United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.J., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, New York, NY, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1170

Issued: January 10, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On April 29, 2019 appellant filed a timely appeal from a March 25, 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 appellant received an overpayment of compensation in the 

amount for $17,882.11 for the period March 1, 2009 to February 9, 2013 because he concurrently 

received FECA benefits and age-related retirement benefits from the Social Security 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

Administration (SSA), for which he was without fault in its creation; (2) whether OWCP properly 

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

of the overpayment by deducting $470.17 every 28 days from appellant’s continuing compensation

benefits.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts 

are as follows. 

On October 3, 1994 appellant, then a 47-year-old laborer, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he injured his right knee when he slipped on an orange and 

banged his knee against the gun port of the monument he was cleaning while in the performance 

of duty. He stopped work on the date of injury. OWCP accepted the claim for right knee contusion

and right posterior horn meniscal tear. 

In a letter dated September 5, 1995, OWCP notified appellant that he was placed on the 

periodic compensation rolls effective July 13, 1995. On May 2, 1996 appellant returned to 

limited-duty part-time work, but stopped work again effective August 30, 1996 due to his inability 

to perform the position. OWCP again commenced payment of appellant’s wage-loss 

compensation benefits on the periodic compensation rolls.

In a form dated May 8, 2012, SSA reported the amount of age-related retirement benefits 

appellant received including the amount earned through the Federal Employees’ Retirement 

System (FERS) and the amount that he would have received without FERS. The form indicated 

that beginning in March 2009 appellant’s SSA rate with FERS was $561.50 and without FERS 

was $189.40, beginning in December 2011 his SSA rate with FERS was $581.70 and without 

FERS was $196.20. 

By letter dated February 4, 2013, OWCP notified appellant that it adjusted his FECA 

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

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

FERS was a prohibited dual benefit. It noted that SSA confirmed that his current monthly SSA 

retirement benefit amount with FERS was $581.70, but without FERS was $196.20. OWCP

indicated that beginning March 9, 2013 and continuing, he would receive net compensation of 

$1,683.15.

On February 1, 2019 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 found a 28-day FERS offset amount of $3,373.43 for the 275 days from March 1 to 

November 30, 2009, $4,477.47 for the 365 days from December 1, 2009 to November 30, 2010, 

$4,477.47 for the 365 days from December 1, 2010 to November 30, 2011, $4,651.42 for the 366 

 

3 Docket No. 98-0903 (issued July 27, 1998); Docket No. 00-0729 (issued February 26, 2001); Docket No. 11-1016 

(issued December 12, 2011); Docket No. 14-0889 (issued June 26, 2014); Docket No. 15-1543 (issued 

December 7, 2015). 
3

days from December 1, 2011 to November 30, 2012, and $902.32 for the 71 days from

December 1, 2012 to February 9, 2013. In total, OWCP found an overpayment in the amount of 

$17,882.11.

In a preliminary determination dated February 1, 2019, OWCP notified appellant that he 

had received an overpayment of compensation in the amount of $17,882.11 because it had failed 

to reduce his FECA compensation benefits for the period March 1, 2009 to February 9, 2013 by 

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

overpayment 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 $17,882.11. 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.

Appellant submitted an overpayment action request form dated February 12, 2019 

indicating that he disagreed with both fact and amount of overpayment and requested waiver of 

recovery of the overpayment. He asserted that the information provided by SSA was erroneous as 

only a fraction of the amount was attributable to his federal service and the current claim.

4

 

Appellant further submitted an overpayment recovery questionnaire (Form OWCP-20) which 

listed monthly income of $1,450.50 in SSA benefits for his spouse, $483.00 in SSA benefits for 

himself, $108.00 and $1,710.61 for civil service benefits, for a total monthly income of $3,751.61. 

He also listed total monthly expenses of $3,354.00, which included $1,400.60 for rent or mortgage, 

$420.00 for food, $215.00 for cable TV, $275.00 for utilities, $373.50 for car insurance, and 

$671.47 in other debts. Appellant noted that he had assets of $450.00 in a checking account. He

also submitted financial documentation in support of his request for waiver of recovery of the 

overpayment.

By decision dated March 25, 2019, OWCP finalized its determination that appellant 

received an overpayment of compensation in the amount of $17,882.11 for the period March 1, 

2009 to February 9, 2013, finding that it 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 the creation of the overpayment, but denied waiver of 

recovery of the overpayment because his income exceeded his expenses by more than $50.00. 

OWCP also related that appellant had not reported a monthly pension benefit in the amount of 

$580.95 and therefore it required recovery of the overpayment by deducting $470.17 every 28 days 

from his continuing FECA compensation payments.

