United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Baraga, MI, Employer

__________________________________________

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Docket No. 18-1345

Issued: February 6, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 June 27, 2018 appellant, through counsel, filed a timely appeal from a May 25, 2018 

merit decision of the Office of Workers’ Compensation Programs. 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 Appellant submitted additional evidence on appeal. However, “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 evidence for the first time on appeal. Id.
2

ISSUES

The issues are: (1) whether appellant received a $25,940.06 overpayment of wage-loss 

compensation for the period January 1, 2014 through May 27, 2017; (2) whether OWCP properly 

determined that she was not entitled to waiver of recovery of the overpayment; and (3) whether it 

properly found that it would recover the overpayment of compensation by withholding $400.00 

every 28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On July 28, 1999 appellant, then a 51-year-old rural route carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on May 21, 1999 she injured her right shoulder while in the 

performance of duty. She stopped work on July 30, 1999. OWCP accepted the claim for right 

limb pain and right reflex sympathetic dystrophy of the upper limb. It paid appellant wage-loss 

compensation for intermittent disability until May 9, 2000, when she stopped work and did not 

return.4 OWCP paid her wage-loss compensation on the periodic rolls effective January 26, 2003.

A notification of personnel action form (SF-50) dated February 23, 2002 indicated that 

appellant had retirement coverage under the Federal Employees Retirement System (FERS). 

By letter dated December 9, 2009, OWCP notified appellant that it would need to reduce 

her FECA benefits if she began receiving age-related retirement benefits from the Social Security 

Administration (SSA) and that failure to report receipt of such benefits could result in an 

overpayment of compensation.

On June 8, 2017 SSA provided appellant’s SSA rate with FERS and her hypothetical SSA

rate without FERS from January 2014 to December 2016. With FERS, her SSA rate was $964.40 

effective January 2014, $980.70 effective December 2014 and 2015, and $983.60 effective 

December 2016. Without FERS, appellant’s SSA rate was $339.40 effective January 2014, 

$345.10 effective December 2014 and 2015, and $346.10 effective December 2016.

In a pay rate memorandum dated June 8, 2017, OWCP calculated the amount that it should 

have offset from appellant’s wage-loss compensation from January 2014 to December 1, 2016 due 

to her receipt of retirement benefits from SSA. It found that effective January 1, 2014, the monthly 

offset was $625.00 ($964.40-$339.40), or $576.92 every 28 days; effective December 1, 2014, the 

monthly offset was $635.60 ($980.70-345.10) or $586.71 every 28 days; and effective 

December 1, 2016, the monthly offset was $637.50 ($983.60-$346.10), or $588.46 every 28 days. 

OWCP divided the 28-day offset amount to obtain the daily amount, which it multiplied by the 

number of days in each period from January 1, 2014 to May 27, 2017 to calculate the amount that 

it overpaid appellant for each period. It added the amounts for each period and determined that it 

should have offset $25,940.06 from her wage-loss compensation.

 

4 By decision dated February 8, 2000, OWCP found that appellant had not established that she was disabled from 

employment for intermittent periods in 1999. By decision dated September 10, 2001, it terminated her wage-loss 

compensation after finding that she had no further employment-related disability; however, by decision dated 

August 20, 2002, an OWCP hearing representative vacated the September 10, 2001 decision.
3

OWCP, on June 13, 2017, informed appellant that she had been receiving a prohibited dual 

benefit. It noted that the portion of SSA benefits that she had earned as a federal employee was 

part of her retirement and that the receipt of wage-loss compensation under FECA and federal 

retirement was prohibited. OWCP adjusted appellant’s FECA benefits to account for her SSA 

offset effective May 28, 2017, which reduced her net compensation payments every 28 days to 

$1,698.14.

On September 28, 2017 OWCP advised appellant of its preliminary determination that she 

had received an overpayment of wage-loss compensation in the amount of $25,940.06 for the 

period January 1, 2014 through May 27, 2017 because it failed to offset the portion of her agerelated SSA benefits that she received due to her federal service from her workers’ compensation 

benefits. It set forth its calculations of the overpayment, indicating that it had obtained the daily 

amount to be offset during each period and had multiplied this amount by the number of days in 

each period to obtain the overpayment of compensation. OWCP noted that appellant began 

receiving age-related SSA benefits on February 1, 2014 and that she reached 66 years of age in 

January 2010. It further informed her of its preliminary determination that she was at fault in the 

creation of the overpayment of wage-loss compensation, noting that it had advised her in a 

December 9, 2009 letter that receiving SSA retirement benefits would affect the amount of her 

FECA compensation and could result in a prohibited dual benefit and overpayment. OWCP 

requested that appellant complete the enclosed overpayment recovery questionnaire and submit 

supporting financial documents so that it could determine whether she was entitled to wavier of 

recovery of the overpayment. Additionally, it notified her that, within 30 days of the date of the 

letter, she could request a telephone conference, a final decision based on the written evidence, or 

a prerecoupment hearing.

