United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Monroe, LA, Employer

__________________________________________

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Docket No. 18-1447

Issued: July 22, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 23, 2018 appellant, through counsel, filed a timely appeal from a June 6, 2018 

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 June 6, 2018 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 determined that appellant received an 

overpayment of compensation in the amount of $19,428.98 for the period September 1, 2014 to 

May 27, 2017, for which he was without fault, because he concurrently received FECA benefits 

and retirement benefits from the Social Security Administration (SSA) 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 $125.00 every 28 

days from appellant’s continuing FECA compensation payments. 

FACTUAL HISTORY

On April 5, 2011 appellant, then a 59-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he developed “foot problems” due to “continuous aggravation of 

standing and walking” while in the performance of duty. OWCP initially accepted the claim for 

other congenital anomalies of skin and later expanded the accepted conditions to include bilateral 

plantar fibromatosis. It placed appellant on the periodic compensation rolls effective 

August 28, 2011. Appellant returned to work as a modified city carrier effective May 18, 2015. 

In a form dated May 15, 2017, SSA advised OWCP that appellant had concurrently 

received FECA benefits and retirement benefits through the Federal Employees Retirement 

System (FERS) for the period September 1, 2014 to May 27, 2017. It provided a worksheet that 

indicated the amount that he received in retirement benefits including the amount earned through 

FERS and the hypothetical amount that he would have received without FERS. Including the 

appropriate offset for FERS, it indicated that appellant was entitled to a monthly pay rate of 

$960.50 effective September 1, 2014, $976.80 effective December 1, 2014, $976.80 effective 

December 1, 2015, $979.70 effective December 1, 2016, and $979.70 effective January 1, 2017. 

The FERS offset calculation worksheet established that he had received a monthly pay rate of 

$1,540.10 effective September 1, 2014, $1,566.30 effective December 1, 2014, $1,566.30

effective December 1, 2015, $1,571.00 effective December 1, 2016, and $1,573.90 effective 

January 1, 2017 without the appropriate offset for FERS. 

By letter dated June 16, 2017, OWCP notified appellant that it adjusted his FECA 

compensation benefits to offset the portion of his SSA retirement benefits attributable to federal 

service as the concurrent receipt of FECA compensation benefits with retirement benefits under 

FERS is a prohibited dual benefit. It indicated that, effective the pay period beginning May 28 to 

June 24, 2017, and continuing, he would receive net compensation of $1,220.51. 

On June 20, 2017 OWCP calculated the overpayment 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 $1,738.80 for the 91 days from 

September 1 to November 30, 2014, $7,093.43 for the 365 days from December 1, 2014 to 

November 30, 2015, $7,112.87 for the 366 days from December 1, 2015 to November 30, 2016, 

$604.30 for the 31 days from December 1 to 31, 2016, and $2,879.58 for the 147 days from 

January 1 to May 27, 2017 to find an overpayment of $19,428.98. 

In a preliminary determination dated September 27, 2017, OWCP notified appellant that 

he had received an overpayment of compensation in the amount of $19,428.98 because it had failed 
3

to reduce his FECA compensation benefits for the period September 1, 2014 to May 27, 2017 by 

the portion of his SSA benefits that were attributable to his federal service. It calculated the 

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

FERS for each period. OWCP then multiplied the daily offset amount by the number of days in 

each period to find a total overpayment of $19,428.98. It further made a preliminary determination 

that appellant was without fault in the creation of the overpayment. OWCP requested that he 

complete the 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 telephone conference, a final decision based on the written 

evidence, or a prerecoupment hearing. 

On October 26, 2017 OWCP received a change of address from appellant. In this letter, 

appellant also argued that repaying the overpayment would put him and his family in a hardship 

crisis. He further indicated that he was trying to work part time while disabled. 

Appellant submitted an overpayment action request form dated October 23, 2017 

indicating his belief that the overpayment occurred through no fault of his own and requested a 

waiver. He further submitted an overpayment recovery questionnaire (Form OWCP-20) which 

listed monthly income of $720.00 for himself and his spouse, $1,479.00 in SSA benefits, and 

$1,610.00 in survivor spousal benefits from Office of Personal Management, for total monthly 

income of $3,809.00. Appellant also listed expenses of $5,383.73, which included in part 

$2,054.75 for rent or mortgage, $750.00 for food, $200.00 for clothing, $934.00 for utilities, 

$450.99 for other household expenses, and $993.99 in debts. He noted that he had assets of 

$28,325.18, including $28,300.00 in checking accounts and $25.18 in savings accounts. Appellant 

also submitted a number of financial statements and credit card bills in support of his claim. 

In two letters dated January 18, 2018, counsel inquired with OWCP as to whether the 

overpayment could be deducted from a schedule award and requested a reduction in the rate of 

recovery to $100.00 every 28 days. 

