United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, Radnor, PA, Employer

__________________________________________

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Docket No. 21-0230

Issued: December 14, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 24, 2020 appellant filed a timely appeal from a June 1, 2020 merit decision 

of the Office of Workers’Compensation Programs (OWCP).1 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.

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $57,937.65 for the period January 1, 2015 through 

March 28, 2020 for which he was without fault, as he concurrently received FECA wage-loss 

1 The Board notes that following the June 1, 2020 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

5 U.S.C. § 8101 et seq.
2

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

appropriate offset; (2) whether itproperly denied waiver of recovery of the overpayment; and 

(3) whether OWCP properly required recovery of the overpayment by deducting $521.00 every 28 

days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On July 22, 1998 appellant, then a 49-year-old firefighter and member of fire and aviation 

management staff, filed an occupational disease claim (Form CA-2) alleging that he developed 

post-traumatic stress disorder (PTSD), major depression, and anxiety due to factors of his federal 

employment. On the reverse side of the claim form his supervisor indicated that he stopped work 

on March 17, 1998 and that his employment had been terminated. On February 19, 1999 OWCP

accepted appellant’s claim for PTSD and major depression. On July 11, 1998 he elected to receive 

FECA benefits in lieu of Office of Personnel Management (OPM) benefits. On April 26, 2000 the 

employing establishment indicated that appellant’s retirement benefits were covered under the 

Federal Employees Retirement System (FERS).

On March 6, 2020 OWCP forwarded a FERS/SSA dual benefits worksheet to the SSA to 

determine whether an offset of compensation benefits was required.

On March 17, 2020 OWCP received a completed (FERS)/(SSA) dual benefits worksheet

from SSA, which reported that appellant had been in receipt of SSA age-related retirement benefits 

since May 1998. The form listed her SSA age-related retirement benefit rates with FERS and 

without FERS as follows: beginning January 2015 appellant’s monthly SSA rate with FERS was 

$1,598.90 and without FERS was $697.90; beginning December 2015 through November 2016 

his monthly SSA rate with FERS was $1,598.90 and without FERS was $697.90; beginning

December 2016 through November 2017 his monthly SSA rate with FERS was $1,604.00 and 

without FERS was $700.00; beginning December 2017 through November, 30, 2018 his monthly 

SSA rate with FERS was $1,636.00 and without FERS was $714.00; beginning December 2018

through November 2019 his monthly SSA rate with FERS was $1,681.50 and without FERS was 

$734.50; and beginning December 2019 appellant’s monthly SSA rate with FERS was $1,708.60 

and without FERS was $745.60.

In an April 15, 2020 letter, OWCP advised appellant that he had been receiving dual FERS 

and SSA age-related retirement benefits without an appropriate offset. It further informed him 

that his FECA wage-loss compensation benefits must be adjusted based on the FERS portion of 

SSA benefits that were attributable to federal service. OWCP explained that appellant’s

compensation payments would be offset by the portion of his SSA retirement benefits attributable 

to his federal service on account of age, resulting in a new net compensation payment of $2,376.08, 

every 28 days.

On April 15, 2020 OWCP made a preliminary overpayment determination finding that 

appellant had received an overpayment of compensation in the amount of $57,937.65 for which 

he was withoutfault, because his wage-loss compensation payments for the period January 1, 2015

through March 28, 2020 had not been reduced to offset his SSA age-related retirement benefits 

attributable to his federal service. It explained that it had calculated the overpayment of 

compensation by determining the difference between appellant’s SSA benefit rates with and 
3

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

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

requested that he complete an overpayment recovery questionnaire (Form OWCP-20) and submit 

supporting financial documentation to determine a reasonable repayment schedule and advised 

that he could request waiver of recovery. OWCP further requested that appellant provide 

supporting financial documentation, including copies of income tax returns, bank account 

statements, bills, pay slips, and any other records to support income and expenses. Additionally, 

it provided an overpayment action request form and notified him that within 30 days of the date of 

the letter, he could request a final decision based on the written record,or a prerecoupment hearing.

OWCP completed a FERS offset overpayment calculation worksheet on April 15, 2020. It 

determined the overpayment amount by multiplying the daily FERS offset amount by the number 

of days in each period from January 1, 2015 through March 28, 2020, resulted in a total 

overpayment of $57,937.65. OWCP determined that: from January 1 through November 30, 

2015, appellant received an overpayment in the amount of $9,920.90; from December 1, 2015

through November 30, 2016, he received an overpayment in the amount of $10,871.41; from 

December 1, 2016 through November 30, 2017, appellant received an overpayment in the amount 

of $10,877.80; from December 1, 2017 through November 30, 2018, he received an overpayment 

in the amount of $11,094.40; from December 1, 2018 through November 30, 2019, appellant 

received an overpayment in the amount of $11,395.22; and from December 1, 2019 through

March 28, 2020, he received an overpayment in the amount of $3,777.92. 

In an overpayment action request form dated May 12, 2020, appellant requested that 

OWCP make a decision based on the written evidence and requested waiver of recovery because 

he was without fault in the creation of the overpayment. He submitted a May 7, 2020 Form 

OWCP-20 listing his monthly income of $3,649.84 including $1,564.00 in SSA ben efits, and 

$2,085.84 in FECA benefits. Appellant listed his monthly expenses of housing $800.00, food 

$600.00, clothing $400.00, utilities $500.00, and miscellaneous expenses of $2,000.00 for total 

monthly expenses of $4,300.00. He listed assets of $99,116.00 with cash $100.00, checking 

account $2,081.00, and savings account of $96,935.00. Appellant also noted that he had a Thrift 

Savings Plan account.

