United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.F., Appellant

and

U.S. POSTAL SERVICE, PROCESSING &

DISTRIBUTION CENTER, Los Angeles, CA, 

Employer

__________________________________________

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Docket No. 19-1198

Issued: April 19, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On May 8, 2019 appellant, through counsel, filed a timely appeal from an April 25, 2019 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 The Board notes that following the April 25, 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

Federal Employees’ Compensation Act3(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 determined that appellant received an 

overpayment of compensation in the amount of $82,137.37 for the period January 1, 2012 through 

June 23, 2018, for which she was not at fault, as she concurrently received FECA wage-loss 

compensation and Social Security Administration (SSA) age-related retirement benefits without 

an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; 

and (3) whether OWCP properly required recovery of the overpayment by deducting $600.00 

every 28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On August 11, 2010 appellant, then a 64-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she had developed bilateral basal joint 

arthritis and carpal tunnel syndrome due to factors of her federal employment. On November 19, 

2010 OWCP accepted her claim for bilateral carpal tunnel syndrome and right cubital tunnel 

syndrome. Appellant stopped work on May 7, 2011. She underwent a right carpal tunnel release 

and right cubital tunnel release surgery on June 20, 2011. OWCP paid appellant wage-loss 

compensation on the periodic rolls, effective August 8, 2011. On August 27, 2012 appellant

underwent a left carpal tunnel release surgery. On May 1, 2013 she returned to light-duty work

four hours per day. Appellant accepted a light-duty position as an opening unit clerk working four 

hours per day on June 7, 2013. On July 28, 2013 she stopped work.

By decisions dated December 3, 2013 and April 14, 2014, OWCP denied appellant’s claim 

for total disability compensation. However, it continued to pay wage-loss compensation benefits 

for four hours per day.

On June 9, 2017 appellant accepted a light-duty position as a clerk working eight hours per 

day. Beginning on June 26, 2017 appellant filed a claim for compensation (Form CA-7) for 

disability from work, noting that she had worked eight hours on June 17 and 20, 2017 and 

thereafter her work hours were reduced to six hours per day or less.

By decision dated October 30, 2017, OWCP denied appellant’s claims for compensation 

finding that she was capable of working eight hours per day with restrictions. On November 6, 

2017 appellant, through counsel, requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

By decision dated May 10, 2018, an OWCP hearing representative reversed the 

October 30, 2017 decision, finding that OWCP failed to properly follow the provisions of 20 

C.F.R. § 10.500(a).

 

3 5 U.S.C. § 8101 et seq.
3

On May 11, 2018 appellant filed a claim for a schedule award (Form CA-7).

On July 2, 2018 OWCP received a completed Federal Employees Retirement System 

(FERS)/(SSA) dual benefits calculation form from SSA, which reported that appellant had been 

in receipt of SSA age-related retirement benefits since January 2012. SSA reported that:

beginning January 2012 appellant’s monthly SSA rate with FERS was $1,708.60 and without 

FERS was $694.40; from December 2012 through November 2013 her monthly SSA rate with 

FERS was $1,737.60 and without FERS was $706.20; from December 2013 through 

December 2014 her monthly SSA rate with FERS was $1,763.60 and without FERS was $716.70; 

from January 2014 through November 2014 her monthly SSA rate with FERS was $1,764.70 and

without FERS was $716.70; from December 2014 through November 2015 her monthly SSA rate 

with FERS was $1,794.60 and without FERS was $728.80; from December 2015 through 

November 2016 appellant’s monthly SSA rate with FERS was $1,794.60 and without FERS was 

$728.80; from December 2016 through November 2017 her monthly SSA rate with FERS was 

$1,799.90 and without FERS was $730.90; beginning December 2017 her monthly SSA rate with 

FERS was $1,835.80 and without FERS was $745.50.

In a July 12, 2018 letter, OWCP informed appellant that she had been receiving dual FERS 

and SSA benefits. It further informed her that her FECA benefits must be adjusted based on the 

FERS portion of SSA benefits that were attributable to federal service. OWCP indicated that 

appellant’s FECA benefits would be reduced from $1,717.00 to $710.57 every 28 days.

