United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.L., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

MEDICAL COMMAND, Fort Bragg, NC, 

Employer

__________________________________________

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Docket No. 19-1786

Issued: July 6, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 21, 2019 appellant filed a timely appeal from February 22 and May 21, 2019 

merit decisions of the Office of Workers’ Compensation Programs (OWCP).1 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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred eighty days from February 22, 2019, the date of OWCP’s last decision, was 

August 21, 2019. Because using August 27, 2019, the date the appeal was received by the Clerk of the Appellate 

Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of 

the U.S. Postal Service postmark is August 21, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the May 21, 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 OWCP properly reduced appellant’s wage-loss compensation 

benefits, effective May 29, 2016, based on his actual earnings as a nurse consultant; (2) whether 

appellant received an overpayment of compensation in the amount of $12,401.44, for which he 

was not at fault, as he concurrently received Social Security Administration (SSA) age-related 

retirement benefits and FECA wage-loss compensation for the period July 1, 2018 through 

March 30, 2019; and (3) whether OWCP properly denied waiver of recovery of the $12,401.44 

overpayment of compensation.

FACTUAL HISTORY

On October 4, 2011 appellant, then a 59-year-old clinical/medical-surgical nurse, filed a 

traumatic injury claim (Form CA-1) alleging that, on October 3, 2011, he injured his left wrist and 

right thigh when he slipped and fell on a wet floor while in the performance of duty. OWCP 

accepted the claim for sprains of the right hip, thigh, knee, and leg. Appellant worked 

intermittently and stopped work on October 24, 2011. He underwent an OWCP-approved surgical 

repair of the right knee quadriceps tendon rupture on October 26, 2011. OWCP paid appellant

wage-loss compensation on the supplemental rolls commencing November 20, 2011. Appellant

returned to work in September 2012.4

On May 19, 2016 appellant accepted a permanent job offer as a GS-6 step 10 nurse 

consultant. The salary was listed as $97,069.00 which included night differential, and Saturday 

and Sunday premium pay. The position was defined as sedentary, with lifting and carrying limited 

to less than 10 pounds. Frequent use of a keyboard and telephone was required. 

By decision dated January 20, 2017, OWCP finalized a loss of wage-earning capacity 

(LWEC) determination finding that appellant had the capacity to earn wages as a nurse consultant 

with wages of $1,866.71 per week effective May 29, 2016. It found that the position fairly and 

reasonably represented appellant’s wage-earning capacity and the position was suitable for 

appellant’s partially disabling condition. A computation of compensation worksheet was included 

which documented the required application of the Shadrick5formula used to determine appellant’s 

wage-earning capacity. OWCP noted that, as of May 29, 2016, appellant’s current pay rate as 

nurse (clinical/medical-surgical) was $1,904.38. It determined that he had a wage-earning capacity 

of 98 percent and that his net compensation rate was $117.00 every four weeks.

In a November 14, 2018 letter, the employing establishment indicated that there was an 

error in the May 13, 2016 permanent job offer. It noted that the salary on the job offer should have 

been $84,171.00 annually and should not have included premium pay. However, the employing 

establishment also noted that appellant’s loss of premium pay should have been included as part 

of the LWEC determination. It requested that the LWEC decision be modified based on the correct 

salary and adjusted effective September 2, 2018. An attached September 2, 2018 Notification of 

Personnel Action (Standard Form 50-B), noted appellant’s annual salary as $86,203.00. 

 

4 By decision dated December 17, 2012, OWCP granted appellant a schedule award for 13 percent permanent 

impairment of the right lower extremity. The award ran 37.44 weeks for the period October 16 through July 5, 2013.

5 Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d).
3

Due to the discrepancies in appellant’s salary, OWCP, in a December 12, 2018 letter, 

sought clarification of appellant’s salary commencing May 19, 2016. On January 18, 2019 the 

employing establishment advised that, effective May 29, 2016, appellant’s actual earnings should 

have been $84,171.00.6 It also noted the amounts of Saturday, Sunday, and Holiday premium pay,

and night differential pay that appellant earned one year prior to the date of injury as: $5,852.72, 

$2,278.24, $3,770.88, and $7,543.64, respectively.

By decision dated February 13, 2019, OWCP modified the January 20, 2017 LWEC 

determination. It found that the LWEC determination was issued in error as the May 13, 2016 

permanent job offer was based on incorrect salary information.

