United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer

__________________________________________

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Docket No. 18-0740

Issued: February 4, 2019

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 22, 2018 appellant filed a timely appeal from a November 1, 2017 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. 

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $29,844.09 because she concurrently received Social Security Administration (SSA) 

benefits while receiving FECA benefits for the period July 1, 2015 through July 22, 2017; 

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

OWCP properly required repayment of the overpayment by deducting $300.00 every 28 days from 

appellant’s continuing compensation.

 

1 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

On February 12, 1998 appellant, then a 48-year-old distribution clerk, filed an occupational 

disease claim (Form CA-2) alleging that she sustained bilateral hand, wrist, arm, and shoulder and 

neck conditions as a result of her federal employment duties which involved keying on a letter 

sorting machine. On April 20, 1998 OWCP accepted the claim for bilateral carpal tunnel 

syndrome and cervical radiculopathy. Subsequently, it expanded acceptance of the claim to 

include brachial neuritis or radiculitis, displacement of cervical intervertebral disc without 

myelopathy, and a brief depressive reaction. OWCP paid appellant wage-loss compensation 

benefits on the periodic rolls as of March 21, 2004. 

By letter dated September 20, 2013, OWCP explained appellant’s entitlement to 

compensation benefits. In an accompanying Form 1049, it also advised her that, since she was 

covered under the Federal Employees Retirement System (FERS), OWCP must deduct at least 

part of her SSA retirement benefit to which she would be entitled based on age, explaining that a 

portion of a FERS benefit was included in SSA retirement benefits. Appellant was therefore 

advised to notify OWCP immediately after filing for or receiving SSA retirement benefits. 

On EN1032 forms signed by appellant on July 7, 2015, July 6, 2016, and July 3, 2017, she 

indicated that she was receiving SSA benefits as part of an annuity for federal service. 

On August 3, 2017 SSA forwarded a FERS/SSA dual benefits calculation form to OWCP. 

This indicated that appellant had received SSA retirement benefits beginning in July 2015 when 

her SSA rate with FERS was $1,685.30 and without FERS $484.20, and that beginning in 

December 2016, her SSA rate with FERS was $1,690.30 and without FERS $485.60. 

By letter dated August 15, 2017, OWCP notified appellant that, based on information 

provided by SSA regarding the amount her SSA benefit was attributable to federal service, her 

FECA wage-loss compensation had been adjusted. 

On August 16, 2017 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $29,844.09 had been created. It explained that the overpayment 

occurred because a portion of appellant’s SSA benefits that she received from July 1, 2015 through 

July 22, 2017 was based on credits earned while working in the Federal Government, and that this 

portion of her SSA benefit was a prohibited dual benefit. OWCP found her at fault in the creation 

of the overpayment and provided an overpayment action request form and an overpayment 

recovery questionnaire (Form OWCP-20) for her completion.

2

 It informed appellant of the actions 

she could take and allotted 30 days for her to respond.

On a September 9, 2017 overpayment action request form, appellant requested a decision 

based on the written evidence. She disagreed that the overpayment occurred and with the amount 

of the overpayment, and she also requested a waiver of recovery of the overpayment. Appellant 

maintained that the overpayment occurred through no fault of her own, indicating that she reported 

 

2 OWCP also requested that appellant submit supporting financial documentation including income tax returns, 

bank account statements, bills and cancelled checks, pay slips, and any other records which supported income and 

expenses listed. 
3

all information required, and that OWCP had taken no action. On an attached overpayment 

recovery questionnaire, she noted monthly income of $1,890.97 in FECA benefits and $1,690.00 

from SSA, for a total monthly income of $3,584.97, and monthly expenses of $3,925.00 with assets 

totaling $66,601.53. Appellant attached limited financial information including dental, optical, 

wellness center services, wellness products, chiropractic services, pest control, household repair, 

credit card, bank loan, lawn maintenance water, home fuel, and electric service statements. In 

attached statements, she contended that repaying the overpayment would cause severe financial 

hardship because it would restrict her health care and would jeopardize her ability to stay in her 

home. Appellant also contended that it would be against equity and good conscience because 

OWCP had failed to act in a timely manner. 

By decision dated November 1, 2017, OWCP finalized the preliminary determination of a 

$29,844.09 overpayment of compensation. It determined that appellant was without fault in the 

creation of the overpayment, but denied waiver of recovery of the overpayment. After converting 

her 28-day FECA compensation to a monthly amount, OWCP determined that her combined 

monthly income from FECA and SSA was $3,738.55 and that she had $2,920.77 in current and 

ordinary monthly expenses. It set repayment at $300.00 every 28 days from appellant’s continuing 

FECA compensation. 

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 duty.3 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.4 

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

of compensation by the amount of any SSA benefits that are attributable to federal service of the 

employee.5 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.6 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); see E.K., Docket No. 18-0587 (issued October 1, 2018).

6 FECA Bulletin No. 97-09 (February 3, 1997).
4

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

at 62 years.7 Section 404.409 of SSA regulations provides that for individuals born from 1943 to 

1954, full retirement age is 66 years.8 

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $29,844.09.

