United States Department of Labor

Employees’ Compensation Appeals Board

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K.W., Appellant

and

DEPARTMENT OF THE INTERIOR, BUREAU 

OF INDIAN EDUCATION, CIRCLE OF 

NATIONS WAHPETON INDIAN SCHOOL, 

Wahpeton, ND, Employer

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Docket No. 20-1169

Issued: April 7, 2021

Appearances: Case Submitted on the Record

Wesley R. Martins, 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 May 18, 2020 appellant, through counsel, filed a timely appeal from a January 28, 2020 

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

 

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

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 

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $12,527.93 for the period October 1, 2012 to December 7, 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; 

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

OWCP properly required recovery of the overpayment by deducting $100.00 from appellant’s 

continuing compensation payments every 28 days.

FACTUAL HISTORY

On May 11, 2001 appellant, then a 54-year-old art therapist, filed a traumatic injury claim 

(Form CA-1), alleging that on May 8, 2001 she injured her head, face, and cervical spine while in 

the performance of duty. She explained that, as she bent down by a door to pick up a dropped 

item, a student slid into the other side of the door, causing the door to slam into her face. Appellant 

stated that she sustained a head concussion, a hematoma, a cervical strain, and a possible cervical 

fracture. On the reverse side of the claim form the employing establishment indicated that 

appellant stopped work on May 8, 2001. OWCP accepted the claim for head concussion and 

cervical strain and paid appellant wage-loss compensation on the supplemental rolls beginning 

December 2, 2001 and on the periodic rolls beginning August 11, 2002. 

On December 5, 2019 OWCP sent a Federal Employees Retirement System (FERS)/SSA 

dual benefits calculation form to SSA.

On December 13, 2019 SSA completed the FERS/SSA dual benefits calculation form. The 

form indicated that, as of October 2012, appellant’s SSA rate with FERS was $781.50 and without 

FERS was $644.00, beginning in December 2012 her SSA rate with FERS was $794.70 and 

without FERS was $654.90, beginning in December 2013 her SSA rate with FERS was $806.60

and without FERS was $664.70, beginning in December 2014 her SSA rate with FERS was 

$820.30 and without FERS was $675.90, beginning in December 2015 her SSA rate with FERS 

was $820.30 and without FERS was $675.90, beginning in December 2016 her SSA rate with 

FERS was $822.70 and without FERS was $677.90, beginning in December 2017 her SSA rate 

with FERS was $839.10 and without FERS was $691.40, beginning in December 2018 her SSA 

rate with FERS was $862.50 and without FERS was $710.70, and beginning in December 2019

her SSA rate with FERS was $876.30 and without FERS was $722.00.

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the January 28, 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 

evidence for the first time on appeal. Id. 
3

In a December 19, 2019 letter, OWCP explained to appellant that she had been receiving 

SSA age-related retirement benefits earned as a part of the FERS retirement package. It related

that the portion of SSA age-related retirement benefits earned as part of the FERS retirement 

package and the receipt of FECA benefits concurrently was a prohibited benefit. Therefore,

appellant’s FECA benefits would be adjusted based on the FERS portion of SSA benefits attributed 

to federal service. OWCP advised appellant that her 28-day FECA compensation after the SSA 

offset would be $1,345.57.

A fiscal pay rate memorandum dated December 19, 2019 related that, during the period 

October 1 through November 30, 2012, appellant received an overpayment of $276.51 from 

December 1, 2012 through November 30, 2013, an overpayment of $1,682.21 from December 1, 

2013 through November 30, 2014, an overpayment of $1,707.48 from December 1, 2014 through

November 30, 2015, an overpayment of $1,737.56 from December 1, 2015 through November 30, 

2016, an overpayment of $1,742.32 from December 1, 2016 through November 30, 2017, an 

overpayment of $1,742.37 from December 1, 2017 through November 30, 2018, an overpayment 

of $1,777.27 from December 1, 2018 through November 30, 2019, an overpayment of $1,826.60,

and from December 1through 7, 2019 an overpayment of $35.61. The total overpayment was 

found to be $12,527.93.

On December 19, 2019 OWCP issued a preliminary overpayment determination that 

appellant received an overpayment of compensation in the amount of $12,527.93 because it paid 

her compensation benefits for the period October 1, 2012 through December 7, 2019 that had not 

been reduced by the portion of her SSA age-related retirement benefits attributable to her federal 

service. It further advised that she was without fault in creating the overpayment because she 

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

benefits administration. OWCP requested that appellant complete the enclosed overpayment 

recovery questionnaire (Form OWCP-20) and submit supporting financial documentation

including income tax returns, bank account statements, bills and cancelled checks, pay slips, and 

any other records to support her reported income and expenses. Additionally, it 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 response was received.