By decision dated February 22, 2019, OWCP issued an LWEC determination finding that 

appellant had the capacity to earn wages as a nurse consultant with wages of $1,618.67 per week,

effective May 29, 2016.7 It found that the position fairly and reasonably represented his wageearning capacity and the May 13, 2016 permanent light-duty position was suitable for his partially 

disabling condition. A computation of compensation worksheet was included which documented 

the required application of the Shadrick8formula used to determine appellant’s wage-earning 

capacity.9 Based on the LWEC, appellant received net compensation of $1,202.00 every four 

weeks.

On EN1032 form dated March 8, 2019, appellant reported that he was in receipt of benefits 

from SSA as part of an annuity for federal service, which he had received since August 2018. 

On March 21, 2019 SSA forwarded a Federal Employees Retirement System (FERS)/SSA

dual benefits calculation form to OWCP. The form set forth the SSA compensation based upon 

his rate without FERS and with FERS from July 2018 through January 2019. The form indicated 

that beginning July 1, 2018, appellant’s SSA rate with FERS was $2,551.90 and without FERS 

$1,215.70; beginning December 1, 2018, his SSA rate with FERS was $2,623.30 and without 

FERS was $1,249.70; and beginning January 1, 2019, his SSA rate with FERS was $2,750.80 and 

without FERS was $1,299.60. An accompanying FERS Offset Calculation Worksheet calculated 

the overpayment for the period July 1 to November 30, 2018 as $6,739.73; for the period 

December 1 to 31, 2018 as $1,403.79; and for the period January 1 to March 30, 2019 as $4,257.92; 

for a total overpayment of $12,401.44. 

In an April 10, 2019 letter, OWCP advised appellant 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, which required an offset of his FECA compensation benefits. It 

advised that $1,451.20 was calculated as the amount which must be offset against his 

compensation benefits. OWCP indicated that since Social Security benefits were paid monthly, 

 

6 The employing establishment advised, in a February 11, 2019 letter, that appellant was not required to pay any of 

the overpayment back to the employing establishment from May 29, 2016 through August 31, 2018 caused by the 

salary error.

7 This was based on a base pay of $84,171.00 annually, effective May 29, 2016. 

8 See supra note 5.

9 OWCP noted that, as of May 29, 2016, appellant’s current pay rate as nurse (clinical/medical-surgical) was 

$2,003.95 and that he was capable of earning $1,618.67.
4

and compensation benefits were paid every 28 days, the monthly offset amount of $1,451.20 

adjusted to a 28-day payment cycle amounted to $1,339.57. It noted that the offset amount of

$1,339.57 would begin on March 31, 2019. OWCP also advised that since the FERS offset was 

$1,339.57, which was more than the wage-earning capacity entitlement of $1,224.00, the gross 

amount of compensation had been deducted and applied to the FERS offset, which resulted in a 

new net compensation payment of zero.

In a preliminary determination dated April 10, 2019, OWCP informed appellant that he 

received an overpayment of compensation in the amount of $12,401.44 because the SSA/FERS 

offset was not applied to payments for the period July 1, 2018 through March 30, 2019. It 

determined that he was without fault in the creation of the overpayment, because he was not aware, 

nor could he reasonably been expected to know, that it had paid him compensation incorrectly. 

OWCP requested that appellant submit a completed overpayment recovery questionnaire (Form 

OWCP-20) to determine a fair repayment method, and advised him that he could request a waiver 

of recovery of the overpayment. It also requested that he provide supporting financial 

documentation, including copies of income tax returns, bank account statements, bills, pay slips, 

and any other records to support reported income and expenses. OWCP advised appellant that it 

would deny waiver of recovery of the overpayment if he failed to furnish the requested financial 

information within 30 days. It further notified him 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 responded to the preliminary overpayment determination by submitting the 

following evidence: a May 7, 2019 letter from American Federation Government Employees 

(AFGE) advising of appellant’s appointment with SSA; a May 8, 2019 letter from the SSA noting 

that appellant was not receiving a Social Security disability benefit and that he began receipt of his 

retirement benefit after his full retirement age; and a May 14, 2019 letter from AFGE which 

attached the policy from SSA regarding Social Security benefits and OWCP benefits offset. 

