United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.C., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

COMMISSARY AGENCY, NELLIS AIR 

FORCE BASE, NV, Employer

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Docket No. 20-1241

Issued: February 9, 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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On June 30, 2020 appellant filed a timely appeal from a May 12, 2020 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.

ISSUES

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

amount of $54,495.41 for which she was without fault because she concurrently received FECA 

wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits 

without an appropriate offset for the period October 1, 2015 to January 4, 2020; (2) whether 

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

 

1 5 U.S.C. § 8101 et seq.
2

required recovery of the overpayment by deducting $479.25 from appellant’s continuing 

compensation payments every 28 days.

FACTUAL HISTORY

On June 5, 2001 appellant, then a 51-year-old grocery manager, filed an occupational 

disease claim (Form CA-2) alleging that she developed extreme stress due to the employing 

establishment’s failure to provide a safe work environment. She noted that she first became aware 

of her condition, and first realized its relationship to her federal employment on April 24, 2001. 

On the reverse side of the claim form the employing establishment indicated that appellant stopped 

work on May 2, 2001. Appellant’s retirement coverage was noted as Federal Employees 

Retirement System (FERS). OWCP subsequently accepted her claim for anxiety disorder. It paid 

appellant wage-loss compensation on the daily rolls as of April 2, 2002 and on the periodic rolls 

as of August 2, 2002.

On November 20, 2019 SSA forwarded a completed FERS/SSA dual benefits calculation 

form to OWCP. The form indicated that, beginning in October 2015, appellant’s SSA rate with 

FERS was $1,112.90 and without FERS was $71.40, beginning in December 2015 her SSA rate 

with FERS was $1,112.90 and without FERS was $71.40, beginning in December 2016 her SSA 

rate with FERS was $1,116.20 and without FERS was $71.60, beginning in December 2017 her 

SSA rate with FERS was $1,138.50 and without FERS was $73.00, and beginning in 

December 2018 her SSA with FERS was $1,170.30 and without FERS was $75.00.

In a February 4, 2020 notice of telephone call (Form CA-110), OWCP notified appellant 

that her compensation would be offset by the portion of her SSA age-related retirement benefits

attributable to her federal service.

In a preliminary determination dated April 8, 2020, OWCP notified appellant that she had 

received an overpayment of compensation in the amount of $54,495.41

2 because her wage-loss 

compensation benefits had not been reduced for the period October 1, 2015 through January 4, 

2020 by the portion of her SSA benefits that were attributable to her federal service. It calculated 

the overpayment amount by determining the difference between her SSA amount with and without 

FERS for the stated period and adding this amount to find a total overpayment of $54,495.41. 

OWCP further advised appellant of its preliminary determination that she was without fault in the 

creation of the overpayment and requested that she complete an overpayment action request form 

and an overpayment recovery questionnaire (Form OWCP-20), and submit supporting financial 

documentation. Additionally, it notified her that she could request a telephone conference, a final 

decision based on the written evidence, or a prerecoupment hearing. OWCP allotted 30 days for 

appellant to respond.

On April 20, 2020 appellant completed an overpayment action request form and requested 

that OWCP make a decision based on the written evidence. She indicated that she was requesting 

waiver of recovery of the overpayment because she had provided correct and complete information 

 

2 The Board notes that the preliminary overpayment determination had calculated an overpayment in the amount of 

$54,495.40, not $54,495.41.
3

as required by SSA and OWCP. Appellant contended that she should not be held responsible for 

an overpayment that occurred without her knowledge.

On May 5, 2020 appellant submitted a Form OWCP-20 dated May 4, 2020, which 

indicated that she had a monthly income of $8,144.58, including FECA compensation benefits of 

$1,917.67 for herself and $2,028.31 for her spouse, SSA benefits of $1,044.00 for herself and 

$1,113.00 for her spouse, and other retirement income of $2,041.60 for her spouse. She reported 

that her monthly expenses included: $3,065.43 for rent or mortgage, $600.16 for food; $250.00 

for clothing; $1,180.09 for utilities; $800.00, $150.00, and $100.00 for Navy Federal Credit Union; 

$143.00 for Home Depot; $46.50 for Military Star; $12.96 for Hulu; $29.50 for Prime Video; 

$14.06 for Netflix; $2.99 for Apple iCloud storage; $137.72 for Allstate automobile insurance (last 

payment); $163.02 for Allstate automobile insurance starting May 7, 2020; $98.54 for Allstate life 

insurance; $229.79 for USAA automobile insurance; $15.10 for AGI travel insurance; $8.00 for 

AGI life insurance; and $694.94 for Lincoln Automotive Financial Services, totaling $7,737.86. 

Appellant indicated that she had available assets of $125.00 cash on hand, $7,745.85 in a checking 

account, and $7,013.43 in a savings account, totaling $14,884.28.

