United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Brookfield, MO, Employer

__________________________________________

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Docket No. 20-0694

Issued: December 31, 2020

Appearances: Case Submitted on the Record

Patricia Lambert, 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 February10, 2020 appellant, through her representative, filed a timely appeal from a 

January 10, 2020 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 OWCP received additional evidence following its January 10, 2020 decision. 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 $22,439.23, for the period December 19, 2016 through January 31, 2019, for which she 

was not at fault, because she concurrently received FECA wage-loss compensation benefits and 

Social Security Administration (SSA) age-related retirement benefits without an appropriate 

offset; and (2) whether OWCP properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On November 4, 2016 appellant, then an 83-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 3, 2016 she sustained fractures on the left side of 

her face when she was involved in a motor vehicle accident while in the performance of duty. 

Appellant’s supervisor listed appellant’s retirement coverage as Federal Employees’ Retirement 

System (FERS).4 On December 13, 2016 OWCP accepted the claim for acute embolism and 

thrombosis of left femoral vein, pleural effusion, closed fracture of right hip, saddle embolus of 

pulmonary artery without acute cor pulmonale, acute embolism and thrombosis of deep veins of 

left proximal lower extremity, acute respiratory failure with hypoxia hypotension, displaced closed 

spiral fracture of shaft of right arm humerus, lip laceration without foreign body, bilateral lefort I 

fractures, and iron deficiency anemia secondary to blood loss. OWCP paid appellant wage-loss 

compensation on the supplemental rolls effective December 19, 2016, and on the periodic rolls

effective February 5, 2017.5

On April 24, 2019 SSA forwarded a FERS/SSA dual benefits calculation form. The form 

reported appellant’s monthly SSA benefit rates as follows: effective December 19, 2016

appellant’s SSA monthly rate with FERS was $1,763.40, and without FERS was $914.80; effective 

January 2017 appellant’s SSA monthly rate with FERS was $1,783.00, and without FERS was 

$914.80; effective December 2017 appellant’s SSA monthly rate with FERS was $1,818.60, and 

without FERS was $933.10; and effective December 2018 appellant’s SSA monthly rate with 

FERS was $1,869.50, and without FERS was $959.20. 

A FERS offset calculation sheet compiled by OWCP on May 28, 2019 computed an 

overpayment in the amount of $22,439.23, for the period December 19, 2016 through 

January 31, 2019. OWCP converted the monthly FERS offset to a 28-day FERS offset and 

determined that during the period December 19 to 31, 2016 an overpayment existed in the amount 

of $363.68, for the period January 1 to November 30, 2017 an amount of $9,559.80, from 

December 1, 2017 to November 30, 2018 an amount of $10,655.13, from December 1, 2018 to 

January 31, 2019 an amount of $1,860.62.

In a preliminary overpayment determination dated June 5, 2019, OWCP advised appellant 

that she had received an overpayment of compensation in the amount of $22,439.23, for the period 

 

4 Appellant’s Notification of Personnel Action (Form SF-50) dated July 31, 2017, also listed her retirement coverage 

as FERS. 

5 By decision dated February 4, 2019, OWCP granted appellant a schedule award for 22 percent permanent 

impairment of the right arm and 20 percent permanent impairment of the right leg. The period of the award, equivalent 

to 126.24 weeks of compensation, ran from February 1, 2019 to July 3, 2021. Appellant’s wage-loss compensation 

payments were suspended January 31, 2019, during the period of the schedule award.
3

December 19, 2016 through January 31, 2019, because compensation was not reduced by the 

FERS/FECA offset. It found that appellant was without fault in creating the overpayment because 

she relied on misinformation given in writing by OWCP or another government agency which she 

had reason to believe was connected with the administration of her benefits, and there was no 

reason to believe that she knew, or should have known, the proper course of action to be followed. 

Appellant was informed that, if she believed the overpayment should be waived, she should 

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

supporting financial documentation within 30 days. 

On June 27, 2019 appellant completed an overpayment action request form. She indicated

that she wished to contest the overpayment, disagreed that an overpayment occurred, disagreed 

with the amount of the overpayment, and requested a waiver because she was found to be without 

fault in the creation of the overpayment. Appellant submitted a statement explaining her work 

history and describing the November 3, 2016 injury. She noted that her husband was killed in a 

farm accident in 2007, that she was able to care for herself, but she was unable to drive, required 

help to complete household chores, and relied on her family for care. No additional evidence was 

received.

By decision dated January 10, 2020, OWCP finalized the June 5, 2019 overpayment 

determination in the amount of $22,439.23, for the period December 19, 2016 through 

January 31, 2019. It found that appellant was without fault in the creation of the overpayment, but

denied waiver of recovery of the overpayment as she had not provided any financial information 

regarding her income and expenses. OWCP requested that appellant forward recovery of the 

$22,439.23 overpayment in full within 30 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.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 OWCP to reduce the 

amount of compensation by the amount of any SSA age-related retirement benefits that are 

attributable to the employee’s federal service.8 FECA Bulletin No. 97-09 states 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

 

6 5 U.S.C. § 8102(a).

