United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Hilo, HI, Employer

__________________________________________

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Docket No. 20-0445

Issued: September 2, 2021

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 December 19, 2019 appellant filed a timely appeal from an October 18, 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 of $14,852.67 for which he was without fault, because he concurrently received FECA 

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

for the period November 1, 2013 through July 20, 2019, without an appropriate offset; (2) whether 

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the October 18, 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 

evidence for the first time on appeal. Id. 
2

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

required recovery of the overpayment by deducting $332.56 from appellant’s continuing 

compensation payments, every 28 days.

FACTUAL HISTORY

On November 12, 2003 appellant, then a 52-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his neck and back in a motor vehicle accident while in 

the performance of duty. His supervisor indicated that appellant’s retirement coverage was under 

the Federal Employees Retirement System (FERS). On January 5, 2004 OWCP accepted the claim 

for a concussion with brief loss of consciousness, post-concussion syndrome, cervical strain with 

radiculopathy, lumbar radiculopathy, tension headaches from the cervical strain, and depression 

and anxiety. It paid appellant wage-loss compensation on the supplemental rolls commencing 

December 12, 2003 and on the periodic rolls commencing March 31, 2004.

In an April 6, 2013 letter, OWCP informed appellant that its records indicated that he was 

approaching the minimum age at which an individual is eligible to receive SSA retirement benefits. 

It explained that FECA requires that an individual’s compensation benefits be reduced if that 

individual is also receiving SSA age-related retirement benefits, and that failure to report the 

receipt of such retirement benefits could result in an overpayment, which could be subject to 

recovery. 

On July 22, 2016 OWCP received a FERS/SSA dual benefits calculation worksheet, noting 

appellant’s SSA benefit rates with and without FERS commencing November 2013, 

December 2014, and December 2015.

An April 23, 2019 letter from the employing establishment indicated that appellant was 

receiving FECA compensation benefits and was eligible to receive SSA age-related retirement 

benefits. The employing establishment requested that OWCP contact SSA to determine if 

appellant’s benefits should be reduced by the FERS offset and to determine if an overpayment 

existed because appellant’s FERS offset had not been applied. 

On June 21, 2019 OWCP provided SSA with a FERS/SSA dual benefits calculation form

for its completion. 

On June 26, 2019 SSA completed the dual benefits calculation form, listing appellant’s 

SSA benefit rates with a FERS offset and without a FERS offset from November 2013 through 

December 2018. Beginning November 2013, the SSA rate with FERS was $1,244.90 and without 

FERS was $1,036.90. Beginning December 2013, the SSA rate with FERS was $1,263.90 and 

without FERS was $1,052.90. Beginning December 2014, the SSA rate with FERS was $1,284.90

and without FERS was $1,070.90. Beginning December 2015, the SSA rate with FERS was 

$1,284.90 and without FERS was $1,070.90. Beginning December 2016, the SSA rate with FERS 

was $1,289.00 and without FERS was $1,074.00. Beginning December 2017, the SSA rate with 

FERS was $1,314.00 and without FERS was $1,095.00. Beginning December 2018, the SSA rate 

with FERS was $1,351.50 and without FERS was $1,125.50.

In a July 31, 2019 letter, OWCP indicated that it had determined that appellant had been 

receiving both FECA and SSA age-related retirement benefits at the same time, resulting in a 

prohibited dual benefit. It explained that his FECA compensation would be offset in the amount 
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of $208.62 every 28 days and that his FECA compensation payments every 28 days would be 

$3,325.58 after the SSA offset. 

An August 1, 2019 FERS offset calculation worksheet noted each alleged period of 

overpayment and provided calculations, which resulted in a total overpayment in the amount of 

$14,852.67 during the period November 1, 2013 through July 20, 2019. 

