United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.C., Appellant

and

U.S. POSTAL SERVICE, MEDWAY POST 

OFFICE, Medway, MA, Employer

__________________________________________

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Docket No. 19-0629

Issued: June 2, 2020

Appearances: Case Submitted on the Record

Sara Kincaid, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 22, 2019 appellant filed a timely appeal from an August 13, 2018 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.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 August 13, 2018 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 $50,438.34 for the period March 1, 2014 to May 26, 2018, for which she was without

fault, as she concurrently received Social Security Administration (SSA) age-related retirement 

benefits while in receipt of FECA compensation benefits; (2) whether OWCP properly denied 

waiver of recovery of the overpayment; and (3) whether OWCP properly required recovery of 

the overpayment by deducting $300.00 every 28 days from appellant’s continuing compensation 

payments.

FACTUAL HISTORY

On June 26, 2006 appellant, then a 58-year-old full-time regular clerk, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, she sustained a shoulder injury when

throwing packages into a hamper while in the performance of duty. OWCP accepted her claim 

for sprains of the right shoulder (acromioclavicular region), right upper arm, and neck. 

Appellant stopped work on the date of injury and did not return. OWCP paid her wage-loss 

compensation for disability from work on the supplemental rolls commencing August 11, 2006, 

and on the periodic rolls commencing October 1, 2006. 

In a March 3, 2014 letter, SSA informed appellant that it was changing the type of benefits

she was entitled to receive effective March 1, 2014 because she was entitled to retirement benefits. 

It advised that she was no longer entitled to disability benefits because she had reached full 

retirement age.

On May 21, 2018 OWCP received a May 16, 2018 FERS SSA Dual Benefit Calculation 

form from SSA which advised that appellant began receiving SSA benefits effective March 1, 

2014 and it provided figures for both appellant’s SSA rate with Federal Employees Retirement 

System (FERS) and her SSA rate without FERS on several effective dates. The respective rates 

for the delineated effective dates were reported as follows: March 1, 2014 ($1,693.20 and 

$721.70), December 1, 2014 ($1,721.90 and $733.90), December 1, 2015 ($1,721.90 and 

$733.90), December 1, 2016 ($1,727.00 and $736.10), and December 1, 2017 ($1,761.50 and 

$750.80).

In a letter dated May 31, 2018, OWCP informed appellant it had recently been found that 

she had been receiving SSA age-related retirement benefits since 2014 and it advised her that the 

portion of SSA benefits attributable to federal service as an employee under FERS necessitated an 

offset of FECA compensation benefits. It described the FERS/SSA offset it made to her FECA 

compensation benefits effective May 27, 2018. 

On June 11, 2018 a calculation worksheet dated May 31, 2018 was added to the case record. 

An OWCP official provided calculations of the FERS/SSA offset for the period March 1, 2014 

through May 26, 2018 based on the figures for appellant’s SSA rates with FERS and her SSA rates 

without FERS as delineated in SSA’s May 16, 2018 document. The amount of the overpayment 

created as a result of the failure to apply the FERS/SSA offset was calculated to be $50,438.34.

By preliminary determination dated June 14, 2018, OWCP advised appellant that an 

overpayment of compensation in the amount of $50,438.34 had been created because she received 
3

SSA age-related retirement benefits at the same time she received FECA compensation benefits 

from March 1, 2014 to May 26, 2018 without a proper FERS/SSA offset. It informed appellant 

that, because she was a FERS employee, SSA age-related retirement benefits were considered part 

of a FERS retirement and the portion of the SSA benefits attributable to her FERS employment 

required an offset adjustment. OWCP also made a preliminary determination that appellant was 

without fault in the creation of the overpayment. It explained that the overpayment was calculated 

using figures provided by SSA for her SSA rate with FERS and her SSA rate without FERS on a 

series of effective dates for the period March 1, 2014 through May 26, 2018. The difference 

between the amount of FECA compensation owed and the amount paid was $50,438.34. OWCP 

advised appellant that she could request waiver of recovery of the overpayment and requested that 

she submit a completed overpayment recovery questionnaire (Form OWCP-20) for consideration 

on the question of waiver and determine a reasonable method for collection. It provided appellant

with appeal rights and afforded her 30 days to respond.