By decision dated May 21, 2019, OWCP finalized the preliminary determination that 

appellant received an overpayment of compensation in the amount of $12,401.44, for which he 

was not at fault, as he concurrently received SSA age-related retirement benefits while receiving 

FECA wage-loss compensation benefits for the period July 1, 2018 through March 30, 2019. It 

denied waiver of recovery of the overpayment as he had not provided any financial information 

regarding his income and expenses. OWCP requested that the overpayment be recovered in full 

within 30 days.10

 

10 OWCP further noted that since appellant’s FERS offset amount of $1,339.57 is more than his wage-earning 

capacity entitlement of $1,224.00, the gross amount of compensation has been deducted and applied to the FERS 

offset.
5

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim, it has the burden of proof to establish that the disability has 

ceased or lessened in order to justify termination or modification of compensation benefits.11

A wage-earning capacity determination is a finding that a specific amount of earnings, 

either actual earnings or earnings from a selected position, represents a claimant’s ability to earn 

wages.12 Compensation payments are based on the wage-earning capacity determination, and it 

remains undisturbed until properly modified.13

Under section 8115(a) of FECA wage-earning capacity is determined by the actual wages 

received by an employee if the earnings fairly and reasonably represent his or her wage-earning 

capacity.14 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or 

if the employee has no actual earnings, the wage-earning capacity is determined with due regard 

to the nature of the injury, the degree of physical impairment, the usual employment, age, 

qualifications for other employment, the availability of suitable employment, and other factors and 

circumstances which may affect the wage-earning capacity in his or her disabled condition.15 

Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor 

market under normal employment conditions. OWCP applies the principles set forth in Albert C. 

Shadrick16 as codified in section 10.403 of its implementing regulations,17 to determine the 

percentage of the employee’s LWEC.18

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted unless there is a material change in the nature and extent of 

the injury-related condition, the employee has been retrained or otherwise vocationally 

 

11 See C.H., Docket No. 19-0136 (issued May 23, 2019).

12 5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

13 See M.F., Docket No. 18-0323 (issued June 25, 2019).

14 5 U.S.C. § 8115(a).

15 Id.; see also Z.W., Docket No. 18-1000 (issued June 24, 2019).

16 5 ECAB 376 (1953).

17 20 C.F.R. § 10.403.

18 See J.H., Docket No. 18-1319 (issued June 26, 2019).
6

rehabilitated, or the original determination was, in fact, erroneous.19 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.20

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined appellant’s LWEC, effective May 29, 

2016, based on his actual earnings as a nurse consultant. 

By decision dated February 22, 2019, OWCP finalized a modified LWEC determination 

finding that appellant had the capacity to earn wages as nurse consultant with wages of $1,618.67

per week effective May 29, 2016.21 The Board finds that appellant successfully performed the 

duties as a nurse consultant for over two years (May 29, 2016 to February 22, 2019), which 

supports that the position fairly and reasonably represented his wage-earning capacity.22 The 

Board further notes that the record does not establish that the nurse consultant position constituted 

part-time, sporadic, seasonal, or temporary work.23 Moreover, the record indicates that the 

position was not a make-shift position designed for appellant’s particular needs.24 Appellant 

successfully performed the nurse consultant position for at least 60 days and the wages appellant 

earned beginning May 29, 2016 were less than the current wages of his date-of-injury job. Based 

upon the information provided by the employing establishment regarding an incorrect pay rate, 

OWCP modified the January 20, 2017 LWEC determination as the May 13, 2016 permanent job 

offer was based on incorrect salary information. It properly determined that appellant did not 

receive pay for night differential or premium pay as a nurse consultant, therefore, appellant had a 

greater loss of earnings. In a revised computation of compensation worksheet, OWCP properly 

applied the Shadrick25 formula and found that appellant was entitled to a net compensation of 

$1,202.00 every four weeks. The Board thus finds that the February 22, 2019 LWEC 

determination was properly issued based upon its calculations.

26

Accordingly, the Board finds that OWCP properly determined that appellant’s earnings as 

a nurse consultant fairly and reasonably represented his wage-earning capacity and he was entitled 

to a net compensation of $1,202.00 every four weeks. 

 

19 See S.C., Docket No. 18-0517 (issued February 25, 2020); J.A., Docket No. 17-0236 (issued July 17, 2018); 

Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993).

20 See S.C., id; O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

21 The position had an annual salary of $84.171.00 annually effective May 29, 2016. 

22 See S.C., supra note 20; J.A., Docket No. 17-0236 (issued July 17, 2018).

23 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual 

Wages, Chapter 2.815.5 (June 2013).

24 Id.

25 Supra note 5; 20 C.F.R. § 10.403(d).

26 OWCP noted that, as of May 29, 2016, appellant’s current pay rate as nurse (clinical/medical-surgical) was 

$2,003.95. It determined that appellant had an LWEC of $369.56 every four weeks.
7

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, at any time before OWCP. 

LEGAL PRECEDENT -- ISSUE 2

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.27 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.28

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.29 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.30 

ANALYSIS -- ISSUE 2

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

of $12,401.44, for which he was not at fault, as he concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation for the period July 1, 2018 through 

March 30, 2019.

