United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.W., Appellant

and

U.S. POSTAL SERVICE, CHICAGO CENTRAL 

POST OFFICE, Chicago, IL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-1984

Issued: June 11, 2020

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 30, 2019 appellant filed a timely appeal from an August 16, 2019 merit 

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

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

ISSUES

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

overpayment of compensation in the amount of $24,262.79, for which she was not at fault, as she 

concurrently received Social Security Administration (SSA) age-related retirement benefits while 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the August 16, 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

receiving FECA wage-loss compensation benefits for the period February 1, 2018 through 

April 27, 2019; (2) whether OWCP properly denied waiver of recovery of the overpayment; and 

(3) whether OWCP properly required repayment of the overpayment by deducting $324.30 every 

28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

This case has previously been before the Board.

3

 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On February 12, 1997 appellant, then a 44-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she sustained muscle strain and groin pain 

from lifting mail trays while in the performance of duty. OWCP accepted the claim for a groin 

strain and displacement of lumbar intervertebral disc without myelopathy and herniated disc at 

L5-S1. The acceptance of the claim was subsequently expanded to include displacement of 

cervical intervertebral disc without myelopathy, right shoulder sprain and rotator cuff tear; left 

shoulder disorder of bursae and tendons, and sprain of other specified sites. OWCP initially paid 

appellant wage-loss compensation benefits on the supplemental rolls and then on the periodic rolls

as of June 15, 2003. Appellant returned to limited-duty work on July 21, 2005. OWCP 

subsequently paid her wage-loss benefits for temporary total disability on the periodic rolls again 

as of May 8, 2011. 

On EN1032 forms dated February 7, 2014, February 3, 2015, February 20, 2016, March 3, 

2017, February 19, 2018, and February 18, 2019 appellant reported receipt of SSA benefits as part 

of an annuity for federal service. In her February 19, 2018 EN1032 form, she indicated that the 

SSA benefit increased as her benefit changed from disability to retirement. 

On April 15, 2019 OWCP received an April 10, 2019 completed Federal Employees 

Retirement System (FERS)/SSA dual benefits calculation form, which indicated SSA benefit rates 

with a FERS offset and without a FERS offset from February through December 2018. The SSA 

representative noted that, effective February 2018, the SSA rate with FERS was $1,680.80 and 

without FERS was $63.80; and effective December 2018, the SSA rate with FERS was $1,727.80 

and without FERS was $65.50.

A FERS offset calculation worksheet dated May 21, 2019 noted each period of 

overpayment and provided corresponding calculations, which resulted in a total overpayment of 

$24,262.79 during the period February 1, 2018 through April 27, 2019. An overpayment in the 

amount of $16,152.23 was noted for the period February 1 through November 30, 2018 and an 

overpayment of $8,110.56 was noted for the period December 1, 2018 through April 27, 2019.

In a May 21, 2019 letter, OWCP advised appellant that she had been in receipt of prohibited 

dual benefits from FERS and the SSA. It notified her that FECA benefits must be adjusted based 

on the FERS portion of SSA benefits that were attributable to federal service and informed her of 

 

3 Docket No. 09-2194 (issued September 23, 2010). 
3

the new amount, which included health benefit deductions. The date of the adjustment was 

effective April 28, 2019.

In a preliminary determination dated July 17, 2019, OWCP informed appellant that she 

received an overpayment of compensation in the amount of $24,262.79 because the SSA/FERS 

offset was not applied to payments for the period February 1, 2018 through April 27, 2019. It 

determined that she was without fault in the creation of the overpayment, because she was not 

aware, nor could she reasonably have been expected to know, that it had paid her compensation 

incorrectly. OWCP requested that appellant submit a completed overpayment recovery 

questionnaire (Form OWCP-20) to determine a fair repayment method, and advised her that she 

could request a waiver of recovery of the overpayment. It requested financial information, 

including copies of income tax returns, bank account statements, bills, pay slips, and any other 

records to support income and expenses. OWCP advised appellant that it would deny waiver if 

she failed to furnish the requested financial information within 30 days. It further 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. No additional evidence was received.

By decision dated August 16, 2019, OWCP finalized its preliminary determination that 

appellant had received an overpayment of compensation in the amount of $24,262.79 because the 

SSA/FERS offset was not applied to wage-loss compensation payments for the period February 1, 

2018 through April 27, 2019. While appellant was without fault in the creation of the 

overpayment, OWCP denied waiver of recovery of the overpayment as no evidence was received 

in response to the preliminary determination and subsequent request for financial information. 

Beginning August 18, 2019, the sum of $324.30 would be withheld from appellant’s continuing 

compensation payments until the overpayment was recovered in full.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of his 

or her federal employment.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 When an overpayment of compensation 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.6

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

amount of compensation by the amount of SSA age-based benefits that are attributable to federal 

service of the employee.7 FECA Bulletin No. 97-09 provides that FECA benefits have to be 

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7 20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).
4

adjusted for the FERS portion of SSA benefits because the portion of the SSA 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.8

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $24,262.79, for which she was not at fault, as she concurrently 

received SSA age-related retirement benefits while receiving FECA wage-loss compensation 

benefits for the period February 1, 2018 through April 27, 2019.