In a preliminary determination dated August 13, 2019, OWCP informed appellant that he 

received an overpayment of compensation in the amount of $14,852.67 because the SSA/FERS 

offset was not applied to payments for the period November 1, 2013 through July 20, 2019. It 

determined that he was without fault in the creation of the overpayment because he relied on 

improper information given in writing by OWCP or by another government agency, which he had 

reason to believe was connected with the administration of benefits. 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 requested financial information, including copies of income tax returns, bank 

account statements, bills, pay slips, and any other records to support income and expenses. OWCP 

advised appellant that it would deny waiver if he failed to furnish the requested financial 

information within 30 days. It provided him with an overpayment action request form and further 

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 September 13, 2019 appellant requested that OWCP make a decision based on the 

written evidence regarding possible waiver of recovery of his overpayment. He indicated that he 

disagreed with the amount of the overpayment because he had not applied for Social Security 

retirement benefits until about a year after his 62nd birthday, and noted that he was not given back 

pay for the payments he could have received, and that he was not aware that he was being overpaid. 

Appellant additionally requested wavier of recovery of the overpayment because he was without 

fault in its creation. 

In a September 13, 2019 Form OWCP-20, appellant indicated that his total household 

monthly income was $5,219.00, which included $2,556.00 in SSA benefits and $2,663.00 in other 

benefits, he did not list his FECA benefit of $3,325.58. He listed his total monthly household 

expenses as $4,432.77, which included $1,032.77 in rent or mortgage, including property tax, 

$1,200.00 in food, $400.00 in clothing, $1,000.00 in utilities, and $800.00 in other expenses. 

Appellant listed his total monthly debts as $2,681.82, which included $100.00 to an online 

payment company, $250.00 to a bank, $145.00 to another bank, $200.00 to the military exchange 

store, $150.00 to a credit card company, $100.00 to another credit card company, $150.00 to a 

clothing company, $100.00 to another clothing company, $150.00 to a car company, $1,000.00 to 

another car company, $103.00 to a funeral home, and $333.82 to a timeshare. He indicated that 

he pays a $1,032.77 monthly mortgage for real estate other than his family home with an 

outstanding principal of $143,750.99. Appellant also listed his total funds as $10,291.60, which 

included $160.00 in cash, $1,760.00 in a checking account, $2,525.00 in a savings account, and 

$5,846.60 in stocks and bonds. 

By decision dated October 18, 2019, OWCP finalized the August 13, 2019 preliminary 

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

$14,852.67 for the period November 1, 2013 through July 20, 2019 because it had failed to offset 

his compensation payments by the portion of his SSA benefits that were attributable to federal 
4

service. It further found that he was without fault in the creation of the overpayment, but denied 

waiver of recovery of the overpayment because the evidence of record failed to establish that 

recovery of an overpayment would defeat the purpose of FECA or would be against equity and 

good conscience. OWCP found that recovery of an overpayment would not defeat the purpose of 

FECA because there was no evidence, which indicated that, after deducting appellant’s ordinary 

and necessary living expenses from his income, he would have $50.00 or less left, and that he did 

not provide a list of assets to determine whether his assets exceed the resource base for an 

individual with a spouse. It found that it would recover the overpayment by deducting $332.56 

every 28 days from his continuing 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 

performance of his or her 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 OWCP’s implementing regulations requires OWCP to reduce the 

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

attributable to the employee’s federal service.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

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $14,852.67 for the period November 1, 2013 through July 20, 

2019 for which he was without fault, as he concurrently received SSA age-related retirement 

benefits and FECA wage-loss compensation without appropriate offset. 

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

SSA age-related retirement benefits attributable to federal service.7 The evidence of record does 

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

 

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

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 

August20, 2018).

6 FECA Bulletin No. 97-09 (issued February 3, 1997); see also E.M., Docket No. 19-0857 (issued December 31, 

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

7

S.M., Docket No. 20-0152 (issued August10, 2020); see also N.B., id.; A.C., Docket No. 18-1550 (issued 

February 21, 2019).
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own federal service during a period of time that he received FECA wage-loss compensation. The 

fact of the overpayment is, therefore, established.

