United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 19-1451

Issued: March 4, 2020

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

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 25, 2019 appellant, through counsel, filed a timely appeal from an April 26, 2019 

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 April 26, 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 appellant received a $10,059.35 overpayment of compensation 

for the period October 1, 2017 through August 18, 2018 because he concurrently received FECA 

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

benefits, for which he was without fault; (2) whether OWCP properly denied waiver of recovery 

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

deducting $200.00 every 28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On July 2, 2008 appellant, then a 56-year-old maintenance mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that, on that day, he sustained injuries to his neck, back, and 

left shoulder when he tripped and fell while in the performance of duty. He stopped work on 

July 3, 2008 and has not returned. OWCP accepted the claim for contusion of the left shoulder 

and upper arm. It paid wage-loss compensation on the supplemental rolls effective August 17, 

2008 and on the periodic rolls effective March 15, 2009.

On August 22, 2018 OWCP received from SSA a July 24, 2018 Federal Employees 

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

had been in receipt of age-related SSA benefits since October 2017. The form indicated SSA 

benefit rates with a FERS offset and without a FERS offset. Beginning October 2017, appellant’s 

SSA rate, with FERS was $1,690.00 and without FERS was $757.70. Beginning December 2017, 

appellant’s SSA rate, with FERS was $1,724.00 and without FERS was $772.80. 

In a letter dated August 24, 2018, OWCP advised appellant that he had been receiving a 

prohibited dual benefit. It noted that the SSA had confirmed that a portion of his SSA benefits 

were attributed to his years of federal service as an employee under the FERS retirement program 

and that portion required an offset of his FECA compensation benefits. OWCP indicated that the 

adjustment of appellant’s FECA benefits to account for his SSA offset would begin on August 19, 

2018 and would reflect a new net compensation amount of $1,416.27. 

On August 27, 2018 OWCP issued a preliminary determination that appellant received an 

overpayment of compensation in the amount of $10,059.35 because he received FECA wage-loss 

compensation benefits concurrently with SSA age-related retirement benefits for the period 

October 1, 2017 through August 18, 2018. It explained that it had calculated the overpayment of 

compensation by determining the difference between appellant’s SSA amount with and without 

FERS for each period, and then multiplying that amount by the number of days in each period.

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

amount of $1,874.85 for the 61 days from October 1 through November 30, 2017 and $8,184.50 

for the 261 days from December 1, 2017 through August 18, 2018. Using these figures, OWCP 

calculated that the total overpayment amount was $10,059.35. It further found that appellant was 

without fault in the creation of the overpayment as he was not aware, nor could he reasonably have 

been aware, that OWCP had paid compensation incorrectly. OWCP requested that he complete 

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

financial documentation. Additionally, it notified appellant that, within 30 days of the date of the 

letter, he could request a final decision based on the written record or request a prerecoupment 

hearing. 
3

In an overpayment action request form dated September 13, 2018, appellant requested a 

telephonic prerecoupment hearing on the issues of fault and possible waiver of recovery of the 

overpayment with OWCP’s Branch of Hearings and Review. He indicated that he disagreed with 

the fact and amount of the overpayment and requested waiver. 

Appellant submitted a completed Form OWCP-20 dated September 17, 2018. He noted a 

total monthly income of $2,783.97 (which included FECA and SSA benefits) and total monthly 

expenses of $4,482.41. This included two mortgages $2,200.00 and $1,062.41, food $300.00, 

utilities $495.00, and monthly payments to creditors $425.00. Appellant indicated that he had 

available funds of $1,442.00. He noted that his spouse had passed away on September 1, 2017

and that he supported his adult daughter. Appellant indicated that he was unaware of the 

overpayments.

A telephonic hearing was held on February 4, 2019. Appellant testified that he lived with 

his daughter and son-in-law and, while the house was his, they split the cost of the house.4 The 

hearing representative held the record open for 30 days for appellant to submit financial 

information. He advised appellant to complete the documents as thoroughly as possible and to 

indicate whether or not he pays only half of his mortgage.

