United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

North Massapequa, NY, Employer

__________________________________________

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Docket No. 19-1443

Issued: December 12, 2019

Appearances: Case Submitted on the Record

Erik B. Blowers, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 24, 2019 appellant, through counsel, filed a timely appeal from a June 10, 2019 

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 over the merits of this case.3

 

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.

3 The Board notes that following the June 10, 2019 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

ISSUES

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

amount of $28,268.65 for the period May 1, 2017 through March 2, 2019 because he concurrently 

received FECA wage-loss compensation and Social Security Administration (SSA) age-related 

retirement benefits; (2) whether OWCP properly denied waiver of recovery of the overpayment; 

and (3) whether OWCP properly required recovery of the overpayment by deducting $150.00 from 

appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On June 6, 2001 appellant, then a 50-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging lower back and leg injuries on that date when lifting a mail tray while in the 

performance of duty. He stopped work on the date of the claimed injury. OWCP accepted 

appellant’s claim for lumbago and paid him wage-loss compensation for total disability on the

daily rolls commencing July 22, 2001, and then on the periodic rolls commencing June 16, 2002.

On February 19, 2019 OWCP received a Federal Employees Retirement System (FERS)/

SSA dual benefits calculation form completed by an SSA official on February 11, 2019. It 

indicated that appellant received age-related SSA benefits that were attributable to federal service 

beginning May 1, 2017 and continuing through the present time. The form also advised that he

received retirement benefits subject to a FERS/SSA offset from May 1, 2017 through the present 

time delineating the specific amounts of age-related SSA retirement benefits that were attributable 

to federal service and provided the SSA payment rates, with FERS and without FERS, for specific 

periods commencing on May 1, 2017 and continuing.4

In a March 21, 2019 letter, OWCP advised appellant that, effective the same date, his 

compensation benefits would be offset by his SSA benefits attributable to his federal service.

In a March 21, 2019 FERS offset calculation worksheet, OWCP referenced the SSA 

documentation which provided SSA payment rates (both with FERS and without FERS) for 

specific periods. It calculated that, for the period May 1, 2017 through March 2, 2019, appellant 

received an overpayment of compensation in the amount of $28,268.65.

5

In an April 9, 2019 notice, OWCP advised appellant of its preliminary determination that 

he received a $28,268.65 overpayment of compensation for the period May 1, 2017 through 

March 2, 2019 because he received SSA age-related retirement benefits attributable to his federal 

service, without an offset being made, while he received FECA compensation benefits. It also 

made a preliminary determination that appellant was without fault in the creation of the 

overpayment. OWCP advised him that he could submit evidence challenging the fact or amount 

of the overpayment, and could request waiver of recovery of the overpayment. It informed 

 

4 SSA’s documentation provided applicable rates effective the following dates: May 1 to December 1, 2017, and 

December 1, 2018.

5 OWCP determined that appellant received an $8,860.31 overpayment of compensation for the period May 1 

through November 30, 2017, a $15,414.23 overpayment of compensation for the period December 1, 2017 through 

November 30, 2018, and a $3,994.11 overpayment of compensation for the period December 1, 2018 through 

March 2, 2019.
3

appellant that he could submit additional evidence in writing or at a prerecoupment hearing, but 

that a prerecoupment hearing must be requested within 30 days of the date of the written 

preliminary notice of overpayment. OWCP requested that appellant complete and return an 

enclosed financial information questionnaire (Form OWCP-20) within 30 days even if he was not 

requesting waiver of recovery of the overpayment. 

Appellant completed and submitted a Form OWCP-20, signed on April 22, 2018, in which 

he reported he had monthly income of $4,660.60, monthly expenses of $4,761.10, and assets of 

$49,030.00 (comprised of an individual retirement account and checking/savings account 

balances).

6

 In an overpayment action request form, signed on April 30, 2019, he checked a box 

indicating that he was requesting waiver of recovery of the overpayment because he was found to 

have been without fault in its creation. Counsel argued, in a May 1, 2010 letter, that recovery of 

the overpayment would cause appellant undue burden and hardship.

By decision dated June 10, 2019, OWCP determined that appellant received a $28,268.65 

overpayment of compensation for the period May 1, 2017 through March 2, 2019 because he 

received SSA age-related retirement benefits attributable to his federal service, without an 

appropriate offset being made, while he received FECA compensation benefits. It provided an 

overpayment calculation based on his SSA payment rates with FERS and without FERS for 

specific periods beginning May 1, 2017. OWCP further found that appellant was without fault in 

the creation of the overpayment, but that the overpayment was not subject to waiver. In reaching 

this determination, it noted that he had not provided adequate documentation of his monthly 

expenses and indicated that his assets of $49,030.00 exceeded the applicable allowable resource 

base. OWCP required repayment of the overpayment by deducting $150.00 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.7 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.8

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 benefits that are attributable to the 

employee’s federal service.9 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 

 

6 Appellant indicated on the Form OWCP-20 that he was responsible for the support of his wife. On June 1, 2018 

he had completed a Form EN1032 in which he indicated in the portion of the form entitled, “Dependents,” that he was 

married, but was not claiming compensation on account of a child.

7 5 U.S.C. § 8102(a).

8

Id. at § 8116.

