United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.B., Appellant

and

U.S. POSTAL SERVICE, GENERAL MAIL 

FACILITY, Cleveland, OH, Employer

__________________________________________

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Docket No. 20-0573

Issued: August 23, 2021

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 January 17, 2020 appellant filed a timely appeal from a December 17, 20191 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 On appeal to the Board appellant requested an appeal from an October 3, 2019 Board decision issued under Docket 

No. 19-0425. Decisions and orders of the Board are final 30 days after issuance and not subject to further review. 20 

C.F.R. § 501.6(d). Therefore, the Board will not reconsider the findings and conclusions reached in the October 3, 

2019 decision on appeal.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the December 17, 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

ISSUES

The issues are: (1) whether OWCP properly denied waiver of recovery of the overpayment

of compensation for the period from November 16, 2006 through January 6, 2018; and (2) whether 

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

continuing compensation payments every 28 days. 

FACTUAL HISTORY

This case has previously been before the Board.4 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 June 19, 1991 appellant, then a 47-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he injured his right knee when his foot slipped between the 

edge of a mail cage and a loading platform while in the performance of duty. On August 2, 1991 

OWCP accepted his claim under File No. xxxxxx486 for sprain, right knee. On August 27, 1991 

appellant underwent arthroscopy of the right knee, partial medial meniscectomy, and 

chondroplasty. By decision dated June 1, 1993, OWCP granted him a schedule award for 38 

percent permanent impairment of his right lower extremity. On May 16, 2000 it expanded 

acceptance of appellant’s claim to include post-traumatic degenerative joint disease of the right 

knee.

On November 27, 2000 appellant filed a traumatic injury claim (Form CA-1) alleging that 

on that date, as he was pushing a truck onto a scale, it stopped abruptly causing his left knee to 

twist while in the performance of duty. On December 14, 2000 OWCP accepted this claim under 

File No. xxxxxx888 for left knee strain. It subsequently expanded the acceptance of this claim to 

include bilateral degenerative joint disease. OWCP administratively combined appellant’s claims

on May 15, 2002.5 Appellant later underwent bilateral total knee arthroscopies.

On May 2, 2002 appellant returned to light-duty work six hours a day. By decision dated 

March 11, 2003, OWCP determined that the position of modified mail handler, fairly and 

reasonably represented his wage-earning capacity. It reduced appellant’s compensation to reflect 

his loss of wage-earning capacity (LWEC). By decision dated July 2, 2003, OWCP granted him

a schedule award for 50 percent permanent impairment of his left lower extremity. By decision 

dated September 29, 2003, it granted appellant a schedule award for an additional 12 percent 

permanent impairment of his right lower extremity, for a total 50 percent permanent impairment. 

The period of the schedule award was June 15, 2003 through November 15, 2006.

On August 21, 2006 appellant informed OWCP that he was concurrently receiving Federal 

Employees Retirement System (FERS) benefits and Social Security Administration (SSA)

benefits. In a letter dated September 21, 2006, OWCP informed appellant that, when his schedule 

 

4 Docket No. 19-0425 (issued October 3, 2019).

5 OWCP administratively combined OWCP File Nos. xxxxxx304, xxxxxx547, xxxxxx608, and xxxxxx888 with 

the current file, OWCP File No. xxxxxx486, which serves as the master file.
3

award ended on November 15, 2006, he would need to elect either benefits under the Civil Service 

Retirement System or FECA benefits of $717.00 every 28 days. On October 6, 2006 appellant 

elected to receive FECA benefits, effective November 15, 2006. In a letter dated November 16, 

2006, OWCP informed appellant that, when his schedule award ended on November 15, 2006, he 

would return to his former compensation rate based on his March 11, 2003 LWEC. It listed his 

continuing compensation payments beginning December 23, 2006 as $510.76. OWCP informed 

appellant that FECA required his wage-loss compensation benefits to be reduced if he began 

receiving SSA retirement benefits based on his age and federal service. It notified him of his 

obligation to report receipt of such retirement benefits to avoid an overpayment of compensation.

