United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.K., Appellant

and

U.S. POSTAL SERVICE, CLIFFSIDE PARK 

POST OFFICE, Cliffside Park, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-0266

Issued: December 6, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 17, 2020 appellant, through counsel, filed a timely appeal from a 

November 5, 2020 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 over 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 November 5, 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

ISSUES

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

overpayment of compensation in the amount of $11,022.12, for which he was without fault, 

because he concurrently received FECA wage-loss compensation and Social Security 

Administration (SSA) age-related retirement benefits for the period June 1, 2018 through 

October 12, 2019, without an appropriate offset; (2) whether it properly denied waiver of recovery 

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

deducting $350.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On November 2, 2007 appellant, then a 55-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained lower lumbar back pain due to factors of his 

federal employment. OWCP initially accepted the claim for aggravation of lumbosacral 

spondylolysis. 

Appellant completed a claim for compensation (Form CA-7) on February 22, 2008 wherein 

he noted his retirement system as Federal Employees Retirement System (FERS). 

On November 26, 2012 OWCP expanded acceptance of the claim to include chronic pain 

syndrome, lumbar spinal stenosis, right ankle/foot derangement, and other acquired deformities of 

the right ankle/foot. The record reflects that OWCP paid appellant wage-loss compensation on 

the supplemental rolls as of December 13, 2007 and on the periodic rolls as of March 16, 2008.

On October 8, 2019 OWCP forwarded a FERS/SSA dual benefits calculation transmittal 

form to SSA to obtain information as to whether an offset of compensation benefits was required. 

On October 21, 2019 OWCP received from SSA a completed FERS/SSA dual benefits 

calculation form which indicated that appellant had been in receipt of SSA age-related retirement 

benefits since June 1, 2018. The form showed SSA benefit rates with and without a FERS offset. 

Beginning June 1, 2018, the SSA rate with FERS was $1,907.80, and without FERS was 

$1,249.50; and beginning December 1, 2018, the SSA rate with FERS was $1,961.20, and without 

FERS was $1,284.40.

OWCP certified a FERS offset calculation worksheet on November 1, 2019. It calculated 

the overpayment amount by determining the daily FERS offset amount and multiplying that 

amount by the number of days in each period from June 1, 2018 through October 12, 2019, 

resulting in a total overpayment amount of $11,022.12. This form indicated that from June 1 

through November 30, 2018 appellant received an overpayment in the amount of $3,971.50, and 

from December 1, 2018 through October 12, 2019, he received an overpayment in the amount of 

$7,050.62.

In a November 14, 2019 letter, OWCP informed appellant that it would begin deducting 

the portion of SSA age-related retirement benefits attributable to his federal service from his 28-

day periodic compensation benefits. It determined that appellant would receive a net payment 

every 28 days of $2,029.38. 
3

On June 11, 2020 OWCP issued a preliminary overpayment determination, finding that an 

overpayment of compensation in the amount of $11,022.12 had been created because it had failed 

to reduce appellant’s wage-loss compensation payments for the period June 1, 2018 through 

October 12, 2019, to offset his SSA age-related retirement benefits that were attributable to federal 

service. It determined that he was without fault in the creation of the overpayment because he 

could not have reasonably known that an improper payment had occurred, due to the complexity 

in benefits administration.

OWCP requested that appellant submit a completed overpayment recovery questionnaire 

(Form OWCP-20) to determine a reasonable payment method and advised him that he could 

request a waiver of the overpayment. It further requested that he 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, OWCP provided an 

overpayment action request form and further notified appellant that, within 30 days of the date of 

the letter, he could request a telephone conference, a final decision based on the written evidence, 

or a prerecoupment hearing. 

On June 22, 2020 OWCP received appellant’s request for a prerecoupment hearing, which 

was held on September 9, 2020. Appellant disagreed that an overpayment occurred and disagreed 

with the amount of the overpayment. During the hearing, he noted that he only had $500.00 in his 

checking account. The hearing representative advised appellant to submit supporting financial 

documentation. 

On July 13, 2020 OWCP received appellant’s June 27, 2020 Form OWCP-20 and on 

September 22, 2020, it received a list of appellant’s monthly income and expenses. Appellant 

reported total monthly income of $4,798.20 and total monthly expenses of $4,446.00. 

On October 5, 2020 OWCP received a bank statement, for the period August 26 to 

September 24, 2020, which showed an ending balance of $1,425.74. 

By decision dated November 5, 2020, OWCP’s hearing representative finalized the 

preliminary overpayment determination, finding that appellant had received an overpayment of 

compensation in the amount of $11,022.12 for the period June 1, 2018 through October 12, 2019, 

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

compensation benefits without a proper offset. She also found that he was without fault in the 

creation of the overpayment, but denied waiver of recovery of the overpayment. The hearing 

representative found that appellant provided financial information that established a monthly 

household income of $4,753.96 and that he listed expenses of $4,471.00, however, supporting 

documentation was not provided for the listed expenses. She concluded that, without supporting 

documentation, appellant’s household income versus expenses could not be determined. The 

hearing representative found that appellant receivednet payment of $2,077.16 on the periodic rolls

every 28 days, therefore, recovery of the overpayment would be made by deducting $350.00 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 of an employee resulting from personal injury sustained while in the performance of his 
4

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 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 the implementing regulations requires that OWCP reduce the amount 

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

federal service of the employee.7 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.8

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $11,022.12, for which he was without fault, because he 

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

the period June 1, 2018 through October 12, 2019, without an appropriate offset.9 The evidence 

of record indicates that, while appellant was receiving wage-loss compensation benefits under 

FECA, he also was receiving SSA age-related retirement benefits based upon his federal service. 