Appellant, on October 14, 2017, requested a telephonic prerecoupment hearing before an 

OWCP hearing representative. She challenged the finding that she had received an overpayment 

of wage-loss compensation. In an October 21, 2017 overpayment recovery questionnaire (OWCP20), appellant provided her monthly income as $3,708.00 and monthly expenses of $4,020.00.5

 

She indicated that she had assets of $1,224.00 in a checking account. Appellant related that she 

had yearly bills for a trailer because she had to relocate to a warmer climate from January through 

April because of her reflex sympathetic dystrophy.

At the telephonic hearing, held on March 13, 2018, counsel challenged the period of the 

overpayment, noting that appellant had not received SSA benefits until February 1, 2014, but 

OWCP found that the period of the overpayment commenced January 1, 2014. He further 

challenged the finding that she was at fault in the creation of the overpayment of compensation. 

Appellant advised that her credit card debt resulted from medical expenses. She indicated that she 

spent winters in Arizona to avoid the cold due to her reflex sympathetic dystrophy. The hearing 

representative requested that appellant provide documentation supporting her claimed expenses, 

noting that failure to provide the information would result in a denial of waiver of recovery of the 

 

5 Appellant listed her monthly expenses as $678.00 for housing, $196.00 for electricity, $34.00 for water, $38.00 

for sewer, $130.00 for telephone, $180.00 for wood and gas heat, $800.00 for food, $100.00 for car insurance, $300.00 

for a car payment, $200.00 for gasoline, $500.00 for medical insurance, $300.00 for a credit card, $250.00 for air 

travel, $28.00 for life insurance, $22.00 for cancer insurance. $33.00 for other insurance, and $316.00 for a rental in 

Arizona. 
4

overpayment. She advised that she had $8,000.00 in a savings account that she planned to use for 

new windows. Appellant and her husband also owned a hunting shelter and a camping trailer.

Thereafter, appellant submitted an updated list of monthly and annual expenses. She 

asserted that she had monthly expenses of $3,476.00. Appellant explained that she had a monthly 

house payment of $555.00, a car payment of $212.00, average heating costs of $84.00, average 

utilities of $137.00, average garbage and telephone expenses of $66.00, shared cable expenses of 

$56.00, and shared mobile telephone expenses of $31.00. She paid $240.00 monthly for gasoline, 

$800.00 for food, $26.00 for medication, $228.00 for acupuncture, $57.00 for electricity, $63.00 

for heat, $23.20 for car insurance, $33.91 for life insurance, and $8.60 for accident insurance. 

Appellant totaled her annual expenses for car insurance, house insurance, taxes on her winter and 

summer homes, her lot in Arizona and camper rental, insurance and taxes on her Arizona camper, 

truck plates, van plates, and wood for heat as $10,262.00, which she divided by 12 to find a 

monthly average of $855.21. She indicated that her monthly income was $3,694.00. Appellant

submitted copies of bank statements and bills.

By decision dated May 25, 2018, OWCP’s hearing representative found that appellant had 

received an overpayment of compensation in the amount of $25,940.06 for the period January 1, 

2014 through May 27, 2017 because she received wage-loss compensation from OWCP and agerelated benefits from SSA without the appropriate offset. She modified the preliminary 

overpayment determination to find that she was not at fault in the creation of the overpayment. 

The hearing representative denied waiver of recovery of the overpayment of compensation as 

appellant’s income exceeded her ordinary and necessary expenses. She found that the expenses 

for spending the winter in Arizona did not constitute ordinary and reasonable expenses, and that 

after omitting these expenses appellant’s income exceeded her expenses by over $1,000.00 

monthly in discretionary income. The hearing representative also noted that appellant had assets 

of $6,000.00 in a bank account, a trailer worth $2,000.00, and a hunting property of unknown 

value. She determined that OWCP should recover the overpayment by deducting $400.00 from 

her continuing compensation payments every 28 days.

On appeal counsel asserts that OWCP did not establish that appellant received dual 

benefits. He further challenges the calculation and period 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 

performance of duty.6 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.7

Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount 

of compensation by the amount of SSA benefits that are attributable to the federal service of the 

 

6 5 U.S.C. § 8102(a).

7

Id. at § 8116.
5

employee.8 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.9

Section 404.310 of SSA regulations provides that entitlement to SSA benefits begins at 62 

years.10 Section 404.409 of SSA regulations provides that for individuals born from 1943 to 1954, 

full retirement age is 66 years.11

ANALYSIS -- ISSUE 1

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

of wage-loss compensation in the amount of $25,940.06 for the period January 1, 2014 through

May 27, 2017. 