On August 3, 2018 OWCP notified appellant that it made a preliminary overpayment 

determination that she had received an overpayment of compensation in the amount of $82,137.37

because she received FECA wage-loss compensation benefits concurrently with SSA age-related 

retirement benefits for the period January 1, 2012 through June 23, 2018. It noted that the SSA 

had confirmed that a portion of her SSA age-related retirement benefits were attributed to her years 

of federal service as an employee under the FERS retirement program and that portion required an 

offset of her FECA compensation benefits until June 23, 2018 when her monthly wage-loss 

compensation was adjusted. OWCP explained that it had calculated the overpayment of 

compensation by determining the difference between appellant’s SSA benefit rates with and 

without FERS for each period, and then multiplying that amount by the number of days in each 

period. The FERS offset calculation worksheet indicated that OWCP had utilized a 28-day FERS 

offset amount of $936.18 from January 1 through November 30, 2012, $952.06 from December 1, 

2012 through November 30, 2013, $966.37 from December 1 through 31, 2013, $967.38 from 

January 1 through November 30, 2014, $983.82 from December 1, 2014 through November 30, 

2015, $983.82 from December 1, 2015 through November 30, 2016, $986.77 from December 1, 

2016 through November 30, 2017, and $1,006.43 from December 1, 2017 through June 23, 2018. 

Using these figures, OWCP calculated that the total overpayment amount was $82,137.37. It 

found that appellant was at fault in the creation of the overpayment. OWCP requested that she 

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

supporting financial documentation. Additionally, it advised appellant that, within 30 days of the 

date of the letter, she could request a final decision based on the written record or request a 

prerecoupment hearing.
4

On August 14, 2018 appellant noted her disagreement regarding the overpayment and 

requested a prerecoupment hearing on the issues of fault and waiver of recovery of the 

overpayment before OWCP’s Branch of Hearings and Review.

During the hearing held on January 14, 2019, appellant testified regarding the alleged 

overpayment of compensation. She noted her disagreement that she was at fault in the creation of 

the overpayment. Appellant indicated that she would submit the Form OWCP-20 and supporting 

financial documentation. She noted that she was currently working four hours per day and was 

covered under FERS.

In a letter dated March 11, 2019, counsel asserted that he had provided all pertinent 

information regarding the overpayment including tax returns, social security data, and bank 

statements. Attached was a February 11, 2019 completed Form OWCP-20 and supporting

financial documentation. She listed her monthly income as $1,763.00 in SSA benefits. Appellant 

listed her monthly expenses as $500.00 for food and $100.00 for clothing. She indicated that her 

utilities and other household expenses were attached. Appellant listed a monthly payment of 

$44.60 to Stratford Career Institute, and indicated that all of her other monthly expenses were on 

the attached sheets. She reported that she had two dependents, her 30-year-old grandson and her 

52-year-old cousin and that she had $80.00 in cash and no other assets. Appellant submitted 

evidence establishing that in January 2019 her mortgage, insurance, and property tax totaled 

$763.35 per month. She noted a monthly car payment of $340.57 and submitted a February 1, 

2019 statement for automobile insurance in the amount of $160.21. Appellant also submitted 

monthly billing statements for utilities, including cable, water, sewer, street sweeping, trash 

collection, telephone, internet, electric, and gas. She also provided receipts for car repairs on 

January 28 and 29, 2019, as well as proof of payment of $15.92 for a newspaper subscription and 

a November 26, 2018 podiatrist bill for $178.00. She further submitted TransUnion and Equifax 

credit reports as well as earnings and leave statements for pay periods ending January 11, 25, and 

February 8, 2019 showing a net pay of $1,118.42, $849.66, and $1,121.61 respectively. Appellant

also submitted a November 28, 2018 Thrift Savings Plan statement indicating that her balance as 

of November 27, 2018 was $34,569.33. OWCP also received appellant’s tax returns from 2009

through December 2018 and bank statements from 2013 through 2018.

