United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Sutter Creek, CA, Employer

__________________________________________

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Docket No. 20-0363

Issued: November 23, 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

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On December 4, 2019 appellant filed a timely appeal from a November 22, 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 $108,193.47, for which she was not at fault, as she 

concurrently received FECA wage-loss compensation and Social Security Administration (SSA) 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the November 22, 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

age-related retirement benefits for the period March 1, 2013 through March 30, 2019 without an 

appropriate offset; and (2) whether OWCP properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the prior decision are incorporated herein by reference. The relevant facts are set forth below.

On December 13, 1996 appellant, then a 49-year-old rural mail carrier, filed an 

occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel 

syndrome due to factors of her federal employment including repetitive motions required in the

sorting, bundling, and delivery of mail. A notification of personnel action (Form SF50) dated 

June 7, 1995 noted appellant’s retirement plan as FERS. OWCP accepted the claim for bilateral 

carpal tunnel syndrome, right elbow contusion, and right lesion of ulnar nerve.4 It placed appellant 

on the periodic compensation roll commencing December 16, 2012.5

On April 1, 2019 OWCP received from SSA a March 23, 2019 Federal Employees’

Retirement System (FERS)/(SSA) dual benefits calculation form which indicated that appellant 

had been in receipt of SSA age-related retirement benefits since March 2013. The form showed 

SSA benefit rates with and without a FERS offset. Beginning March 1, 2013, appellant’s SSA 

rate with FERS was $1,550.00 and without FERS was $119.20; beginning December 1, 2013, 

appellant’s SSA rate with FERS was $1,573.20 and without FERS was $120.90; beginning 

December 1, 2014 and December 1, 2015 appellant’s SSA rate with FERS was $1,599.90 and 

without FERS was $122.90; beginning December 1, 2016 appellant’s SSA rate with FERS was 

$1,604.60 and without FERS was $123.20; beginning December 1, 2017 appellant’s SSA rate with 

FERS was $1,636.60 and without FERS was $125.60; and beginning December 1, 2018 

appellant’s SSA rate with FERS was $1,682.40 and without FERS was $129.10. 

A FERS offset calculation worksheet indicated that OWCP utilized a 28-day FERS offset 

amount of $12,971.54 for the 275 days from March 1 to November 30, 2013; $17,475.48 for the 

365 days from December 1, 2013 to November 30, 2014; $17,772.69 for the 365 days from 

December 1, 2014 to November 30, 2015; $17,821.38 for the 366 days from December 1, 2015 to 

November 30, 2016; $17,825.64 for the 365 days from December 1, 2016 to November 30, 2017; 

$18,181.81 for the 365 days from December 1, 2017 to November 30, 2018; and $6,144.92 for the 

 

3 Docket No. 15-0598 (issued June 22, 2015). 

4 The Board notes that the current claim has been consolidated with OWCP File No. xxxxxx625, with an injury 

date of February 20, 1996, which was accepted for right elbow contusion; and OWCP File No. xxxxxx366, which was 

accepted for temporary aggravation of bilateral basal joint arthrosis, with an injury date of January 2, 1998. OWCP 

File No. xxxxxx680 serves as the master file. 

5 By decision dated January 13, 2015, OWCP reduced appellant’s compensation effective January 13, 2015 based 

on her capacity to earn wages in the constructed position of surveillance system monitor. By decision dated June 22, 

2015, the Board found that OWCP properly reduced appellant’s compensation effective January 13, 2015 based on 

her capacity to earn wages in the constructed position of surveillance system monitor. However, the Board remanded 

the case to OWCP for a recalculation of her wage-earning capacity based on recent weekly wages for the surveillance 

system monitor position. See supra note 3.
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120 days from December 1, 2018 to March 30, 2019. OWCP calculated a total overpayment of 

$108,193.47.

In a letter dated April 9, 2019, OWCP advised appellant that she had been receiving a 

prohibited dual benefit. It noted that the SSA had confirmed that a portion of her SSA age-related

retirement benefits were attributed to her years of federal service as an employee under the FERS 

program and that portion required an offset from her FECA compensation benefits. OWCP 

indicated that appellant was receiving gross FECA compensation of $1,887.00 every 28 days, the 

SSA offset was $1,433.82, other deductions of $170.93, which resulted in a new four-week FECA 

benefit in the amount of $282.55. The adjustment was effective March 31, 2019.

On April 10, 2019 OWCP issued a preliminary determination that appellant received an 

overpayment of compensation in the amount of $108,193.47, because she concurrently received 

FECA wage-loss compensation benefits and SSA age-related retirement benefits for the period 

March 1, 2013 through March 30, 2019, without an appropriate offset. It cited the FERS/SSA dual 

benefits calculation form and OWCP’s FERS offset calculation worksheet and explained that it 

had calculated the overpayment of compensation by determining the difference between her SSA 

benefit rate with and without FERS for each period, and then multiplying that amount by the 

number of days in each period. OWCP further found that appellant was without fault in the 

creation of the overpayment, as she was not aware, nor could she have reasonably been aware, that 

it had paid compensation incorrectly. It requested that she complete an enclosed overpayment 

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

Additionally, OWCP notified appellant that within 30 days of the date of the letter, she could 

request a final decision based on the written record or a prerecoupment hearing. 