On October 23, November 2, and December 18, 2017 OWCP provided SSA with a form 

for calculation of dual benefits. SSA responded on January 19, 2018 and indicated that, beginning 

October 2005, appellant’s SSA rate including his federal employment under FERS was $1,191.20 

per month. The SSA rate that appellant was entitled to without his federal employment was 

$797.40. By December 2017, these rates increased to $1,542.10 and $1,032.30 respectively.

In a letter dated February 8, 2018, OWCP informed appellant that he had been receiving a 

prohibited dual benefit resulting in an overpayment. It noted that the portion of SSA benefits 

earned as a federal employee was part of his retirement and that the receipt of wage-loss 

compensation under FECA and federal retirement was prohibited. OWCP adjusted appellant’s 

FECA benefits to account for his SSA offset of $470.58, which reduced his FECA wage-loss 

compensation payments from the gross amount of $881.00 to $410.42.

In a preliminary determination dated March 22, 2018, OWCP advised appellant that he had 

received a $68,670.27 overpayment of compensation for the period from October 1, 2005 through 

January 6, 2018 because it failed to offset his FECA benefits by the portion of SSA retirement 

benefits he had received. It found him at fault in the creation of the overpayment because he 

accepted payments, which he knew or should reasonably have known were incorrect. OWCP 

advised appellant that he could submit evidence challenging the fact, amount, or fault finding and 

request waiver of recovery of the overpayment. Additionally, it provided an overpayment action 

request form and informed him that, within 30 days, he could request a telephone conference, a 

final decision based on the written evidence, or a prerecoupment hearing. OWCP requested that 

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

supporting financial documentation.

On April 4, 2018 appellant requested a waiver and a prerecoupment hearing with a 

representative of OWCP’s Branch of Hearings and Review. He disagreed that the overpayment 

occurred and with the amount of the overpayment, and requested waiver. Appellant asserted that 

he had paid into SSA for 42 years and only worked for the Federal Government for 121⁄2 years. He

further alleged that he did not begin receiving FECA wage-loss compensation benefits 

concurrently with his SSA benefits until November 16, 2006 rather than October 1, 2005 as found 

by OWCP. 

Appellant completed a Form OWCP-20 on March 30, 2018. He listed his SSA benefits as 

$1,408.00 with combined household benefits of $2,703.00. Appellant noted that his disabled son 

also received supplemental income of $334.00. He listed his pension income from armed services 

retirement variously as $3,213.00 and $3,152.84, Department of Veterans Affairs (VA) disability 
4

as $3,494.91 and FECA benefits of $410.42 for his total monthly income of between $8,466.17 

and $8,525.42. Appellant noted his wife’s SSA benefits were $859.00 and included his son’s 

benefits of $436.00 to reach total monthly income of $10,156.11. He listed his wife and his 50-

year-old disabled son as his dependents. Appellant noted his monthly expenses to include housing 

of $705.95, food expenses of $900.00, clothing expenses of $400.00, utilities of $1,005.00, and 

other expenses of $4,304.71. He provided a list of other debts paid by monthly installments of 

$3,474.00 for a total monthly expense of $9,747.05. Appellant indicated that he had funds on hand 

in the amount of $1,482.00. He provided a detailed list of his monthly expenses.

On September 25, 2018 appellant provided additional financial information supporting his 

minimum monthly payments on credit cards and other monthly expenses. He included a statement 

from SSA regarding his adult disabled son’s disability benefits. Appellant included within his 

expenses payments for his disabled adult son’s television, internet, and telephone in the amount of 

$216.00, his water bill of $90.00, his electric bill of $230.00, as well as credit cards in his son’s 

name with minimum payments totaling $272.25. He also included $183.00 for his grandson’s car 

payment.