By decision dated May 12, 2020, OWCP finalized the preliminary determination that 

appellant had received an overpayment of compensation in the amount of $54,495.41 for the period 

October 1, 2015 through January 4, 2020 for which she was not at fault, because her FECA 

compensation payments were not offset by the portion of her SSA age-related retirement benefits 

attributable to her federal service. It found that she was without fault in the creation of the 

overpayment, but denied waiver of recovery because the evidence of record did not establish that

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

conscience. OWCP required recovery of the overpayment by deducting $479.25 from appellant’s 

continuing wage-loss compensation every 28 days.

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

performance of duty.3 However, section 8116 also 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 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.5

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

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

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

Id. at § 8129(a).
4

the employee.6 FECA Bulletin No. 97-09 states 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 appellant received an overpayment of compensation in the amount of 

$54,495.41 for which she was without fault, because she concurrently received FECA wage-loss 

compensation and SSA age-related retirement benefits without an appropriate offset for the period 

October 1, 2015 to January 4, 2020.

In its May 12, 2020 decision, OWCP found that an overpayment of compensation was 

created for the period October 1, 2015 to January 4, 2020. The overpayment was based on the 

evidence received from SSA with respect to retirement benefits paid to appellant. 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 The information provided by SSA established 

that appellant received SSA age-related retirement benefits that were attributable to federal service 

beginning October 1, 2015. OWCP, however, neglected to offset her FECA benefits until 

January 4, 2020. Accordingly, the Board finds that it properly determined that appellant received 

an overpayment of wage-loss compensation for the period October 1, 2015 through 

January 4, 2020.

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. The SSA provided appellant’s SSA rates with FERS and without FERS for the 

period October 1, 2015 through January 4, 2020. OWCP provided its calculations of the amount 

that it should have offset during the relevant period based on the SSA worksheet. 

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

period October 1, 2015 through January 4, 2020 and finds that an overpayment of compensation 

in the amount of $54,495.41 was created.9

 

6 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).

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

8 5 U.S.C. § 8116(d)(2); see R.D., Docket No. 19-1598 (issued April 17, 2020); C.M., Docket No. 19-1451 (issued 

March 4, 2020); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued 

May 17, 2019).

9 See M.S., Docket No. 18-0740 (issued February 4, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).
5

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.10

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.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

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.13 OWCP’s procedures 

provide that, to establish that a valuable right has been relinquished, an individual must 

demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and 

that his or her action was based primarily or solely on reliance on the payment(s) or on the notice 

of payment.14

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.15

 

10 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued 

December 21, 2017).

11 20 C.F.R. § 10.436. 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 6.400.4a (3) (September 2018).

12 Federal (FECA) Procedure Manual id. at Chapter 6.400.4(a)(3) (September 2018).

13 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

14 FECA Procedure Manual, supra note 11 at Chapter 6.400.4c(3) (September 2018).

15 20 C.F.R. § 10.436.
6

Appellant provided her current monthly income and expenses in Form OWCP-20 on 

May 5, 2020 as well as a summary of her liquid assets. OWCP properly determined that she listed

available assets totaling $14,884.28. This amount exceeds the base asset amount of $10,300.00 

for individuals with a spouse or dependent.16 It was therefore unnecessary for OWCP to consider 

whether appellant’s monthly income exceeds her monthly ordinary and necessary expenses by 

more than $50.00.17 OWCP therefore properly denied waiver of recovery.

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 or her attention is called to the 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.18

ANALYSIS -- ISSUE 3

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

$479.25 from appellant’s continuing compensation payments every 28 days.

In setting the recovery rate, OWCP explained that the factors set forth at 20 C.F.R. 

§ 10.441(a) had been considered to minimize hardship, while liquidating the debt, as appellant had 

financial resources sufficient for more than ordinary needs.19 As noted, appellant submitted a 

Form OWCP-20 on May 5, 2020 showing that she had available assets totaling $14,884.28, which 

included $125.00 cash on hand, $7,745.85 in a checking account, and $7,013.43 in a savings 

account. Thus, OWCP did not abuse its discretion in setting the rate of recovery.20 The Board 

therefore finds that OWCP properly required recovery of the overpayment from appellant’s 

continuing compensation payments at the rate of $479.25 every 28 days.

CONCLUSION

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

$54,495.41 for which she was without fault, because she concurrently received FECA wage-loss 

compensation and SSA age-related retirement benefits without an appropriate offset for the period 

October 1, 2015 to January 4, 2020. The Board further finds that OWCP properly denied waiver 

 

16 Supra note 11; see R.D., supra note 8.

17 Id.

18 20 C.F.R. § 10.441(a); see C.M., supra note 8.

19 See J.C., Docket No. 20-0204 (issued October 16, 2020); D.S., Docket No. 18-1447 (issued July 22, 2019).

20 See J.C., id.; T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).
7

of recovery of the overpayment and properly required recovery of the overpayment by deducting 

$479.25 from her continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the May 12, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 9, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board