On April 22, 2019 appellant elected benefits from OPM effective April 17, 2019. 

In an overpayment action request form dated May 1, 2019, appellant requested a 

prerecoupment hearing regarding possible waiver and recovery of the overpayment since the 

overpayment occurred through no fault of her own. She noted that she would have suspended her 

FECA benefits and elected OPM retirement benefits and enrolled in Medicare Part B if she had 

been timely informed of the overpayment. Appellant also requested waiver based on equity and 

good conscience, as she had honestly reported all information requested by OWCP. On an attached 

overpayment recovery questionnaire, she noted monthly income of $1,682.00 from “SSA, TBD 

amount in FERS as applied fees were not received, and $8.00 in dividends.” Appellant also 

indicated that she had a dependent adult daughter. She noted that her monthly expenses were 

$3,224.00 with assets totaling $90,337.00.6 Appellant attached documentation confirming SSA 

amount of $1,682.00 from SSA; bank account balance of $1,156.73; available balance of 

$15,015.54; and medical expenses in the amounts of $2,719.82 and $232.00.

A telephonic hearing was held on September 9, 2019. Appellant expressed frustration with 

the need for offset and the resulting large overpayment. With respect to income, she reported a 

dependent adult daughter who was unemployed and did not financially contribute to the 

 

6 This included cash on hand, checking account balance, savings account balance which included balance of life 

insurance from husband’s death, stocks and bonds, and a ROTH IRA inherited from her husband. 
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household.7 With respect to monthly income, appellant indicated that she had a very small 

dividend and her SSA benefit. She noted receipt of a single provisional payment of over $2,000.00 

for the April SSA benefit, after an OPM payment deduction of $741.32. Appellant testified that 

her savings account, which held life insurance proceeds, was reduced to $13,000.00. She revised 

the estimate of the balance of her husband’s 401K account to approximately $150,000.00. 

Appellant noted significant recent expenditures to her home, including a well repair and additional 

expenses in feed and veterinary care for several elderly large farm animals on the property. The 

hearing representative explained that she needed more substantial documentation to consider her 

request for waiver. The record was held open for 30 days for the submission of any additional 

evidence.

Appellant submitted numerous invoices and statements, including invoices for well repair, 

gate repair, veterinary bills, books for college, and medical bills. The monthly amount due or 

whether an outstanding balance remained was not indicated. Evidence of a September 3, 2019 net 

monthly annuity of $905.37 from SSA was also provided. In handwritten notes, appellant provided 

expenses totaling $2,295.00. This included $210.00 gas; $100.00 clothing; $595.00 housing; 

$400.00 food; $85.00 internet; $40.00 cell phone; $46.00 heating fuel; $20.00 trash; $102.00 cable; 

$115.00 electric; $328.00 horse feed; $491.00 hay; $45.00 dog food; $30.00 cat food; $28.00 

chicken food; and $60.00 property tax. 

By decision dated November 22, 2019, an OWCP hearing representative finalized 

OWCP’s preliminary overpayment determination finding that appellant received an overpayment 

of compensation in the amount of $108,193.47,

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for which she was not at fault, as she concurrently 

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

March 1, 2013 through March 30, 2019. The hearing representative denied waiver of recovery of 

the overpayment finding that appellant reported significant assets, which varied between 

$90,000.00 and $175,000.00, and that her liquid assets were being used to fund her budget 

shortfalls. 

LEGAL PRECENT -- 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.9 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.10 When an overpayment has been made to an 

 

7 The hearing representative noted that OWCP previously attempted to establish the dependent status of the adult 

daughter following the death of appellant’s husband, but no responsive evidence was received. 

8 The hearing representative subtracted an OPM annuity offset payment of $741.32 from the $108,193.47 

overpayment amount to find an adjusted current balance of $107,452.15.

9 5 U.S.C. § 8102(a).

10 Id. at § 8116.
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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.11

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

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

service of the employee.12 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.13

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $108,193.47 as she concurrently received FECA wage-loss 

compensation and SSA age-related retirement benefits for the period March 1, 2013 through 

March 30, 2019 without an appropriate offset.

In its November 22, 2019 decision, OWCP found that an overpayment of compensation 

was created for the period March 1, 2013 through March 30, 2019. The overpayment was based 

on the evidence received from SSA with respect to retirement benefits paid to appellant. Appellant 

has not challenged the fact or amount of the overpayment. The record indicates that, while 

appellant was receiving compensation for total disability under FECA, she was also receiving SSA 

age-related retirement benefits. A claimant cannot receive both compensation for wage-loss and 

SSA age-related benefits attributable to federal service for the same period.14 The information 

provided by SSA established that appellant received SSA age-related retirement benefits that were 

attributable to federal service during the period March 1, 2013 through March 30, 2019. 

Consequently, the fact of overpayment has been established.15

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

benefits. SSA provided the SSA rate with FERS, and without FERS for specific periods 

commencing March 1, 2013 through December 1, 2018. OWCP provided its calculations for each 

relevant period based on the SSA worksheet. No contrary evidence was provided.