As noted, a claimant cannot receive concurrent FECA compensation for wage-loss and 

SSA age-related retirement benefits attributable to federal service for the same period.9 The 

information provided by SSA accurately indicated that appellant had received SSA age-related 

retirement benefits that were attributable to her federal service from February 1, 2018. This 

continued through Apri1 27, 2019, after which OWCP adjusted her compensation. Thus, the 

record establishes that appellant received an overpayment of FECA wage-loss compensation.10

To determine the amount of the overpayment, the portion of the SSA age-related retirement 

benefits that were attributable to federal service must be calculated. The Board finds that OWCP 

properly determined the amount of the overpayment. To determine the amount of the 

overpayment, the SSA provided appellant’s SSA rate with FERS and without FERS during the 

applicable period. OWCP determined that the difference of the portion of SSA age-related 

retirement benefits attributed to appellant’s federal service needed to be offset against her OWCP 

compensation benefits. This amount differed for each period beginning February 1 and 

December 1, 2018. OWCP calculated that the lack of offset from February 1, 2018 through 

April 27, 2019 resulted in an overpayment of compensation in the amount of $24,262.79. 

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

appellant received prohibited dual benefits totaling $24,262.79, thus creating an overpayment of 

compensation in that amount, for the period February 1, 2018 through April 24, 2019. 

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the 

United States may not be made when incorrect payment has been made to an individual who is not 

at fault and when adjustment or recovery would defeat the purpose of this subchapter or would be 

against equity and good conscience.”

11

 

8 FECA Bulletin No. 97-09 (February 3, 1997).

9 20 C.F.R. § 10.421(d); see also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550 

(issued February 21, 2019).

10 See R.R., Docket No. 19-0104 (issued March 9, 2020). 

11 5 U.S.C. § 8129(b).
5

Section 10.437 of FECA’s implementing regulations provides that recovery of an 

overpayment is considered to be against equity and good conscience when an individual who 

received an overpayment of compensation 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.12

Section 10.438 of the implementing 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 on 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.13 Failure to submit 

the requested information within 30 days of the request shall result in denial of waiver.14

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $24,262.79 

overpayment of compensation.

As OWCP found appellant without fault in the creation of the overpayment, waiver 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.15 Appellant, 

however, had the responsibility to provide the appropriate financial information and 

documentation to OWCP.16

In its preliminary determination dated July 17, 2019, OWCP clearly explained the 

importance of providing the completed Form OWCP-20 and financial information, including 

copies of income tax returns, bank account statements, bills, pay slips, and any other records to 

support income and expenses. It advised appellant that it would deny waiver of recovery if she 

failed to furnish the requested financial information within 30 days. However, prior to the 

August 16, 2019 decision, appellant did not complete a Form OWCP-20, nor did she submit any 

supporting financial documentation necessary for OWCP to determine if recovery of the 

 

12 20 C.F.R. § 10.437.

13 Id. at § 10.438(a); see T.B., supra note 7; Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

14 Id. at § 10.438.

15 Id. at § 10.436.

16 Id. at § 10.438.
6

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

conscience. 

Consequently, as appellant did not submit the information required under 20 C.F.R. 

§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the 

Board finds that OWCP properly denied waiver of recovery of the overpayment.17

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.18 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.”

19

ANALYSIS -- ISSUE 3

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

$324.30 from appellant’s continuing compensation payments every 28 days.

The record reflects that appellant continues to receive wage-loss compensation under 

FECA. Appellant, as noted, did not provide sufficient information necessary for OWCP to 

consider the amount to be withheld from her continuing compensation. OWCP found that 

beginning August 18, 2019 recovery of the overpayment would occur at the rate of $324.30 every 

28 days to recover the overpayment in full. It thus gave due regard to the relevant factors noted 

above.

The Board, therefore, finds that OWCP properly determined appellant’s repayment 

schedule.

CONCLUSION

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

$24,262.79, for which she was not at fault, as she concurrently received SSA age-related retirement 

benefits while receiving FECA wage-loss benefits for the period February 1, 2018 through 

 

17 See R.R., supra note 10; T.E., Docket No. 19-0348 (issued December 11, 2019).

18 See E.F., Docket No. 18-1320 (issued March 13, 2019); C.H., Docket No. 18-0772 (issued November 14, 2018); 

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

19 20 C.F.R. § 10.441(a).
7

April 27, 2019. The Board also finds that OWCP properly denied waiver of recovery of the 

overpayment and properly required recovery of the overpayment by deducting $324.30 every 28 

days from appellant’s continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the August 16, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 11, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board