A claimant cannot receive both compensation for wage-loss compensation benefits under FECA 

and SSA age-related retirement benefits attributable to federal service for the same period. 10 The 

information provided by SSA established that appellant received SSA age-related retirement 

benefits that were attributable to federal service during the period June 1, 2018 thorough 

October 12, 2019. Consequently, the fact of overpayment has been established.

To determine the amount of the overpayment, the portion of 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 its rate with FERS and without FERS for specific periods from 

June 1, 2018 through October 12, 2019. OWCP provided its calculations for each relevant period 

based on the SSA worksheet and determined that appellant received an overpayment of 

compensation in the amount of $11,022.12. The Board, thus, finds that appellant received 

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 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).

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

9 P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020); 

A.F., Docket No. 19-0054 (issued June 12, 2019).

10 20 C.F.R. § 10.421(d); see R.R., supra note 7; T.B., supranote 7; L.J., supra note 7.
5

prohibited dual benefits for the period June 1, 2018 thorough October 12, 2019, totaling 

$11,022.12.

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. 11 

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.12

Section 10.436 of OWCP’s implementing regulations provides that recovery of an 

overpayment would defeat the purpose of FECA if such recovery would cause hardship 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, 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.13 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. 14

Section 10.437 of OWCP’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 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. 15 

OWCP’s regulations at Section 10.438 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. 16 Failure to submit 

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

11 5 U.S.C. § 8129(a)-(b).

12 20 C.F.R. § 10.436.

13 Id.; OWCP’s procedures provide that the 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. Federal 

(FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 6.400.4(a)(3) 

(September 2020).

14 Id.

15 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

16 Id. at § 10.438(a); M.S.,Docket No. 18-0740 (issued February 4, 2019).
6

recovery, and no further request for waiver shall be considered until the requested information is 

furnished.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 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 Appellant, 

however, had the responsibility to provide the appropriate financial information to OWCP. 19

In its preliminary overpayment determination dated June 11, 2020, OWCP explained the 

importance of providing the completed overpayment questionnaire 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 if he failed 

to furnish the requested financial information within 30 days. Appellant submitted a Form OWCP20 and a list of income and expenses; however, he did not provide documentation to support his

financial information.

20

 As a result, OWCP did not have all of the necessary financial information 

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

would be against equity and good conscience.21

The Board, thus, finds that OWCP properly denied waiver of recovery of the 

overpayment.22

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.

23

Section 10.441(a) of OWCP’s regulations24 provides in pertinent part:

“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 

17 Id. at § 10.438(b).

18 Id. at § 10.436.

19 Id. at § 10.438; see B.G., Docket No. 20-0541 (issued April 28, 2021); N.J., Docket No. 19-1170 (issued 

January 10, 2020).

20 R.M., Docket No. 19-1570 (issued June 1, 2020).

21 G.G., Docket No. 19-0684 (issued December 23, 2019).

22 20 C.F.R. § 10.438; see L.D., Docket No. 19-0606 (issued November 21, 2019).

23 Id. at § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

24 Id. at § 10.441(a).
7

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.”

25

ANALYSIS -- ISSUE 3

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

$350.00 from appellant’s continuing compensation payments every 28 days.26

OWCP provided appellant a Form OWCP-20 along with its June 11, 2020 preliminary 

overpayment determination. Appellant did not fully complete the overpayment recovery 

questionnaire or provide the necessary documentation to support his income and expenses prior to 

the final November 5, 2020 overpayment decision. The overpaid individual is responsible for 

providing information about income, expenses, and assets as specified by OWCP. 27 When an 

individual fails to provide the requested financial information, OWCP should follow minimum 

collection guidelines designed to collect the debt promptly and in full. 28 The Federal (FECA)

Procedure Manual provides that in such instances, OWCP should set the rate of repayment at 25 

percent of the 28-day net compensation amount, until the balance of the overpayment is paid in 

full.29 While appellant did not submit the financial information requested, the record reflects that 

his continuing 28-day net compensation amounts to $2,077.16. Therefore, deducting $350.00 

every 28 days from his continuing compensation is in accordance with the 25 percent repayment 

rate.30

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 

$11,022.12 overpayment by deducting $350.00 every 28 days from appellant’s continuing 

compensation payments.31 Therefore, it properly required recovery of the overpayment by 

deducting $350.00 every 28 days from appellant’s continuing compensation benefits.

CONCLUSION

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

of compensation in the amount of $11,022.12, for which he was without fault, because he 

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

25 J.K., Docket No. 20-1190 (issued January 8, 2021);see C.M., Docket No. 19-1451 (issued March 4, 2020).

26 L.D., Docket No. 19-1423 (issued March 2, 2020).

27 20 C.F.R. § 10.438; see also A.F., supra note 9.

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

29 Federal (FECA) Procedure Manual, supranote 13 at 6.500.8(c)(1) (September 2020).

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

31 M.D., Docket No. 19-1500 (issued February24, 2020).
8

the period June 1, 2018 thorough October 12, 2019, without an appropriate offset; and that OWCP 

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

required recovery of the overpayment by deducting $350.00 from appellant’s continuing 

compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the November 5, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 6, 2021

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