Subsequently, OWCP received financial information from appellant. An unsigned

statement bearing the initials “AGS,” indicated that all of appellant’s monthly bills were enclosed.5 

It advised that appellant paid 50 percent of all housing bills with the exception of the water bill. 

The statement noted that his income exceeded expenses by $230.60 a month, but he also purchased 

dog food and fuel for his car. It was noted that appellant had no stocks, bonds, or a 401K. A typed

statement indicated that he had monthly expenses of $2,602.69. This included: mortgage 

$1,180.66;

6 Citizens card number 1 $75.00,7 Citizens card number 2 $230.00,8 Walmart card 

$200.00,

9 Progressive Insurance (car) $86.00; Home Depot card $100.00;10 Atlantic City Electric 

$129.86;

11 cell phone (T-Mobile) $92.00;12 Xfinity $197.30;13 American Eagle credit card 

 

4 Appellant clarified that his daughter was not dependent upon him and that she did not have a developmental 

disability.

5 The statement appeared to be prepared by appellant’s daughter. 

6 A monthly mortgage statement on the Ellis Mill property from PennyMac indicated a monthly mortgage of 

$2,361.31. No evidence was submitted of appellant’s alleged other property at Pinnacle.

7 The minimum payment due was $ 49.32. 

8 The minimum payment due was $200.91. 

9 The Board notes that although appellant noted a monthly Walmart card debt of $200.00, the attached statement 

indicated a $2.00 credit. 

10 The minimum payment due was $60.00. 

11 The bill indicated a total amount of $259.72. 

12 The supportive bill indicates that charges are in the name of “C.M.P.” 

13 The bill indicated a total amount of $394.60.
4

$100.00;

14 EZ pass $75.00; South Jersey Gas $80.3515 and Mutual of Omaha Insurance $56.52. 

Appellant’s income totaled $2,833.29. This included workers’ compensation benefits $1,441.84 

and SSA $1,391.45. The balance after bills paid was noted as $230.60. 

In a Form CA-110 note of a telephone call dated April 11, 2019, appellant verified with a 

claims examiner that the detailed statement submitted subsequent to the hearing represented his 

current monthly expenses and income. He also verified that he only had one property, as the other 

property was sold, and that his daughter paid half of the mortgage on the remaining property. In 

another Form CA-100 note dated April 11, 2019, appellant indicated that the proceeds from the 

sale of his property, which took place in January 2019, went toward his current residence. He 

advised that he had approximately $60.00 in cash and that all other expenses remained the same. 

By decision dated April 26, 2019, an OWCP hearing representative finalized the 

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

of $10,059.35 for the period October 1, 2017 through August 18, 2018 as he had received wageloss compensation from OWCP without an appropriate offset for age-related SSA retirement 

benefits attributable to FERS. The hearing representative denied waiver of recovery of the 

overpayment finding that appellant currently had approximately $848.67 income over debt each 

month, which exceeded the statutory amount of $50.00. The hearing representative denied 

consideration of appellant’s $705.00 monthly credit card debt to avoid counting appellant’s 

expenses twice when totaling ordinary and necessary living expenses; did not accept the cell phone 

charge of $92.00 a month as the bill was not in appellant’s name; and denied the Xfinity bill of 

$192.30 and EZ Pass charge of $75.00 as they were not deemed to be ordinary and necessary living 

expenses. The hearing representative directed recovery of the overpayment by deducting $200.00 

every 28 days from appellant’s continuing compensation payments until the debt was paid in full. 

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 his or her duty.16 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.17

Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the 

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

employee’s federal service.18 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 

 

14 The minimum payment due was $38.00.

15 The bill indicated a total amount of $160.69.

16 5 U.S.C. § 8102(a).