 

11 Id. at § 8129(a).

12 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).

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

14 H.H., Docket No. 18-0674 (issued September 3, 2020); see E.K., Docket No. 18-0587 (issued October 1, 2018).

15 J.R., Docket No. 19-1418 (issued March 4, 2020); L.M., Docket No. 19-1197 (issued January 8, 2020).
6

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

period March 1, 2013 through March 30, 2019 and finds that an overpayment of compensation in 

the amount of $108,193.47 was created.16

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA states: “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 

without fault and when adjustment or recovery would defeat the purpose of this subchapter or 

would be against equity and good conscience.”

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Recovery of an overpayment will defeat the purpose of FECA when 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.18 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 $50.00.19 Also, 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.20 An individual’s liquid assets 

include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and 

certificate of deposits.21 Non liquid assets include, but are not limited to, the fair market value of 

an owner’s equity in property such as a camper, boat, second home, furnishings/supplies, 

vehicle(s) above the two allowed per immediate family, retirement account balances (such as 

Thrift Savings Plan or 401(k)), jewelry, and artwork.22

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 

 

16 R.F., Docket No. 20-0159 (issued October 15, 2020); see D.C., Docket No. 17-0559 (issued June 21, 2018).

17 5 U.S.C. § 8129(b).

18 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).

19 Id. at Chapter 6.400.4.a(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 

(issued April 26, 2019).

20 See supra note 18 at Chapter 6.400.4.a(2) (September 2018).

21 Id. at Chapter 6.400.4.b(3).

22 Id. at Chapter 6.400.4b(3)(a), (b).
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worse.23 To establish that a valuable right has been relinquished, it must be shown that the right

was in fact valuable, that it cannot be regained, and that the action was based chiefly or solely in 

reliance on the payments or on the notice of payment.24

OWCP 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 of an overpayment would defeat the 

purpose of FECA or be against equity and good conscience.25

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $108,193.47

overpayment of compensation.26

The fact that a claimant is without fault in creating an overpayment does not preclude 

OWCP from recovering the overpayment.27 Even though 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.28

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because she has not shown both that she needs substantially all of her current income to 

meet ordinary and necessary living expenses and that her assets do not exceed the allowable 

resource base. The Board finds that appellant, who reported over $90,000.00 and up to a possible 

$150,000.00 in total assets, has not met the standard for waiver of recovery of the overpayment 

because her assets exceed the allowable resource base. While appellant suggested before OWCP 

and the Board that she had insufficient monthly cash flow to satisfy her obligations, the hearing 

representative found that appellant was using her liquid assets to fund her budget shortfalls and 

that those same funds could be used for repayment of the debt. The hearing representative further 

found that appellant had $640.00 in surplus income.29 Because appellant has not met the second 

prong of the two-prong test of whether recovery of the overpayment would defeat the purpose of 

 

23 20 C.F.R. § 10.437(a)(b).

24 Id. at § 10.437(b)(1).

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

26 A.C., Docket No. 18-1550 (issued February 21, 2019).

27 See D.H., Docket No. 19-0384 (issued August 12, 2019): V.H., Docket No. 18-1124 (issued January 16, 2019).

28 20 C.F.R. § 10.436.

29 The hearing representative found $3,913.00 total monthly income minus $3,224.00 total monthly expenses, minus 

$50.00 statutory amount equaled $640.00 surplus income. 
8

FECA, it is however not necessary for OWCP to consider the first prong of the test, i.e., whether 

she needs substantially all of her current income to meet ordinary and necessary living expenses.30

Appellant also has not established that recovery of the overpayment would be against 

equity and good conscience because she has not shown, for the reasons noted above, that she would 

experience severe financial hardship in attempting to repay the debt or that she relinquished a 

valuable right or changed her position for the worse in reliance on the payment which created the 

overpayment.31 Although she has asserted that she would have altered her retirement plans had 

she been informed of the offset, she has not submitted any evidence to establish that such decision 

would have been financially advantageous had such notice been provided. 

Because appellant has not established that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, she has failed to show that OWCP 

improperly refused to waive recovery of the overpayment.32

On appeal appellant argues that OWCP improperly denied her request for waiver of 

recovery of the overpayment as it incorrectly reported her income and understated her monthly 

expenses. However, the Board notes that the fact that her assets exceed the allowable resource 

base served as the basis for denial of appellant’s waiver request. 

CONCLUSION

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

of compensation in the amount of $108,193.47, for which she was not at fault, as she concurrently 

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

March 1, 2013 through March 30, 2019. The Board further finds that OWCP properly denied 

waiver of recovery of the overpayment. 

 

30 M.H., Docket No. 19-1497 (issued September 9, 2020). 

31 See B.C., Docket No. 19-0629 (issued June 2, 2020); L.D., Docket No. 18-1317 (issued April 17, 2019); 

William J. Murphy, 41 ECAB 569, 571-72 (1989).

32 B.C., id.; see V.T., Docket No. 18-0628 (issued October 25, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 23, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board