7

Id. at § 8116.

8 20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued 

October 23, 2019); S.M., Docket No. 17-1802 (issued August 20, 2018).

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

ANALYSIS -- ISSUE 1

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

$22,439.23, for the period December 19, 2016 through January 31, 2019, for which she was not at 

fault, because she concurrently received FECA wage-loss compensation benefits and SSA agerelated retirement benefits without an appropriate offset.

OWCP paid appellant FECA wage-loss compensation from December 19, 2016, until 

February 1, 2019 when she received a schedule award. However, it paid her wage-loss 

compensation until January 31, 2019, without offsetting the portion of the SSA age-related 

retirement benefits due to her federal service. As discussed, a claimant cannot receive both 

compensation for wage loss and the portion of SSA age-related retirement benefits that are 

attributable to federal service for the same period.10 Appellant received SSA age-based retirement 

benefits based on her federal service concurrently with disability compensation from OWCP 

without an appropriate offset and thus received an overpayment of compensation. The record 

establishes fact of overpayment. 

To determine the amount of the overpayment, OWCP must calculate the portion of the 

SSA benefits that were attributable to federal service. It received documentation from SSA 

providing appellant’s SSA rate with FERS and without FERS for the period December 19, 2016 

through January 31, 2019. OWCP calculated the amount that OWCP should have offset during 

the relevant period based on the information provided by SSA. It modified the amount of the 

overpayment by reducing appellant’s monthly SSA benefit attributable to federal service to a 28-

day benefit, which was then subtracted from appellant’s FECA benefits, which she received every 

28 days. No contrary evidence was provided. The Board has reviewed OWCP’s calculation of 

benefits for the period December 19, 2016 through January 31, 2019, and finds that an 

overpayment of compensation in the amount of $22,439.23 was created.11

LEGAL PRECEDENT -- ISSUE 2

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.”

12

 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.13

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 

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 

 

10 Id.; see also L.G., Docket No. 19-1274 (issued July 10, 2020).

11 LG., id.; R.B., Docket No. 19-0571 (issued June 12, 2020).

12 5 U.S.C. § 8129.

13 L.S., 59 ECAB 350 (2008).
5

from data provided by the Bureau of Labor Statistics.14 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 position for the worse.15 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.16

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.17 Failure to submit the requested information 

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

for waiver shall be considered until the requested information is furnished.18

ANALYSIS -- ISSUE 2

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

OWCP found that appellant was without fault in the creation of the overpayment of 

compensation. The fact that a claimant is without fault, however, does not preclude OWCP from 

recovering the overpayment.19 Waiver is only possible if recovery would defeat the purpose of 

FECA or be against equity and good conscience.20 Appellant, however, did not provide the 

required financial documentation to OWCP.21

In its preliminary determination dated June 5, 2019, OWCP explained the importance of 

providing the completed overpayment recovery questionnaire (Form OWCP-20) and supporting 

financial documentation. It advised appellant that it would deny waiver of recovery if she failed 

to furnish the requested financial information within 30 days. No additional evidence was 

received. As a result, OWCP did not have the necessary financial information to determine 

whether waiver of recovery of the overpayment would defeat the purpose of FECA or would be 

 

14 20 C.F.R. § 10.436.

15 Id. at § 10.437.

16 Id. at § 10.437(b)(1).

17 Id. at § 10.438(a); see R.L., Docket No. 19-1786 (issued July 6, 2020); M.S., Docket No. 18-0740 (issued 

February 4, 2019).

18 Id. at § 10.438(b).

19 See L.D., Docket No. 19-0606 (issued November 21, 2019); R.B., Docket No. 15-0808 (issued October 26, 2015).

20 Supra note 14; J.C., Docket No. 19-0122 (issued June 11, 2019).

21 Id. at § 10.438(b); M.D., Docket No. 19-1500 (issued February 24, 2020); T.J., Docket No. 19-1242 (issued 

January 13, 2020).
6

against equity and good conscience.22 It was, therefore, required to deny waiver of recovery of 

the overpayment.23

CONCLUSION

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

$22,439.23, for the period December 9, 2016 through January 31, 2019, for which she was not at 

fault, because she concurrently received FECA wage-loss compensation benefits and SSA agerelated retirement benefits without an appropriate offset. The Board further finds that OWCP 

properly denied waiver of recovery of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the January 10, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 31, 2020

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

 

22 See E.M., Docket No. 19-0857 (issued December 31, 2019).

23 Supra note 18.