17 Id. at § 8116.

18 20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued 

August 20, 2018).
5

federal employee is part of the FERS retirement package, and the receipt of FECA benefits and 

federal retirement concurrently is a prohibited dual benefit.19

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $10,059.35 for the period October 1, 2017 through August 18, 

2018 because he concurrently received FECA wage-loss compensation and SSA age-related 

retirement benefits. 

In its April 26, 2019 decision, OWCP found that an overpayment of compensation was 

created for the period October 1, 2017 through August 18, 2018. The overpayment was based on 

the evidence received from SSA with respect to age-related retirement benefits paid to appellant. 

A claimant cannot receive both FECA compensation for wage loss and SSA age-related retirement 

benefits attributable to federal service for the same period.20 The information provided by SSA 

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

federal service during the period October 1, 2017 through August 18, 2018.

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 age-related SSA retirement benefits that were attributable to 

federal service. The SSA provided their rate with FERS, and without FERS for specific periods 

commencing October 1, 2017 through August 18, 2018. OWCP provided its calculations for each 

relevant period based on a FERS offset calculation worksheet and in its August 27, 2018 

preliminary overpayment determination. No contrary evidence was provided.

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

period October 1, 2017 through August 18, 2018 and finds that an overpayment of compensation 

in the amount of $10,059.35 was created.21

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.22 

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.23

 

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

20 5 U.S.C. § 8116(d)(2); see L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 

(issued May 17, 2019).

21 See L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

22 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued 

June 12, 2019). 

23 A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).
6

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.24 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 $50.00.25

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.26

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. The information is also used to 

determine the repayment schedule, if necessary.27 Failure to submit the requested information 

within 30 days of the request shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished.28

OWCP procedures provide that a finding that a type of expense is ordinary and necessary 

does not mean that the amount is ordinary and necessary. The burden is on the overpaid individual 

to show that the expenses are reasonable and needed for a legitimate purpose. If the claims 

examiner or hearing representative determines that the amount of certain expenses is not ordinary 

and necessary, he or she must state, in writing, the reasons for the determination. The 

determination should be supported by rationale, which may include utilizing statistics from the 

Bureau of Labor Statistics that show that the overpaid individual’s expenses exceed that of the 

range for the general population. OWCP should be careful to avoid counting an expense twice

when totaling the overpaid individual’s ordinary and necessary living expenses. For example, if 

the overpaid individual’s credit card debt is already calculated as a fixed and miscellaneous living 

expense, the credit card expense(s) should not be added again as consumer debt expense. If the 

amount is added again, it would result in an excessive total for the overpaid individual’s ordinary 

and necessary living expenses, and would make the individual appear less able to repay his or her 

overpayment than would actually be the case. Furthermore, OWCP should ensure that the monthly 

expense used for each credit card reflects only the minimum payment required by the creditor. 

 

24 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).

25 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).

26 Id. at § 10.437(a)(b).

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

28 Id. at § 10.438(b).
7

The minimum amount should be verified, if necessary, by requiring the overpaid individual to 

submit copies of his or her monthly billing statement(s).29

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 of 

recovery of the overpayment 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.30 In Form CA-110 dated April 11, 2019, the claims examiner noted that the detailed 

statement submitted by appellant subsequent to the hearing represented his current monthly 

income and expenses. OWCP considered appellant’s financial information, as reported on the 

updated statement and in appellant’s statements, to determine if recovery of the overpayment 

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

OWCP determined that appellant had not established that all of his current income was 

substantially needed to meet ordinary and necessary living expenses. In making that 

determination, the hearing representative properly excluded the Xfinity bill of $192.30 and EZ 

pass charge of $75.00 as they were not considered ordinary or necessary expenses.31 The hearing 

representative also properly excluded a cell phone charge of $92.00 as the bill was not in 

appellant’s name.32 

The hearing representative excluded appellant’s entire monthly credit card debt finding 

that it could not be considered so as to avoid counting such expenses twice. The Board notes that 

while the hearing representative referenced its procedures33 the hearing representative failed to 