By decision dated June 1, 2020, OWCP finalized its preliminary overpayment 

determination that appellant had received an overpayment of compensation in the amount of 

$57,937.65 for the period January 1, 2015 through March 28, 2020. It determined that he was 

without fault in the creation of the overpayment. OWCP denied waiver of recovery of the 

overpayment, noting that appellant provided no financial documentation to support his reported 

monthly expenses. It required recovery of the overpayment by deducting $521.00 every 28 days 

from his 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 
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performance of his or her duty.3 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.4

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.5 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.6

ANALYSIS -- ISSUE 1

The Board finds that appellant received a $57,937.65 overpayment of compensation for the 

period January 1, 2015 through March 28, 2020 for which he was without fault, because he 

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

without appropriate offset. 

A claimant cannot receive both FECA compensation for wage-loss and SSA age-related 

retirement benefits attributable to federal service for the same period.7 The information provided 

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

to federal service during the period January 1, 2015 through March 28, 2020. The Board, thus,

finds that fact of overpayment is established.

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 retirement benefits that were attributable to 

federal service. SSA provided their rate with FERS, and without FERS f or specific periods 

commencing January 1, 2015 through March 28, 2020. OWCP provided its calculations for each 

relevant period based on a FERS offset calculation worksheet and in its April 15, 2020 preliminary 

overpayment determination.

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

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).

6 FECA Bulletin No. 97-09 (issued February3, 1997); N.B., Docket No. 18-0795 (issued January 4, 2019).

7

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

period January 1, 2015 through March 28, 2020 and finds that an overpayment of compensation 

in the amount of $57,937.65 was created.8

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. 9 

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.10

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. 11 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 $50.00.12

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 

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.13

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 

8 L.L., Docket No. 18-1103 (issued March5, 2019); D.C.,Docket No. 17-0559 (issued June 21, 2018).

9

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).

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

11 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).

12 N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 (issued April26, 2019); id. at 

Chapter 6.400.4.a(3).

13 20 C.F.R. § 10.437(a)(b).
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determine the repayment schedule, if necessary.14 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.15

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.16

While appellant submitted a completed Form OWCP-20 dated August 6, 2020, he failed to 

furnish any financial documentation to support his income and expenses. OWCP found that he 

did not provide the requested information regarding income, expenses, debts, and assets necessary 

to determine whether recovery of the overpayment would defeat the purpose of FECA or be against 

equity and good conscience. It found that absent complete documentation of appellant’s expenses 

and assets the evidence was insufficient to establish that recovery of the overpayment would defeat 

the purposes of FECA or be against equity and good conscience.17 

As appellant did not submit the financial documentation to OWCP as requested, the Board 

finds that there is no evidence of record to establish that OWCP erred in requiring recovery of the

overpayment.

Appellant failed to establish that recovery of the overpayment of compensation would 

either defeat the purpose of FECA or be against equity and good conscience, the Board finds, 

therefore, that OWCP properly denied waiver of recovery.18

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 his attention is called to the same. If no 

refund is made, OWCP shall decrease later payments of compensation, taking into account the 

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

15 Id. at § 10.438(b).

16 20 C.F.R. § 10.436.

17 J.W., Docket No. 20-0857 (issued March 24, 2021).

18 Supra note 17.
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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.19

ANALYSIS -- ISSUE 3

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

$521.00 every 28 days from appellant’s continuing compensation payments. 

OWCP provided appellant a Form OWCP-20 with the April 15, 2020 preliminary 

overpayment determination. Appellant completed Form OWCP-20, but did not provide the 

necessary financial documentation to support his income and expenses prior to the June 1, 2020 

decision. The overpaid individual is responsible for providing information about income, 

expenses, and assets as specified by OWCP.20 When an individual fails to provide requested 

financial information, OWCP should follow minimum collection guidelines designed to collect 

the debt promptly and in full.21 

OWCP gave due regard to the information submitted, as well as the f actors set forth in 20 

C.F.R. § 10.441 and found that this method of recovery would minimize resulting hardship. 

Therefore, it properly required recovery of the overpayment by deducting $144.14 every 28 days 

from appellant’s continuing compensation payments.22

The Board therefore finds that OWCP properly required recovery of the overpayment from 

appellant’s continuing compensation payments at the rate of $521.00 every 28 days.

CONCLUSION

The Board finds appellant received a $57,937.65 overpayment of compensation for the 

period January 1, 2015 through March 28, 2020, for which he was without fault, because he 

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

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

of the overpayment and properly required recovery of the overpayment by deducting $521.00 from 

his continuing compensation payments every 28 days.

19 20 C.F.R. § 10.441(a); A.F., supranote 9; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

20 20 C.F.R. § 10.438. B.G., Docket No. 20-0541 (issued April28, 2021); A.F., Docket No. 19-0054 (issued 

June 12, 2019).

21 A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).

22 M.B., Docket No. 20-1578 (issued March 25, 2021).
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ORDER

IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 14, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board