As noted, a claimant cannot receive concurrent FECA compensation for wage loss and 

SSA age-related retirement benefits attributable to federal service for the same period.31 The 

information provided by SSA accurately indicated that appellant had received SSA age-related 

retirement benefits that were attributable to his federal service from July 1, 2018. This continued 

through March 30, 2019, after which OWCP adjusted his compensation. Thus, the record 

establishes that appellant received an overpayment of FECA wage-loss compensation.32

To determine the amount of overpayment, the SSA provided the rate with FERS, and 

without FERS, for specific periods in question commencing July 1, 2018 through March 30, 2019. 

OWCP provided its calculations for each relevant period based on an SSA Dual Benefit worksheet 

and in its April 10, 2019 preliminary overpayment determination. This amount differed for each 

period beginning July 1, 2018 through March 30, 2019. OWCP calculated the lack of offset from 

 

27 5 U.S.C. § 8102(a).

28 Id. at § 8116.

29 20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802 

(issued August 20, 2018).

30 FECA Bulletin No. 97-09 (February 3, 1997); see also M.D., Docket No. 19-1500 (issued February 24, 2020); 

N.B., Docket No. 18-0795 (issued January 4, 2019).

31 20 C.F.R. § 10.421(d); see also N.B., id.; A.C., Docket No. 18-1550 (issued February 21, 2019).

32 See R.R., Docket No. 19-0104 (issued March 9, 2020). 
8

July1, 2018 through March 30, 2019 resulted in an overpayment of compensation in the amount 

of $12,401.44. No contrary evidence was provided, and appellant has not contested that an 

overpayment occurred.

The Board has reviewed OWCP’s calculations and finds that it properly determined that 

appellant received prohibited dual benefits totaling $12,401.44, thus creating an overpayment of 

compensation in that amount, for the period July 1, 2018 through March 30, 2019. 

LEGAL PRECEDENT -- ISSUE 3

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.33 

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.34

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.35 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.36

OWCP’s 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.37 Failure to submit the requested information 

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

for waiver shall be considered until the requested information is furnished.38

 

33 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).

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

35 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).

36 Id. at § 10.437(a)(b).

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

38 Id. at § 10.438(b).
9

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly denied waiver of recovery of the $12,401.44 

overpayment of compensation.

OWCP found that appellant was without fault in the creation of the overpayment of 

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

preclude OWCP from recovering the overpayment.39 Waiver is only possible if recovery would 

defeat the purpose of FECA or be against equity and good conscience.40 Appellant, however, did 

provide the requisite financial documentation to OWCP.41

In its preliminary determination dated April 10, 2019, OWCP clearly explained the 

importance of providing the completed overpayment recovery questionnaire (Form OWCP-20) 

and supporting financial documentation. It advised appellant that it would deny waiver of recovery 

if he failed to furnish the requested financial information within 30 days. Appellant, however, 

failed to provide a completed overpayment recovery questionnaire or any financial documentation 

supporting his income and expenses. As a result, OWCP did not have the necessary financial 

information to determine whether waiver of recovery of the overpayment would defeat the purpose 

of FECA or would be against equity and good conscience.42 It was, therefore, required to deny 

waiver of recovery of the overpayment.43 

On appeal appellant contends that he is entitled to waiver of recovery as he was without 

fault in the creation of the overpayment. However, the fact that he was not at fault does not relieve 

him from liability for repayment of the overpayment of compensation.44 

CONCLUSION

The Board finds that OWCP properly determined appellant’s LWEC, effective May 29, 

2016, based on his actual earnings as a nurse consultant. The Board also finds that appellant 

received an overpayment of compensation in the amount of $12,401.44, for which he was not at 

fault, as he concurrently received SSA age-related retirement benefits and FECA wage-loss 

compensation for the period July 1, 2018 through March 30, 2019. The Board further finds that 

OWCP properly denied waiver of recovery of the $12,401.44 overpayment of compensation. 

 

39 See L.D., Docket No. 19-0606 (issued November 21, 2019); R.B., Docket No. 15-0808 (issued October 26, 2015).

40 20 C.F.R § 10.436; J.C., Docket No. 19-0122 (issued June 11, 2019).

41 Id. at § 10.438(b); M.D., Docket No. 19-1500 (issued February 24, 2020); T.J., Docket No. 19-1242 (issued 

January 13, 2020).

42 See E.M., Docket No. 19-0857 (issued December 31, 2019).

43 Supra note 40.

44 See M.G., Docket No. 19-0424 (issued July 1, 2019).
10

ORDER

IT IS HEREBY ORDERED THAT the May 21 and February 22, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: July 6, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board