To determine the amount of the overpayment, the portion of the SSA age-related retirement 

benefits that were attributable to federal service must be calculated. OWCP received 

documentation from SSA with respect to the specific amount of SSA age-related retirement 

benefits that were attributable to federal service. SSA provided appellant’s benefit rates with 

FERS and without FERS during the specific period November 1, 2013 through July 20, 2019. 

OWCP provided its calculation for each relevant period based on SSA’s worksheet.

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

period November 1, 2013 through July 20, 2019 and finds that an overpayment of compensation 

in the amount of $14,852.67 has been established.

In an overpayment action request form, received by OWCP on September 17, 2019,

appellant indicated that the amount of the overpayment was in error and he disagreed with the 

amount of the overpayment because he did not apply for SSA benefits until about a year after his 

62nd birthday. Appellant did not, however, submit any evidence substantiating that he did not 

receive SSA age-related retirement benefits as of November 2013. OWCP, therefore, properly 

relied on SSA’s records to determine that the overpayment began in November 2013.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in 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.”

8

 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.9

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.10 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 income (including compensation benefits) to meet current ordinary 

and necessary living expense and, also, if the beneficiary’s assets do not exceed a specified amount 

 

8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.438.

10 Id. at §§ 10.434-10.437.
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determined by OWCP from data provided by the Bureau of Labor Statistics.11 Therefore, for 

waiver of recovery of the overpayment 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.12 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 

$50.00.13

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.14

The evidence of record establishes that appellant’s income exceeds his ordinary expenses 

by more than $50.00.

15

 The Board notes that in listing his income appellant did not include his 

FECA payments, with this adjustment appellant’s total monthly income totaled $8,544.58, while 

his total monthly expenses and debts totaled $7,114.59. Appellant, therefore, did not need 

substantially all of his monthly income to meet current ordinary and necessary living expenses.

The Board also notes that appellant’s listed expenses indicate that he had expenses related to assets, 

such as property, aside from his primary home, which were unreported and undocumented. 

Appellant, therefore, had not established that recovery of the overpayment would defeat the 

purpose of FECA.16 There is also no evidence to support that appellant gave up a valuable right 

or changed his position for the worse, in reliance on his FECA compensation. Appellant, therefore, 

did not establish that recovery of the overpayment was against equity and good conscience.17

 

11 Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her 

current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment 

Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not 

exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus 

$1,200.00 for each additional dependent. Chapter 6.400.4a(2).

12 Id.

13 Id.

14 Id. at § 10.436.

15 Supra note 11.

16 Id.

17 See R.D., Docket No. 19-1598 (issued April17, 2020); R.C.,Docket No. 19-0845 (issued February 3, 2020).
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As appellant failed to establish that recovery of the overpayment of compensation would 

either defeat the purpose of FECA or be against equity and good conscience, the Board finds that 

OWCP properly denied waiver of recovery.18

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.19

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.20

ANALYSIS -- ISSUE 3

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

a rate of recovery of $332.56 each 28 days from appellant’s continuing compensation payments.

The record indicates that appellant’s monthly income exceeds his reported monthly expenses by 

over $1,000.00 per month. OWCP, therefore, did not abuse its discretion in finding that he should 

repay the overpayment at the rate of $332.56 per compensation period.21

CONCLUSION

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

of compensation in the amount of $14,852.67 for which he was without fault, because he 

concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for 

the period November 1, 2013 through July 20, 2019, without an appropriate offset. The Board 

 

18 Id.

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

20 20 C.F.R. § 10.441(a).

21 N.B., supra note 6; N.S.,Docket No. 14-2081 (issued February 12, 2015).
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further finds that OWCP properly denied waiver of recovery of the overpayment, and required 

recovery by deducting $332.56 every 28 days from his continuing compensation payments. 

ORDER

IT IS HEREBY ORDERED THAT the October 18, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 2, 2021

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