Appellant submitted an overpayment action request form, dated June 23, 2018, in which 

she requested waiver of recovery of the overpayment, noting her belief that she was without 

fault in its creation. She advised that the amount of her FECA compensation had changed and 

asserted that she could not afford to repay the overpayment. Appellant also submitted a Form 

OWCP-20, signed on June 23, 2018, in which she reported total monthly income of $1,863.00 

in SSA benefits.

4

 She also submitted documentation which showed $3,125.00 in monthly 

expenses, including $1,862.00 for rent/water, $70.00 for electricity, $24.00 for homeowner’s 

insurance, $328.00 for automobile leasing, $110.00 for automobile insurance, $50.00 for 

clothing, $40.00 for furniture, $126.00 for medical alert service, $2.00 medical oxygen, $313.00 

for cable service, $51.00 for minimum payment of credit card debt, and $149.00 for minimum 

payment of a second credit card.5 Appellant noted other expenses for which she did not submit

documentation, including $350.00 for food, $50.00 for medication, $389.00 for utilities (not 

otherwise specified), and $418.00 for “other expenses.” She reported assets of $50.00 in cash 

on hand, $100.00 in her checking account, and $43,000.00 in her savings account. Appellant

further noted that a portion of her savings is in her children’s names “in case of emergency.

By decision dated August 13, 2018, OWCP determined that appellant received an 

overpayment of compensation in the amount of $50,438.34 as she was in receipt of FERS and SSA 

dual benefits for the period March 1, 2014 to May 26, 2018 without a proper FERS/SSA offset. It

noted that the portion of SSA benefits earned as a federal employee was part of the FERS 

retirement, and that the receipt of FECA benefits and federal retirement benefits concurrently was

a prohibited dual benefit. OWCP found that appellant was without fault in the creation of the 

overpayment, but that her financial circumstances did not warrant waiver of recovery of the 

overpayment. It indicated that appellant had $4,831.00 in monthly income (comprised of 

$1,863.00 in SSA benefits and $2,968.00 in FECA benefits) and $3,125.00 in documented monthly 

expenses, and that she had reported $43,150.00 in assets. OWCP determined that appellant’s 

financial circumstances showed that the overpayment could be recovered by deducting $300.00 

every 28 days from her continuing compensation benefits. 

 

4 Documentation in the case record reveals that appellant also was receiving $2,968.00 in FECA compensation 

benefits every 28 days at the time she completed the Form OWCP-20. 

5 The monthly expense figures provided by appellant have been rounded to the nearest dollar.
4

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.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 When an overpayment has been made 

to an individual 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 the individual is 

entitled.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 age-related retirement benefits because the portion of SSA 

age-related retirement benefits 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.10

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $50,438.34 for the period March 1, 2014 to May 26, 2018, for 

which she was without fault, as she concurrently received Social Security Administration (SSA) 

age-related retirement benefits while in receipt of FECA compensation benefits. 

Commencing August 11, 2006, OWCP paid appellant wage-loss compensation for total 

disability due to her accepted injury. Commencing March 1, 2014, appellant received SSA 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 SSA age-related 

retirement benefits were attributable to her federal service. As OWCP neglected to offset her

FECA benefits for the period March 1, 2014 to May 26, 2018, she received an overpayment of 

wage-loss compensation.12

 

6 5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

Id. at § 8129(a).

9 20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued 

March 19, 2019); L.J., 59 ECAB 264 (2007).

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

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

12 Id.
5

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 amount of age-related SSA 

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

with FERS and without FERS for specific periods beginning March 1, 2014.13 OWCP provided 

its calculations of the amount that it should have offset for each relevant period based on SSA’s

documentation. The Board has reviewed OWCP’s calculations and finds that it properly 

determined that appellant received prohibited dual benefits totaling $50,438.34, 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 FECA16

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.” Thus, a finding that appellant was 

without fault does not automatically result in waiver of recovery of the overpayment. OWCP must 

then 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, 

 

13 Documentation from SSA provided applicable rates effective the following dates: March 1 and December 1, 

2014, December 1, 2015, December 1, 2016, and December 1, 2017.

