment. An OWCP decision “shall 

contain findings of fact and a statement of reasons.”

11

 As noted, the record establishes that 

appellant received age-related SSA retirement benefits, some of which were attributable to his 

federal service. However, it is not clear how the amount of the overpayment was derived. 

For example, beginning September 2015, appellant’s total monthly SSA benefit with FERS 

was $1,761.00, and the corresponding monthly amount excluding appellant’s federal service 

contributions was $794.20. SSA provided additional calculations for subsequent periods 

beginning December 2015 ($1,761.00/$794.20), January 2016 ($2,043.00/$919.60), and 

December 2016 ($2,049.00/$922.30). The SSA rate with FERS included payments of $1,761.00, 

$1,761.00, $2,043.00, and $2,049.00. This would equate to $7,614.00. The payments without 

FERS were noted as $794.20, $794.20, $919.60, and $922.30. By subtracting the SSA rate with 

FERS from the full SSA rate would equate to an overpayment in the amount of $2,336.10. 

($7,614.00 minus $2,336.10 = $5,277.90). The Board notes that it is unclear how the overpayment 

amount of $3,888.45 was determined with respect to the apportionment of federal service SSA 

benefits for the period September 2015 to December 2016.

Therefore, the Board is unable to make an informed determination as to whether OWCP’s 

finding regarding the amount of overpayment is accurate. Accordingly, the case shall be remanded 

to OWCP for further development regarding the appropriate SSA/FECA offset.

LEGAL PRECEDENT -- ISSUE 2

An individual who is without fault in creating or accepting an overpayment is nonetheless 

subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose of 

FECA or would be against equity and good conscience.12 Recovery of an overpayment will defeat 

the purpose of FECA if such recovery would cause hardship to a current or former beneficiary 

because the beneficiary from whom OWCP seeks recovery needs substantially all of his current

income, including compensation benefits, to meet current ordinary and necessary living expenses, 

and the beneficiary’s assets do not exceed a specified amount as determined by OWCP.13 

Additionally, 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 in 

attempting to repay the debt or when an individual, in reliance on such payment or on notice that 

 

10 5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

11 20 C.F.R. § 10.126.

12 5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

13 20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base 

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

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6a(1)(b) 

(June 2009). 
6

such payments would be made, relinquished a valuable right or changed his position for the 

worse.14

The individual who received the overpayment is responsible for providing information 

about income, expenses and assets as specified by OWCP.15 This information is necessary for 

determining whether a waiver of recovery of the overpayment is warranted.16 The information is 

also used to determine an appropriate repayment schedule, if necessary.17 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 overpayment. 

The hearing representative affirmed OWCP’s preliminary determination that appellant was 

not at fault in creating the overpayment. On May 31, 2017 OWCP received appellant’s completed 

overpayment recovery questionnaire (Form OWCP-20). On June 22, 2017 appellant provided 

supporting documentation. He indicated that he had monthly income of $9,262.00, which included 

SSA, Army retirement benefits, and rental income. Appellant indicated expenses, of $6,023.00.

He listed his assets as totaling $23,290.00. At the June 29, 2017 prerecoupment hearing, the 

hearing representative found that monthly income after expenses was determined to be $2,981.54. 

Appellant was also found to have net assets of $27,114.00. The Board finds that based on 

appellant’s representations at the prerecoupment hearing, the hearing representative properly 

determined that the circumstances of his case did not warrant a waiver of the recovery of the 

overpayment.

On appeal appellant asserts that he disagreed with the overpayment. He argues that the 

administrative actions have caused him to have a loss of almost $9,120.00 in social security 

benefits because he collected it for four months. Appellant also indicates that he generally 

understood the offset, which seemed “fair,” but the five-month waiting period should be excluded 

from the offset rule. He also noted that he was on OWCP compensation for almost 21 months and 

his payments prevented him from “financial ruins.” The Board notes that these arguments do not 

impact the fact that he received both FECA wage-loss compensation and SSA age-related 

retirement benefits based on his prior federal service. However, the amount of the overpayment 

is unclear and the case will be remanded to determine the amount.

 

14 Id. at § 10.437(a), (b).

15 Id. at § 10.438(a).

16 Id.

17 Id.

18 20 C.F.R. § 10.438(b).
7

CONCLUSION

The Board finds that, although OWCP properly determined fact of overpayment, this case 

is not in posture as to the amount of overpayment. The Board further finds that OWCP properly 

denied waiver of recovery of the overpayment. 

ORDER

IT IS HEREBY ORDERED THAT the July 6, 2017 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part, and the case is remanded for 

further action consistent with this decision.

Issued: December 17, 2018

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