By decision dated June 6, 2018, OWCP finalized the preliminary determination regarding 

the overpayment of compensation in the amount of $19,428.98 for the period September 1, 2014 

to May 27, 2017, finding that OWCP had failed to offset appellant’s FECA compensation 

payments for the portion of his SSA retirement benefits that were attributable to his federal service. 

It further found that he was without fault in creating the overpayment, but denied waiver of 

recovery of the overpayment because his income exceeded his expenses. OWCP calculated that 

appellant’s total income was $33,382.724and his expenses totaled $8,848.28,

5 which yielded a 

 

4 OWCP calculated this amount by adding FECA compensation benefits in the amount of $1,248.54 to his total 

monthly income of $3,809.00 in addition to his total assets of $28,325.18 for a total income of $33,382.72. 

5 OWCP calculated this amount by adding $2,054.75 for rent/mortgage, $750.00 for food, $200.00 for clothing, 

$934.00 for bills, $450.99 for car note, $993.99 for credit cards, $1,030.54 for Canvas Cove Home Mortgage first 

note, $433.05 for Canvas Cove Home Mortgage second note, $77.56 for Canvas Cove Home Tax, $74.00 for Canvas 

Cove Home Insurance, $208.18 for Canvas Cove Home Electric Bill, $66.64 Canvas Cove Home Water/Sewer, 

$191.92 Canvas Cove Home Cable/Internet/Home Phone, $64.05 for Canvas Cove Home Trash, $99.16 for Canvas 

Cove Home Cell Phone, $75.00 for Hartford Circle Home Water/Sewer, $115.77 for Hartford Circle Home Electricity, 

$20.80 for Hartford Circle Home Gas, $439.60 for Coleman Valley Loop Home Mortgage, $65.00 for Coleman Valley 

Loop Home Mortgage Electricity, $16.00 for Coleman Valley Loop Home Mortgage Water, $38.12 for Coleman 

Valley Loop Home Mortgage Internet/Phone, $99.16 for cell phone, and $350.00 for auto fuel, for total expenses in 

the amount of $8,848.28. 
4

surplus of $24,534.44. It required recovery by deducting $125.00 every 28 days from his

continuing FECA compensation payments. 

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 

duty.6 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.7

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.8 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.9

Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins 

at 62 years of age.10 Section 404.409 of SSA regulations provides that for individuals born from 

1943 to 1954, full retirement age is 66 years.11

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $19,428.98 for the period September 1, 2014 to May 27, 2017, 

for which he was without fault. The overpayment was based on the evidence received from SSA 

on May 15, 2017 regarding benefits paid to him. The record indicates that while appellant was 

receiving compensation for total disability under FECA he concurrently received SSA age-based 

retirement benefits that were attributable to federal services during the period September 1, 2014 

to May 27, 2017. A claimant cannot receive both compensation for wage-loss and SSA retirement 

benefits attributable to federal service for the same period.12

OWCP calculated the amount of overpayment by determining the difference between the 

SSA amount with and without FERS for each period and multiplying the daily offset amount by 

the number of days in each period, to find a total overpayment of $19,428.98. The record includes 

an overpayment worksheet explaining the overpayment calculation. Appellant has not contested 

 

6 5 U.S.C. § 8102(a).

7

Id. at § 8116.

8 20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

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

10 20 C.F.R. § 404.310.

11 Id. at § 404.409.

12 See supra notes 8 and 9.
5

the amount of the overpayment and no contrary evidence has been provided to show that OWCP’s 

calculations were incorrect. The Board has reviewed OWCP’s calculation of benefits received by 

him for the period September 1, 2014 to May 27, 2017 and finds that an overpayment of 

compensation in the amount of $19,428.98 was created.

13

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment of 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.14 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.15

The guidelines for determining whether recovery of an overpayment would defeat the 

purpose of FECA, or would be against equity and good conscience, are set forth in sections 10.434 

to 10.437 of OWCP’s regulations.16

Section 10.436 provides that recovery of an overpayment would defeat the purpose of 

FECA if recovery would cause hardship because the beneficiary 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.17 For waiver under 

the defeat the purpose of FECA standard, appellant must show that he or she needs substantially 

all of his or her current income to meet current ordinary and necessary living expenses, and that 

assets do not exceed the resource base.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

OWCP procedures in effect at the time of the March 8, 2018 decision20 provide that the 

assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual 

 

13 See S.O., supra note 8; G.T., Docket No. 15-1314 (issued September 9, 2016).

14 5 U.S.C. § 8129.

15 20 C.F.R. § 10.438.

16 Id. at §§ 10.434-10.437.

17 Id. at. § 10.436.

18 Id.

19 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.200.6.a(1)(b) (June 2009).