provide an explanation, as its procedures required, as to why appellant’s credit card expenses were 

not considered ordinary and necessary. Absent such explanation, the Board notes that the 

procedures allow for the minimum payment required by the creditor to be considered.34 In this 

case, the minimum payment required by appellant’s creditors total $286.23.35 Adding the 

minimum credit card payment of $286.23 to appellant’s other expenses of $1,833.3336 equals a 

total monthly expense of $2,119.56. Subtracting that amount from appellant’s reported monthly 

income of $2,833.29 equals $713.73 in income over debt each month. Thus, based on appellant’s 

statements and the record, appellant’s monthly income exceeded his ordinary and necessary living 

 

29 See supra note 27 at Chapter 6.400.4(b)(2).

30 20 C.F.R. § 10.436.

31 See D.C., Docket No. 17-0559 (issued June 21, 2018); S.W., Docket No. 11-1687 (issued July 23, 2012).

32 See R.A., Docket No. 13-1121 (issued October 29, 2013). 

33 See supra note 27.

34 Id.

35 The minimum credit card payments are $49.32, $200.91, and $38.00, which total $286.23.

36 Appellant’s half of the mortgage $1,180.60; food $300.00; car insurance $86.00; half of electric $129.86; gas 

$80.35; Mutual of Omaha Insurance $56.52, which total $1,833.33.
8

expenses by more than $50.00, he did not need substantially all of his income for ordinary and 

necessary living expenses.37

Additionally, the evidence does not demonstrate that recovery of the overpayment would 

be against equity and good conscience. Appellant did not submit evidence to substantiate that he 

would experience severe financial hardship in attempting to repay the debt, or that in reliance on 

such payment he gave up a valuable right or changed his position for the worst. Therefore, OWCP 

properly found that recovery of the overpayment would not defeat the purpose of FECA or be 

against equity and good conscience.38

Because appellant has failed to establish that recovery of the overpayment would defeat 

the purpose of FECA or be against equity and good conscience, he has failed to establish that 

OWCP abused its discretion by refusing to waive recovery of the overpayment.39

On appeal counsel contends that OWCP’s decision is contrary to fact and law. As 

discussed, OWCP found appellant not at fault in the creation of the overpayment; however, failed 

to establish that recovery of the overpayment would defeat the purpose of FECA or be against 

equity and good conscience.

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 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.40

ANALYSIS -- ISSUE 3

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

$200.00 every 28 days from appellant’s continuing compensation payments. 

In setting the recovery rate at $200.00, the hearing representative explained how he

considered the factors set forth at 20 C.F.R. § 10.441(a) in setting the amount of repayment from 

continuing compensation benefits to minimize hardship, while liquidating the debt, as appellant 

had financial resources sufficient for more than ordinary needs.41 Thus, the hearing representative 

did not abuse his discretion in setting the rate of recovery.42 The Board therefore finds that OWCP 

 

37 See G.L., Docket No. 19-0297 (issued October 23, 2019).

38 See N.J., supra note 28; V.T., Docket No. 18-0628 (issued October 25, 2018). 

39 See D.M., Docket No. 17-0810 (issued October 2, 2017).

40 20 C.F.R. § 10.441(a); see A.F., supra note 25; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

41 See D.S., Docket No. 18-1447 (issued July 22, 2019).

42 See T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).
9

properly required recovery of the overpayment from appellant’s continuing compensation 

payments at the rate of $200.00 every 28 days.

CONCLUSION

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

$10,059.35 for the period October 1, 2017 through August 18, 2018 because he concurrently 

received SSA age-related retirement benefits while receiving FECA benefits, for which he was 

without fault. The Board further finds that OWCP properly denied waiver of recovery of the 

overpayment and properly required recovery of the overpayment by deducting $200.00 every 28 

days from his continuing compensation payments. 

ORDER

IT IS HEREBY ORDERED THAT the April 26, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 4, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board