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 

 

4 Appellant also alleged that OWCP had not timely provided him travel reimbursement forms and COLA increases. 

These matters are not relevant to the issues on appeal. These issues are not presently before the Board in this appeal.
4

performance of duty.5 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.6

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 

the employee.7 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.8

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $17,882.11 for the period March 1, 2009 to February 9, 2013, 

for which he was without fault. 

The overpayment was based on the evidence received from SSA regarding age-related

retirement benefits paid to appellant. The record indicates that while appellant was receiving 

compensation for total disability under FECA he concurrently received SSA age-related retirement 

benefits that were attributable to federal services during the period March 1, 2009 to 

February 9, 2013. A claimant cannot receive both FECA compensation for wage-loss and SSA 

age-related retirement benefits attributable to federal service for the same period.9

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 $17,882.11. The record includes 

a worksheet explaining the overpayment calculation. Appellant contested the fact and amount of 

the overpayment, arguing that SSA provided incorrect information as his overpayment should only 

be based the portion of his SSA benefits attributed to the federal service under the current claim 

and not based on his entire period of federal service. Appellant, however, failed to submit evidence 

substantiating that the information provided by SSA was incorrect. OWCP’s procedures do not 

provide for an apportionment of SSA benefits due to calculation of federal service for the claim 

on which an overpayment is based. As noted above, OWCP’s implementing regulations and 

FECA Bulletin No. 97-09 refer to SSA benefits earned while in federal employment.

10

 The Board 

has reviewed OWCP’s calculation of benefits received by appellant for the period March 1, 2009 

 

5 5 U.S.C. § 8102(a).

6

Id. at § 8116.

7 20 C.F.R. § 10.421(d); see D.S., Docket No. 18-1447 (issued July 22, 2019); S.O., Docket No. 18-0254 (issued 

August 2, 2018); L.J., 59 ECAB 264 (2007).

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

9 See supra notes 5 and 6.

10 Id.
5

to February 9, 2013 and finds that an overpayment of compensation in the amount of $17,882.11 

was created.11

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.

12

 

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.13

According to 20 C.F.R. § 10.436, 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 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.14 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.

15

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.16

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $17,882.11

overpayment of compensation.17

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 

 

11 See D.S., supra note 7; S.O., supra note 7; G.T., Docket No. 15-1314 (issued September 9, 2016).

12 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); A.S., Docket No. 17-0606 (issued December 21, 2017).

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

14 20 C.F.R. § 10.436. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment 

Determinations, Chapter 6.400.4.a.(2) (September 2018); L.C., Docket No. 19-0320 (issued July 26, 2019); B.F.,

Docket No. 13-0785 (issued September 20, 2013).

15 M.A., Docket No. 18-1666 (issued April 26, 2019); id. at Chapter 6.400.4.a(3).

16 Id. at § 10.437(a), (b).

17 See A.C., supra note 13.
6

conscience.

18

 In order to establish that repayment of the overpayment would defeat the purpose 

of FECA, appellant 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 established limit as 

determined by OWCP procedures.19

The Board finds that OWCP properly determined that appellant did not require 

substantially all of his income to meet ordinary living expenses. Based on appellant’s February 12, 

2019 overpayment recovery questionnaire and the record, appellant’s monthly income exceeded 

his ordinary and necessary living expenses by more than $50.00, he did not need substantially all 

of his income for ordinary and necessary living expenses.20 

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. 

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

overpayment.

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 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.21

ANALYSIS -- ISSUE 3

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

compensation by deducting $470.17 every 28 days from appellant’s continuing compensation

payments.

In setting the recovery rate at $470.17, OWCP found that appellant had listed income which 

exceeded expenses in the amount of $396.54; however; appellant’s bank statements reflected that 

he received a monthly pension of $580.95 which appellant had not reported as income. The 

March 25, 2019 decision explained how it 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, 

 

18 20 C.F.R. § 10.436. See also G.L., Docket No. 19-0297 (issued October 23, 2019).

19 Supra note 14.

20 G.L., supra note 18.

21 M.A., Docket No. 18-1666 (issued April 26, 2019).
7

while liquidating the debt, as appellant had financial resources sufficient for more than ordinary 

needs.22 The Board therefore finds that OWCP properly required recovery of the overpayment

from appellant’s continuing compensation payments at the rate of $470.17 every 28 days. 

CONCLUSION

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

of compensation in the amount of $17,882.11 during the period March 1, 2009 to February 9, 2013 

as he concurrently received FECA benefits and SSA age-related retirement 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 $470.17 every 28 

days from his continuing compensation payments. 

ORDER

IT IS HEREBY ORDERED THAT the March 25, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 10, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

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