20 The procedures were revised in September 2018.
6

with a spouse or dependent plus $960.00 for each additional dependent.21 An individual’s liquid 

assets include, but are not limited to cash, the value of stocks, bonds, savings accounts, mutual 

funds, and certificate of deposits. Nonliquid 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, and 

furnishings/supplies.22

Recovery of an overpayment is also considered to be against equity and good conscience 

when any 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.23 OWCP’s procedures 

provide that, 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 Donations to charitable causes or 

gratuitous transfers of funds to other individuals are not considered relinquishments of valuable 

rights.25 An individual must show that he or she made a decision he or she otherwise would not 

have made in reliance on the overpaid amount and that this decision resulted in a loss.26

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the overpayment. 

OWCP found that appellant was not at fault in creating the overpayment of compensation. 

The overpayment cannot be waived unless recovery would defeat the purpose of FECA or would 

be against equity and good conscience. In order to establish that repayment of the overpayment 

would defeat the purpose of FECA, he must show that he requires substantially all of his income 

to meet current ordinary and necessary living expenses and that his assets do not exceed the 

resource base as determined by OWCP’s procedures.27

The Board finds that appellant’s total assets amount to $28,325.18. Appellant has not 

established that recovery of the overpayment would defeat the purpose of FECA as OWCP 

properly found that he did not meet the second prong of this test.28 His $28,325.18 in assets 

exceeded the allowable resource base of $12,700.00 (the sum of $10,300.00 for him and his wife, 

plus $2,400.00 for his two step-children). Because appellant has not met the second prong of the 

two-prong test for whether recovery of the overpayment would defeat the purpose of FECA, it is 

 

21 Supra note 19.

22 Id.

23 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

24 Federal (FECA) Procedure Manual, supra note 19 at Chapter 2.600.b(3) (June 2009).

25 20 C.F.R. § 10.437(b)(1); see E.H., supra note 23.

26 Id. at § 10.437(b)(2) (2011); see M.B., Docket No. 18-1101 (issued January 17, 2019).

27 Supra note 14.

28 L.F., Docket No. 15-0489 (issued May 11, 2015) (where the Board affirmed an OWCP hearing representative’s 

decision that a claimant was not entitled to waiver of recovery of an overpayment because he and his spouse had over 

$17,000.00 in their savings account, and the hearing representative determined that his assets exceeded the specified 

resource base).
7

not necessary for OWCP to consider the first prong of the test, i.e., whether his monthly income 

exceeded his monthly ordinary and necessary expenses by more than $50.00.

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

equity and good conscience because he has not shown that he would experience severe financial 

hardship in attempting to repay the debt or that he relinquished a valuable right or changed his

position for the worse in reliance on the payment which created the overpayment.

29 He argued 

that repaying the overpayment would put him and his family in a hardship crisis, but submitted no 

evidence that he relied upon the incorrect payments to his detriment or that he would experience 

severe financial hardship attempting to repay the debt. Appellant maintained that he was not at 

fault in creating the overpayment. However, the fact that an error by OWCP resulted in an 

overpayment does not by itself relieve a claimant from liability for repayment if the individual also 

was at fault in accepting the overpayment.

30

 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 show that OWCP abused its discretion by refusing to waive the overpayment.

Accordingly, the Board finds that OWCP properly denied waiver of recovery of the 

overpayment.

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.31

Section 10.441(a) of the 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 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.32

ANALYSIS -- ISSUE 3

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

compensation by deducting $125.00 every 28 days from appellant’s continuing compensation 

payments.

In determining that appellant could repay the overpayment through $125.00 deductions 

from continuing compensation payments, OWCP took into account his financial information, as 

well as factors set forth in 20 C.F.R. § 10.441 and found that this method of recovery would 

minimize any resulting hardship, not necessarily eliminate it, while at the same time liquidating 

 

29 Supra note 17.

30 20 C.F.R. § 10.435(a); Lawrence J. Dubuque, 55 ECAB 667 (2004).

31 See Lorenzo Rodriguez, 51 ECAB 295 (2000).

32 20 C.F.R. § 10.441(a).
8

the debt in a reasonably prompt fashion.33 Counsel requested a reduction in the rate of recovery 

to $100.00 every 28 days; however, the Board finds that OWCP gave due regard to the financial 

information provided by appellant and noted that appellant’s assets exceed the allowable resource 

base. Therefore, the Board finds that OWCP properly required recovery of the overpayment by 

deducting $125.00 from appellant’s compensation payments every 28 days. 

CONCLUSION

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

of compensation in the amount of $19,428.98 for the period September 1, 2014 to May 27, 2017, 

for which he was without fault, because he concurrently received FECA and SSA benefits without 

an appropriate offset. The Board further finds that OWCP properly denied waiver of recovery of 

the overpayment and properly determined that it would recover the overpayment by deducting 

$125.00 every 28 days from his continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the June 6, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 22, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

33 See L.F., supra note 28.