By decision dated April 25, 2019, OWCP’s hearing representative finalized the 

preliminary determination that appellant had received an overpayment in the amount of $82,137.37 

for the period January 1, 2012 through June 23, 2018. He determined that appellant was without 

fault in the creation of the overpayment. OWCP’s hearing representative denied waiver of 

recovery of the overpayment as there was no evidence that recovery would defeat the purpose of 

FECA. He found appellant’s monthly income beginning June 20, 2019, when her schedule award 

ended, would be $4,870.72 including $876.27 per month in wage-loss compensation based on an 

average of eight weeks of wage-loss compensation from August 4 through September 28, 2018, 

$2,231.45 per month in earnings based on the $514.95 weekly average of her three recent pay stubs 

from the employing establishment for the period January through February 8, 2019, and $1,763.00 

in SSA benefits. OWCP’s hearing representative determined that appellant’s monthly expenses 

totaled $2,619.49 including mortgage of $763.35, automobile loan of $340.57, telephone costs of 

$133.00, cable television costs of $155.97, city utilities of $62.55, automobile insurance of 

$160.21, an average of monthly car repairs of $51.75, home gas utility of $194.23, monthly 

average of utilities of $87.64, electricity monthly average of $54.30, newspaper cost of $15.90 per 
5

month, food $500.00 per month, and clothing $100.00. He found no documentation supporting 

the claimed $44.60 per month in tuition claimed and discounted this amount. OWCP’s hearing 

representative found this resulted in approximately $2,251.00 in monthly income over debt, which 

exceeded the statutory amount of $50.00. He further found there was no evidence that recovery

would be against equity and good conscience. OWCP’s hearing representative required recovery 

of the overpayment by deducting $600.00 every 28 days from appellant’s continuing compensation 

payments.

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.4 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.5

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.6 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.7

ANALYSIS -- ISSUE 1

The Board finds appellant received an $82,137.37 overpayment of compensation for the 

period January 1, 2012 through June 23, 2018 because she concurrently received FECA wage-loss 

compensation and SSA age-related retirement benefits, without appropriate offset. 

In its April 25, 2019 decision, OWCP found that an overpayment of compensation was 

created for the period January 1, 2012 through June 23, 2018. The overpayment determination 

was based on the evidence received from SSA with respect to age-related retirement benefits paid 

to appellant. A claimant cannot receive both FECA compensation for wage loss and SSA agerelated retirement benefits attributable to federal service for the same period.8

 The information 

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6 20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued 

August 20, 2018).

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

8 5 U.S.C. § 8116(d)(2); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued 

May 17, 2019).
6

provided by SSA indicated that appellant received SSA age-related retirement benefits that were 

attributable to federal service during the period January 1, 2012 through June 23, 2018. 

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

attributable to federal service must be calculated. OWCP received documentation from SSA with 

respect to the specific amount of SSA age-related SSA retirement benefits that were attributable 

to federal service. SSA provided their rate with FERS, and without FERS for specific periods 

commencing January 1, 2012 through June 23, 2018. OWCP provided its calculations for each

relevant period based on a FERS offset calculation worksheet and in its August 3, 2018 

preliminary overpayment determination. 

The Board has reviewed OWCP’s calculation of benefits received by appellant for the 

period January 1, 2012 through June 23, 2018 and finds that an overpayment of compensation in 

the amount of $82,137.37 was created.9

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an individual who is without fault in creating or 

accepting an overpayment is still subject to recovery of the overpayment unless adjustment or 

recovery would defeat the purpose of FECA or would be against equity and good conscience.10 

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.11

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause 

hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP 

seeks recovery needs substantially all of his or her 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.12 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 $50.00.13

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 

 

9 L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

10 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; A.F., Docket No. 19-0054 (issued 

June 12, 2019).

11 A.C., Docket No. 18-1550 (issued February 21, 2019); Robert Atchison, 41 ECAB 83, 87 (1989).

12 20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base 

increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional 

dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400.4(a)(2) (September 2018).

13 N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 (issued April 26, 2019); id. at 

Chapter 6.400.4.a(3).
7

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

notice that such payments would be made, gives up a valuable right or changes his or her position 

for the worse.14

OWCP’s regulations provide that 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. The information is also used to 

determine the repayment schedule, if necessary.15 Failure to submit the requested information 

within 30 days of the request shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished.16

OWCP’s procedures provide that a finding that a type of expense is ordinary and necessary 

does not mean that the amount is ordinary and necessary. The burden is on the overpaid individual 

to show that the expenses are reasonable and needed for a legitimate purpose. If the claims 

examiner or hearing representative determines that the amount of certain expenses is not ordinary 

and necessary, he or she must state, in writing, the reasons for the determination. The 

determination should be supported by rationale, which may include utilizing statistics from the 