By decision dated November 29, 2018, OWCP’s hearing representative found that OWCP 

properly determined that appellant had received an overpayment of compensation for which he 

was at fault as he had received dual benefits from SSA and OWCP and, therefore, was not entitled 

to waiver of recovery. However, he modified OWCP’s preliminary determination of overpayment 

finding that appellant had received an overpayment in the amount $63,148.71 for the period of 

November 16, 2006 through January 6, 2018. OWCP’s hearing representative determined that 

appellant had sufficient income for recovery of the overpayment. He determined that appellant’s 

adult son was not a dependent and reduced appellant’s expenses for his support. The hearing 

representative further reduced appellant’s expenses by the amount of his grandson’s car payment 

as he did not accept appellant’s argument that this was payment for services rendered. He 

determined that appellant and his wife had monthly income of $9,320.00 and monthly expenses of 

$4,570.33. The hearing representative determined that monthly repayment of $1,000.00 was 

appropriate, but that, as the vast majority of appellant’s monthly income was not from FECA 

benefits, a two-part repayment scheme was necessary with recovery of $350.00 from appellant’s 

continuing FECA benefits and the remaining $620.83 submitted by appellant through a monthly 

check.

Appellant appealed the November 29, 2018 decision to the Board on December 18, 2018. 

In its October 3, 2019 decision, the Board affirmed in part and set aside in part the November 29, 

2018 decision. The Board found that OWCP properly determined fact and amount of overpayment 

of compensation, $63,148.71, because appellant concurrently received SSA age-related retirement 

benefits and FECA benefits for the period November 16, 2006 through January 6, 2018. The 

Board determined, however, that appellant was not at fault in the creation of the overpayment of 

compensation. The Board remanded the case for OWCP to consider waiver of recovery of the 

overpayment.

By decision December 17, 2019, OWCP found that, based on the evidence, appellant 

submitted regarding his income and expenses in 2018 his total monthly income was $9,320.00 and 

his ordinary and necessary living expenses did not exceed $4,570.33. It determined that recovery 

of the overpayment would not defeat the purpose of FECA as his monthly income exceeded his 
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monthly expenses by more than $50.00. OWCP further found that there was no evidence that 

appellant relinquished a valuable right in reliance on the additional compensation or changed his 

position for the worse in reliance on the erroneous compensation payment such that recovery 

would be inequitable or against good conscience. It also found that the overpayment would 

continue to be recovered in the manner described in the November 29, 2018 decision of the OWCP 

hearing representative.

LEGAL PRECEDENT -- ISSUE 1

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.6 

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.7

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.8 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 $50.00.9

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.10

OWCP’s regulations provide that, before seeking to recover an overpayment or adjust 

benefits, it will advise the individual in writing that the overpayment exists and the amount of the 

overpayment.11 The written notification must also include a preliminary finding regarding whether 

 

6 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).

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

8 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).

9 N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 (issued April 26, 2019); id. at 

Chapter 6.400.4.a(3).

10 20 C.F.R. § 10.437(a)(b).

11 Id. at § 10.431(a).
6

the individual was at fault in the creation of the overpayment.12 OWCP must inform the individual 

of his right to challenge the fact or amount of the overpayment, the right to contest the preliminary 

finding of fault in the creation of the overpayment, if applicable, and the right to request a waiver 

of recovery of the overpayment.13 OWCP’s procedures provide that a preliminary finding of 

overpayment must be provided within 30 days and must clearly identify the reason that the 

overpayment occurred and the basis for any fault finding.14

OWCP’s procedures provide that if the claimant is determined to be without fault, then the 

preliminary overpayment determination should be released using a Form CA-220215 along with 

an OWCP-20 within 30 days of the date the overpayment is identified.16

OWCP’s procedures further specify that the preliminary finding of overpayment also 

informs the claimant of the right to submit additional evidence and argument, if the claimant 

disagrees with the fact or amount of the overpayment and if the claimant feels the overpayment 

should be waived. Additional evidence and arguments must be submitted by the claimant within 

30 days of the date of the letter.17

The Board has held that OWCP must rely on current financial information when 

determining eligibility for waiver of recovery of an overpayment.18

 

12 Id. at § 10.431(d).

13 Id.

14 See R.O., Docket No. 16-1836 (issued May 23, 2017)(finding that if a case is remanded to OWCP for additional 

development regarding waiver of recovery of an overpayment, OWCP should issue a new preliminary finding 

regarding fault, providing appellant with new appeal rights, including the right to a prerecoupment hearing, and the 

opportunity to submit current financial information which OWCP will evaluate to properly determine whether the 

overpayment should be waived.); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Overpayment Actions, Chapter 6.300.5(a) (September 2018)(The Board notes that this provision of the procedure 

manual was updated in September 2020 following the issuance of OWCP’s December 17, 2019 decision.).