9 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).
4

federal employee is part of the FERS retirement package, and the receipt of FECA benefits and 

federal retirement concurrently is a prohibited dual benefit.10

ANALYSIS -- ISSUE 1

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

$28,268.65 for the period May 1, 2017 through March 2, 2019 because he concurrently received 

FECA wage-loss compensation and SSA age-related retirement benefits.

Beginning June 16, 2002, OWCP paid appellant wage-loss compensation on the periodic 

rolls for total disability due to his accepted injury. Beginning May 1, 2017, SSA paid him agerelated retirement benefits. As noted, a claimant cannot receive compensation for wage-loss 

compensation and SSA retirement benefits attributable to federal service for the same period.11 

The information provided by SSA indicated that a portion of appellant’s age-related SSA benefits 

were attributable to his federal service. As OWCP neglected to appropriately offset his FECA 

benefits for the period May 1, 2017 through March 2, 2019, appellant received an overpayment of 

wage-loss compensation.12

Based on the rates provided by SSA, 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 amounts of age-related SSA 

retirement benefits that were attributable to federal service. SSA provided appellant’s SSA 

payment rates with FERS and without FERS for specific periods beginning May 1, 2017.13 OWCP 

provided calculations of the amounts that should have been offset for each relevant period based 

on the SSA documentation. The Board has reviewed OWCP’s calculations and finds that it 

properly determined that appellant received prohibited dual benefits totaling $28,268.65, creating 

an overpayment of compensation in that amount.14

LEGAL PRECEDENT -- ISSUE 2

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that 

rests within OWCP’s discretion pursuant to statutory guidelines.15 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.16 Thus, a finding that appellant was without fault does not 

 

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

11 Supra notes 9 and 10; A.C., Docket No. 18-1550 (issued February 21, 2019).

12 Id.

13 A.C., supra note 11.

14 See A.S., Docket No. 19-0171 (issued June 12, 2019).

15 See L.D., Docket No. 18-1317 (issued April 17, 2019); P.J., Docket No. 18-0248 (issued August 14, 2018); 

Robert Atchison, 41 ECAB 83, 87 (1989).

16 5 U.S.C. § 8129(b); A.C., supra note 11; see D.C., Docket No. 17-0559 (issued June 21, 2018).
5

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.17

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.18 An individual’s liquid assets 

include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual 

funds, and certificates of deposits. 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, furnishings/supplies, 

vehicle(s) above the two allowed per immediate family, retirement account balances (such as 

Thrift Savings Plan or 401 (k)), jewelry, and artwork.19

According to 20 C.F.R. § 10.437 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.20 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.21

ANALYSIS -- ISSUE 2

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

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 and that his assets do not exceed the allowable 

resource base. The evidence of record reveals that he has assets of $49,030.00, a figure above the 

allowable resource base of $10,300.00 for an individual with a spouse.22 Because appellant’s 

assets exceed the allowable resource base, he has not met the second prong of the two-prong test 

 

17 See V.T., Docket No. 18-0628 (issued October 25, 2018).

18 20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her 

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

expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment 

Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not 

exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus 

$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).

19 Id. at Chapter 6.400.4b(3)(a), (b).

20 20 C.F.R. § 10.437(a), (b).

21 Id. at § 10.437(b)(1).

22 See supra note 20.
6

of whether recovery of the overpayment would defeat the purpose of FECA.

23

 Therefore, it is not 

necessary for OWCP to consider the first prong of the test, i.e., whether he needs substantially all 

of his current income to meet ordinary and necessary living expenses.

Appellant also has not established that recovery of the overpayment would be against 

equity and good conscience because he has not shown, for the reasons noted above, that he would 

experience severe financial hardship in attempting to repay the debt or that he relinquished a 

valuable right or changed his position for the worse in reliance on the payment which created the 

overpayment.24

On appeal counsel generally argues that recovery of the overpayment would defeat the 

purpose of FECA and be against equity and good conscience by causing severe financial hardship 

in attempting to repay the debt. However, he does not provide any explanation for this argument 

and the Board has explained why recovery of the overpayment would not defeat the purpose of 

FECA or be against equity and good conscience.

Because appellant failed to establish that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, he did not demonstrate that OWCP 

improperly denied waiver of recovery of 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 

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 

soon 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.”

26

ANALYSIS -- ISSUE 3

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

$150.00 from appellant’s continuing compensation payments every 28 days.

 

23 See id.

24 See L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

25 R.W., Docket No. 19-0451 (issued August 7, 2019); C.A., Docket No. 18-1284 (issued April 15, 2019); Albert 

Pinero, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51 ECAB 295 (2000).

26 20 C.F.R. § 10.441(a).
7

The record supports that, in requiring repayment of the overpayment by deducting $150.00 

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

the financial information submitted by appellant as well as the factors set forth in section 10.441 

and found that this method of recovery would minimize any resulting hardship on appellant.27 

Therefore, OWCP properly required recovery of the overpayment by deducting $150.00 from 

appellant’s continuing compensation payments every 28 days.

CONCLUSION

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

$28,268.65 for the period May 1, 2017 through March 2, 2019 because he concurrently received 

FECA wage-loss compensation and SSA age-related retirement benefits. The Board further finds 

that OWCP properly denied waiver of recovery of the overpayment and properly required recovery 

of the overpayment by deducting $150.00 from appellant’s compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the June 10, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 12, 2019

Washington, DC

Janice B. Askin, 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 See id.