Bureau of Labor Statistics that show that the overpaid individual’s expenses exceed that of the 

range for the general population. OWCP should be careful to avoid counting an expense twice 

when totaling the overpaid individual’s ordinary and necessary living expenses. For example, if 

the overpaid individual’s credit card debt is already calculated as a fixed and miscellaneous living 

expense, the credit card expense(s) should not be added again as consumer debt expense. If the 

amount is added again, it would result in an excessive total for the overpaid individual’s ordinary 

and necessary living expenses, and would make the individual appear less able to repay his or her 

overpayment than would actually be the case. Furthermore, OWCP should ensure that the monthly 

expense used for each credit card reflects only the minimum payment required by the creditor. 

The minimum amount should be verified, if necessary, by requiring the overpaid individual to 

submit copies of his or her monthly billing statement(s).17 

ANALYSIS -- ISSUE 2

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

As OWCP found appellant without fault in the creation of the overpayment, waiver of 

recovery of the overpayment must be considered, and repayment is still required unless adjustment 

or recovery of the overpayment would defeat the purpose of FECA or be against equity and good 

conscience.18 OWCP considered appellant’s financial information, as reported in appellant’s 

 

14 20 C.F.R. § 10.437(a)(b).

15 Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16 Id. at § 10.438(b).

17 Supra note 11 at Chapter 6.400.4(b)(2).

18 20 C.F.R. § 10.436.
8

statements, to determine if recovery of the overpayment would defeat the purpose of FECA or if 

recovery would be against equity and good conscience. 

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

substantially all of her income to meet ordinary and necessary living expenses. Based on 

appellant’s February 11, 2019 overpayment recovery questionnaire and the record, her total 

monthly income of $4,870.72 minus $2,619.49 in monthly debts, resulted in approximately 

$2,251.00 in income over debt each month. Thus, based on appellant’s statements and the record, 

appellant’s monthly income exceeded her ordinary and necessary living expenses by more than 

$50.00, she did not need substantially all of her income for ordinary and necessary living expenses 

such that recovery would defeat the purpose of FECA.19

Additionally, appellant did not submit evidence to substantiate that she would experience 

severe financial hardship in attempting to repay the debt, or that in reliance on such payment she 

gave up a valuable right or changed her position for the worst. Therefore, OWCP properly found 

that recovery of the overpayment would not defeat the purpose of FECA or be against equity and 

good conscience.20

Because appellant has not established that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, she has not established that OWCP 

abused its discretion by denying waiver of recovery of the overpayment.21

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 the error is discovered 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.22

ANALYSIS -- ISSUE 3

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

$600.00 every 28 days from appellant’s continuing compensation payments. 

In setting the recovery rate at $600.00, OWCP explained how it considered the factors set 

forth at 20 C.F.R. § 10.441(a) in setting the amount of repayment from continuing compensation 

benefits to minimize hardship, while liquidating the debt, as appellant had financial resources 

 

19 G.L., Docket No. 19-0297 (issued October 23, 2019).

20 N.J., supra note 13; V.T., Docket No. 18-0628 (issued October 25, 2018).

21 D.M., Docket No. 17-0810 (issued October 2, 2017).

22 20 C.F.R. § 10.441(a); A.F., supra note 10; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).
9

sufficient for more than ordinary needs.23 Thus, OWCP did not abuse its discretion in setting the 

rate of recovery.24 The Board therefore finds that OWCP properly required recovery of the 

overpayment from appellant’s continuing compensation payments at the rate of $600.00 every 28 

days.

CONCLUSION

The Board finds that appellant received an $82,137.37 overpayment of compensation for 

the period January 1, 2012 through June 23, 2018, for which she was not at fault, as she 

concurrently received FECA wage-loss compensation and SSA age-related retirement benefits

without appropriate offset. The Board further finds that OWCP properly denied waiver of recovery 

of the overpayment and properly required recovery of the overpayment by deducting $600.00 

every 28 days from her continuing compensation payments. 

ORDER

IT IS HEREBY ORDERED THAT the April 25, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 19, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

23 D.S., Docket No. 18-1447 (issued July 22, 2019).

24 T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).