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

15 See J.R., Docket No. 19-1418 (issued March 4, 2020); P.J., Docket No. 18-0248 (issued August 14, 2018); Robert 

Atchison, 41 ECAB 83, 87 (1989).

16 5 U.S.C. § 8129(1)-(b); A.C., Docket No. 18-1550 (issued February 21, 2019); see D.C., Docket No. 17-0559 

(issued June 21, 2018).

17 A.C., id.; 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).
6

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

Section 10.438 of OWCP’s regulations provides 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. Failure 

to submit the requested information within 30 days of the request shall result in denial of waiver 

of recovery of the overpayment.

22

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 she has not shown both that she needs substantially all of her current income to 

meet ordinary and necessary living expenses and that her assets do not exceed the allowable 

resource base. The Board finds that appellant, who reported $43,150.00 in assets, has not met the 

standard for waiver of recovery of the overpayment because her assets exceed the allowable 

resource base. Appellant reported assets of $50.00 in cash on hand, $100.00 in her checking 

account, and $43,000.00 in her savings account. She suggested that a portion of her savings 

account was in her children’s names “in case of emergency” following the sale of a home, but she 

did not clarify the nature of any such potential entitlement and the monies in the saving account 

must be considered to belong to her as she reported that $43,000.00 was the balance of her own 

savings account.

23

 Because appellant has not met the second prong of the two-prong test of 

whether recovery of the overpayment would defeat the purpose of FECA, it is not necessary for 

OWCP to consider the first prong of the test, i.e., whether she needs substantially all of her current 

income to meet ordinary and necessary living expenses.24

 

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 Id. at § 10.438.

23 See supra note 18.

24 Id.
7

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

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

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

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

overpayment.25

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 failed to show that OWCP 

improperly refused to waive recovery of the overpayment.26

On appeal counsel argues that OWCP improperly denied appellant’s request for waiver of 

recovery of the overpayment because it overstated her monthly income amount and understated 

her monthly expenses. However, the Board notes that the fact that appellant’s assets exceed the 

allowable resource base served as the basis for denial of appellant’s waiver request. In addition, 

the Board notes that counsel has not presented sufficient argument, supported by relevant 

precedent, to demonstrate that OWCP made an improper determination regarding appellant’s 

monthly income and expenses.

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.27 Section

10.441(a) of the regulations provides:

“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.”

28

ANALYSIS -- ISSUE 3

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

$300.00 every 28 days from appellant’s continuing compensation payments. 

The record supports that, in requiring repayment of the overpayment by deducting $300.00 

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

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

 

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

26 See supra note 17.

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

Rodriguez, 51 ECAB 295 (2000); Albert Pineiro, 51 ECAB 310 (2000).

28 20 C.F.R. § 10.441(a); see A.F., Docket No. 19-0054 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 

1056, 1062 (1988).
8

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

29

 It 

indicated that appellant had $4,831.00 in monthly income and $3,125.00 in documented monthly 

expenses, and that she had reported $43,150.00 in assets. Therefore, OWCP properly required 

recovery of the overpayment by deducting $300.00 every 28 days from appellant’s continuing 

compensation payments.

On appeal counsel argues that OWCP did not adequately consider the financial impact on 

appellant of having $300.00 deducted every 28 days from her continuing compensation payments. 

However, as noted, OWCP considered appellant’s monthly income, monthly expenses, and assets 

when making its determination regarding the method of recovery of the overpayment. 

CONCLUSION

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

of compensation in the amount of $50,438.34 for the period March 1, 2014 to May 26, 2018, for 

which she was without fault, as she concurrently received SSA age-related retirement benefits 

while in receipt of FECA compensation benefits. The Board further finds that OWCP properly 

denied waiver of recovery of the overpayment, and properly required recovery of the overpayment 

by deducting $300.00 every 28 days from appellant’s continuing compensation payments. 

ORDER

IT IS HEREBY ORDERED THAT the August 13, 2018 decision of the Office of

Workers’ Compensation Programs is affirmed.

Issued: June 2, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

29 See id.