OWCP accepted that appellant sustained right limb pain and right reflex sympathetic 

dystrophy due to a May 21, 1999 employment injury. It paid her wage-loss compensation for total 

disability on the periodic rolls effective January 26, 2003. Beginning January 1, 2014, appellant 

also received age-related retirement benefits from SSA. As noted, a claimant cannot receive 

concurrent compensation for wage loss and SSA retirement benefits attributable to federal service 

for the same period.12 The information provided by SSA indicated that appellant received agebased SSA benefits that were attributable to her federal service from January 1, 2014 through 

May 27, 2017, and thus she received an overpayment of wage-loss compensation.13

OWCP calculated the overpayment of compensation by determining the portion of SSA 

benefits that were attributable to appellant’s federal service. The SSA provided her SSA rate with 

FERS and without FERS for specific periods commencing January 1, 2014 through 

December 1, 2016. The difference between these amounts must be deducted from appellant’s 

FECA benefits. OWCP provided its calculations of the amount that it should have offset for each 

relevant period based on the SSA worksheet. The Board has reviewed OWCP’s calculations and 

finds that it properly determined that appellant received dual benefits totaling $25,940.06, creating 

an overpayment of compensation in that amount.14

On appeal counsel challenges fact, amount, and the period of the overpayment. He 

maintains that she did not receive age-related SSA benefits until February 2014, when she turned 

 

8 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

9 FECA Bulletin No. 97-09 (February 3, 1997); see also G.K., Docket No. 18-0243 (issued August 17, 2018).

10 20 C.F.R. § 404.310.

11 Id. at § 404.409.

12 See S.M., Docket No. 17-1802 (issued August 20, 2018); D.M., Docket No. 17-0983 (issued August 3, 2018).

13 Id.

14 See E.K., Docket No. 18-0587 (issued October 1, 2018); L.M., Docket No. 16-1035 (issued November 27, 2017).
6

66 years old. Appellant, however, turned 66 years old in January 2014, and SSA indicated that 

she had received benefits commencing that month. Counsel has not submitted evidence supporting 

his contention that OWCP erred in calculating the period or amount of the overpayment of wageloss compensation or that she had not received age-related SSA benefits as found.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA15 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.” (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.16

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.17 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.18 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.19 

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.20 To establish that a valuable right has been relinquished, it must be 

 

15 5 U.S.C. § 8129(1)-(b); see D.C., Docket No. 17-0559 (issued June 21, 2018).

16 See V.T., Docket No. 18-0628 (issued October 24, 2018).

17 20 C.F.R. § 10.436. 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. 

M.P., Docket No. 18-0902 (issued October 16, 2018). 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).

18 Id.

19 Id.

20 20 C.F.R. § 10.437.
7

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 $25,940.06 

overpayment of wage-loss compensation. 

OWCP determined that appellant was without fault in the creation of the overpayment. It 

may, therefore, only require recovery of the overpayment if it would not defeat the purpose of 

FECA or be against equity and good conscience.22

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

substantially all of her income to meet ordinary living expenses. Appellant indicated that she had 

monthly expenses of $3,476.00 and monthly income of $3,694.00. The hearing representative 

noted that appellant had a monthly surplus of $200.00 and further determined that the expenses 

appellant incurred by spending winters in Arizona did not constitute ordinary and reasonable 

expenses and resulted in a monthly surplus of $1,000.00. As her monthly income exceeded her 

ordinary and necessary living expenses by more than $50.00, appellant did not need substantially 

all of her income for ordinary and necessary living expenses.23

Additionally, the evidence of record does not demonstrate that recovery of the overpayment 

would be against equity and good conscience. Appellant submitted no evidence that she had relied 

upon the incorrect payments to her detriment or that she would experience severe financial 

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

of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s 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 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 hardship.25

 

21 Id. at § 10.437(b)(1).

22 See supra note 14; see also S.M., Docket No. 17-1802 (issued August 20, 2018).

23 See V.T., Docket No. 18-0628 (issued October 25, 2018). The hearing representative also noted that appellant 

had a travel trailer worth $2,000.00 and $6,000.00 in a bank account. However, as her income exceeds her ordinary 

and necessary living expenses by more than $50.00, it is not necessary for OWCP to consider whether her assets 

exceed the allowable resource base. See J.W., Docket No. 16-1355 (issued January 10, 2017).

24 20 C.F.R. § 10.437; see also V.T., Docket No. 18-0628 (issued October 25, 2018).

25 20 C.F.R. § 10.441(a).
8

ANALYSIS -- ISSUE 3

The Board finds that OWCP gave due regard to the financial information appellant 

submitted as well as the factors set forth in section 10.441. As appellant’s monthly income 

exceeded her ordinary and necessary expenses by more than $400.00, OWCP did not abuse its 

discretion in requiring recovery of the overpayment by deducting $400.00 every 28 days from each 

of her continuing compensation payments. The Board finds that OWCP properly required 

recovery of the overpayment in this case.26

CONCLUSION

The Board finds that appellant received a $25,940.06 overpayment of wage-loss 

compensation for the period January 1, 2014 through May 27, 2017. The Board further finds that 

OWCP properly determined that she was not entitled to waiver of recovery of the overpayment 

and properly found that it would recover the overpayment of compensation by withholding 

$400.00 every 28 days from her continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the May 25, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 6, 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

 

26 See M.P., Docket No. 18-0902 (issued October 16, 2018).