In its August 3, 2017 decision, OWCP found that an overpayment of compensation had 

been created for the period July 1, 2015 through July 22, 2017. The overpayment was based on 

the evidence received from SSA with respect to benefits paid to appellant. A claimant cannot 

receive both compensation for wage loss and SSA retirement benefits attributable to federal service 

for the same period.9 The information provided by SSA indicated that appellant received agebased SSA benefits that were attributable to federal service during the period July 1, 2015 through 

July 22, 2017. 

To determine the amount of the overpayment, the portion of the SSA benefits that were 

attributable to federal service must be calculated. OWCP received evidence from SSA with respect 

to the specific amount of age-based SSA retirement benefits that were attributable to federal 

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

commencing July 1, 2015 through July 22, 2017. OWCP provided its calculations for each 

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

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

period July 1, 2015 through July 22, 2017 and finds that an overpayment of compensation in the 

amount of $29,844.09 was created.10

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.”

11

 Section 10.438 of OWCP 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 

on an overpayment would defeat the purpose of FECA or be against equity and good conscience. 

 

7 20 C.F.R. § 404.310.

8

Id. at § 404.409.

9 Supra notes 5 and 6; see E.K., supra note 5.

10 See D.C., Docket No. 17-0559 (issued June 21, 2018).

11 5 U.S.C. § 8129.
5

Failure to submit the requested information within 30 days of the request shall result in denial of 

waiver.12

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 regulations.13

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.14 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.15 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 $50.00.16

OWCP procedures in effect at the time of the November 1, 2017 decision17 provided that 

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

individual with a spouse or dependent plus $960.00 for each additional dependent.18 An 

individual’s liquid assets include, but are not limited to cash, the value of stocks, bonds, saving 

accounts, mutual funds, and certificate of deposits. 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.19

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

when an 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.20 OWCP 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 

 

12 20 C.F.R. § 10.438.

13 Id. at §§ 10.434-10.437.

14 Id. at. § 10.436.

15 Id. 

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

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

17 The procedures were revised in September 2018.

18 Supra note 16.

19 Id. 

20 20 C.F.R. § 10.437; see G.K., Docket No. 18-0243 (issued August 17, 2018).
6

on the payments or on the notice of payment.21 Donations to charitable causes or gratuitous 

transfers of funds to other individuals are not considered relinquishments of valuable rights.22 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.23 

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 must 

be considered. Repayment is still required unless adjustment or recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience.24

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

of FECA because her assets exceed the resource base of $4,800.00, as provided in OWCP 

procedures.25 The supporting financial information of record documents assets in excess 

of $66,000.00. Because appellant has not met the second prong of the two-prong test of whether 

recovery of the overpayment would defeat the purpose of FECA, it is not necessary to consider 

the first prong of the test, i.e., whether her monthly income exceeded her monthly ordinary and 

necessary expenses by more than $50.00.26 She did not establish that she was entitled to waiver 

on the basis of defeating the purpose of FECA.27

Appellant asserts on appeal that OWCP’s hearing representative did not properly consider 

reported expenses. However, as noted above, OWCP need not address whether her monthly 

expenses exceeded her monthly income as her assets exceed the resource base of $4,800.00.28 

Moreover, the guidelines for determining ordinary and necessary expenses are set forth in OWCP’s 

procedures, and the Board finds that OWCP properly calculated such expenses in this case.29

 

21 Supra note 16 at Chapter 2.600.b(3) (June 2009).

22 20 C.F.R. § 10.437(b)(1) (2011); see R.E., Docket No. 17-1625 (issued July 18, 2018).

23 Id. at § 10.437(b)(2) (2011); see G.K., supra note 20.

24 Id. at § 10.436.

25 Id.

26 Id. 

27 See S.H., Docket No. 16-0680 (issued August 4, 2016).

28 Supra note 16.

29 20 C.F.R. § 10.437; see also D.C., Docket No. 17-0559 (issued June 21, 2018).
7

As appellant has not met her burden of proof to establish that recovery of the overpayment 

of compensation would defeat the purpose of FECA or be against equity and good conscience, the 

Board finds that OWCP did not abuse its discretion in denying waiver of recovery.30

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 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 soon as the error is discovered or his 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 hardship.32

ANALYSIS -- ISSUE 3

The Board finds that OWCP gave due regard to the relevant factors noted above in setting 

a rate of recovery of $300.00 per compensation period, and finds that OWCP’s hearing 

representative did not abuse his discretion in setting appellant’s current and ordinary monthly 

expenses at $2,920.77 every 28 days.

33

 

The record indicates that appellant’s monthly income of $3,738.55 exceeds her current and 

ordinary monthly expenses by approximately $817.00 per month. OWCP therefore did not abuse 

its discretion in finding that she should repay the overpayment at the rate of $300.00 per 

compensation period.34

CONCLUSION

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

of compensation in the amount of $29,844.09 and that OWCP properly denied waiver of recovery 

 

30 G.K., supra note 20.

31 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

32 Id.

33 Supra note 14.

34 See V.T., Docket No. 18-0628 (issued October 25, 2018).
8

of the overpayment. OWCP also properly required recovery of the overpayment by deducting 

$300.00 every 28 days from her continuing compensation payments. 

ORDER

IT IS HEREBY ORDERED THAT the November 1, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 4, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board