By decision dated January 28, 2020, OWCP finalized its preliminary overpayment 

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

$12,527.93 for the period October 1, 2012 through December 7, 2019 because a portion of her 

SSA age-related retirement benefits was based on credits earned in federal service, resulting in a 

prohibited dual benefit. It further found that she was without fault in the creation of the

overpayment, but denied waiver of recovery because there was no evidence to substantiate that 

recovery would defeat the purpose of FECA or be against equity and good conscience. OWCP 

required recovery of the overpayment by deducting $100.00 from appellant’s continuing 

compensation payments every 28 days.

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 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 
4

duty.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

Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount 

of compensation by the amount of SSA benefits that are attributable to federal service of the

employee.6 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.7

ANALYSIS -- ISSUE 1 

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

of compensation in the amount of $12,527.93 for the period October 1, 2012 through December 7, 

2019, for which she was without fault, because she concurrently received FECA wage-loss 

compensation benefits and SSA age-related retirement benefits without an appropriate offset.

The record indicates that while appellant was receiving FECA wage-loss compensation 

benefits she was also receiving SSA age-related retirement benefits attributable to her federal 

service. As noted, a claimant cannot receive both compensation for wage loss and SSA age-related 

retirement benefits attributable to federal service for the same period.8 Consequently, fact of

overpayment has been established.

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. OWCP received 

documentation from SSA with respect to the specific amount of SSA age-related retirement 

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

FERS and without FERS for the period October 1, 2012 through December 7, 2019. OWCP 

provided its overpayment calculations for each relevant period based on the SSA worksheet in its 

December 19, 2019 preliminary overpayment determination.

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

period October 1, 2012 through December 7, 2019 and finds that an overpayment of compensation 

in the amount of $12,527.93 was created.9

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6 20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802 

(issued August 20, 2018).

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

8

Id. 

9 S.O., Docket 20-0753 (issued October 28, 2020). 
5

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP 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.”

10

 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.11

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly denied waiver of recovery of the $12,527.93 

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.12 Appellant, 

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

documentation to OWCP.13 

In its preliminary overpayment determination dated December 19, 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 reported 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. Appellant 

did not submit a completed Form OWCP-20 or otherwise submit financial information regarding 

monthly income and expenses. As a result, OWCP did not have 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.14

Consequently, as appellant did not submit the financial information required under section 

10.438 of OWCP’s regulations to determine her eligibility for waiver, the Board finds that OWCP 

properly denied waiver of recovery of the overpayment.15

 

10 5 U.S.C. § 8129.

11 Id. at § 10.436

12 Id.

13 Id. at § 10.438. 

14 See S.M., Docket No. 17-1802 (issued August 20, 2018).

15 Supra note 11. 
6

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.16 Section 

10.441(a) of the regulations 33 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.”

17

ANALYSIS -- ISSUE 3 

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

$100.00 every 28 days from appellant’s continuing compensation payments.

As noted, appellant did not complete the Form OWCP-20, nor did she submit financial 

information as requested prior to the final January 28, 2020 decision. The overpaid individual is 

responsible for providing information about income, expenses, and assets as specified by OWCP.18 

When an individual fails to provide requested financial information, OWCP should follow 

minimum collection guidelines designed to collect the debt promptly and in full.19 As appellant 

failed to timely submit information to OWCP as requested, the Board finds that there is no 

evidence of record to demonstrate that it erred in requiring recovery of the $12,527.93 

overpayment of compensation at the rate of $100.00 every 28 days from her continuing 

compensation payments.20

CONCLUSION

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

$12,527.93 for the period October 1, 2012 through December 7, 2019, for which she was without 

fault, because she concurrently received SSA age-related retirement benefits while receiving 

FECA wage-loss compensation benefits without an appropriate offset. The Board further finds 

that OWCP properly denied waiver of recovery of the overpayment and properly required recovery 

 

16 20 C.F.R. § 10.441(a).

17 Id. 

18 Supra note 11. 

19 T.J., Docket No. 19-1242 (issued January 13, 2020). 

20 Id.
7

of the overpayment by deducting $100.00 every 28 days from appellant’s continuing compensation 

payments.

ORDER

IT IS HEREBY ORDERED THAT the January 28, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 7, 2021

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