15 Id.; Id. at Chapter 6.100.3.d.(2).

16 Supra note 8.

17 Id.

18 C.S., Docket No. 17-2013 (issued April 11, 2018); I.P., Docket No. 12-1683 (issued January 25, 2013); C.S.,

Docket No. 12-0313 (issued October 23, 2012) (OWCP must rely on current financial information when determining 

eligibility for waiver of an overpayment), Thomas E. Ray, 51 ECAB 344 (2000) (the Board remanded the case for 

further development on the issue of waiver where OWCP relied on three-year-old financial information in its waiver 

determination); Carol R. Graham, Docket No. 02-2198 (issued February 4, 2003) (the Board remanded the case for 

further development on the issue of waiver as OWCP relied on financial information that was 16 months old in 

determining the claimant s eligibility for waiver of the overpayment); Ronald E. Smith, 36 ECAB 652 (1985) (the 

Board found that OWCP should have attempted to obtain current financial information prior to determining the 

claimant s eligibility for waiver).
7

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision. 

On prior appeal, by decision dated October 3, 2019, the Board affirmed OWCP’s finding 

that appellant received an overpayment of compensation in the amount of $63,148.71 because he 

concurrently received SSA age-related retirement benefits and FECA benefits for the period 

November 16, 2006 through January 6, 2018. The Board found, however, that he was not at fault 

in the creation of the overpayment of compensation. The Board remanded the case for OWCP to 

consider waiver of recovery of the overpayment.

On remand, OWCP reviewed the March 30, 2018 overpayment recovery questionnaire 

previously submitted after its initial preliminary overpayment determination of March 22, 2018. 

It did not provide appellant with a Form CA-2202, preliminary notice of overpayment, advising 

him of the overpayment for which he was without fault or a Form OWCP-20, overpayment 

recovery questionnaire, to obtain updated evidence of his financial status as required by its 

procedures.19 The Board has held that, if a case is remanded to OWCP for additional development 

regarding wavier of recovery of an overpayment, OWCP should issue a new preliminary finding 

noting the Board’s determination that appellant was without fault and provide appellant with new 

appeal rights, including the right to a prerecoupment hearing, and the opportunity to submit current 

financial information which OWCP will evaluate to properly determine whether the overpayment 

should be waived.20 As noted above, OWCP must rely on current financial evidence when 

determining eligibility for waiver of an overpayment.21 Consequently, as it did not comply with 

its procedures or Board case law, the case will be remanded for OWCP to provide appellant with 

a new preliminary determination of overpayment and Form OWCP-20. Following such further 

development as deemed necessary, OWCP shall issue a de novo decision.22

CONCLUSION

The Board finds that this case is not in posture for decision.

 

19 Supra note 8.

20 See C.G., Docket No. 15-0891 (issued August 9, 2016)(OWCP failed to issue a new preliminary decision after a 

remand from the Board on the issue of waiver, which infringes on appellant’s procedural rights); B.T., Docket No. 14-

1909 (issued May 19, 2015)(The Board found that OWCP’s failure to issue a preliminary determination following the 

Board’s remand of an overpayment case infringed appellant’s procedural rights under its regulations at 20 C.F.R. 

§§ 10.431-432); J.R., Docket No. 12-0986 (issued November 13, 2012).

21 Supra note 19.

22 In view of the Board’s disposition of Issue 1, it is premature to address Issue 2.
8

ORDER

IT IS HEREBY ORDERED THAT the December 17, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: August 23, 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