United States Department of Labor

Employees’ Compensation Appeals Board

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M.S., Appellant

and

DEPARMENT OF ENERGY, WESTERN 

POWER ADMINISTRATION, Montrose, CO, 

Employer

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Docket No. 20-1261

Issued: June 10, 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 June 5, 2020 appellant filed a timely appeal from a May 27, 2020 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $76,632.68 for which she was without fault 

because she concurrently received FECA wage-loss compensation and Social Security 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence following the May 27, 2020 OWCP decision. 

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.
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Administration (SSA) age-related retirement benefits for the period February 1, 2015 through

March 28, 2020, without an appropriate offset; (2) whether it properly denied waiver of recovery 

of the overpayment; and (3) whether OWCP properly required recovery of the overpayment by 

deducting $1,315.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On December 11, 2009 appellant, then a 56-year-old energy management and marketing 

coordinator, filed a traumatic injury claim (Form CA-1) alleging that on October 5, 2009 she was 

assaulted by a fellow employee while in the performance of duty and sustained depression and 

post-traumatic stress disorder (PTSD). Appellant’s retirement coverage was noted on the form as 

Federal Employees Retirement System (FERS). On April 29, 2010 OWCP accepted the claim for

PTSD and paid appellant compensation on the supplemental rolls, effective February 28, 2010,

and the periodic rolls, effective July 4, 2010.

On February 12, 2020 OWCP forwarded a FERS/SSA dual benefits calculation to SSA to 

determine whether an offset of compensation benefits was required. 

On March 23, 2020 OWCP received from SSA a March 6, 2020 completed FERS/SSA 

dual benefits calculation form, which indicated that appellant had been in receipt of SSA agerelated retirement benefits since February 2015. The form showed SSA benefit rates with and 

without a FERS offset. Beginning February 2015, the SSA rate with FERS was $1,984.40 and 

without FERS was $773.40, beginning December 2015, the SSA rate with FERS was $1,984.40 

and without FERS was $773.40, beginning December 2016, the SSA rate with FERS was 

$1,990.30 and without FERS was $775.70, beginning December 2017, the SSA rate with FERS 

was $2,030.10 and without FERS was $791.20, beginning December 2018, the SSA rate with 

FERS was $2,086.90 and without FERS was $813.30, and beginning December 2019, the SSA 

rate with FERS was $2,120.20 and without FERS was $826.30.

In an April 8, 2020 letter, OWCP informed appellant that it would begin deducting the 

portion of SSA age-related retirement benefits attributable to her federal service from her 28-day 

periodic compensation benefits, effective March 29, 2020. It noted that appellant’s gross SSA 

benefit each month was $2,120.20 and without FERS her SSA benefit was $826.30. OWCP 

explained that the amount of FERS/SSA dual benefits to be deducted from her FECA benefits was,

therefore, $1,293.90 per month, or $1,194.37 every 28 days.

On April 20, 2020 OWCP completed a FERS offset calculation worksheet, determined the 

28-day FERS offset amount for the days in each period, and computed a total overpayment amount 

of $76,632.68. The offset calculation worksheet indicated: from February 1 through 

November 30, 2015, appellant received an overpayment in the amount of $12,096.69; from 

December 1, 2015 through November 30, 2016, she received an overpayment in the amount of 

$14,611.85; from December 1, 2016 through November 30, 2017, she received an overpayment in 

the amount of $14,615.24; from December 1, 2017 through November 30, 2018, she received an 

overpayment in the amount of $14,907.64; from December 1, 2018 through November 30, 2019, 

she received an overpayment in the amount of $15,325.19; and from December 1, 2019 through 

March 28, 2020, she received an overpayment in the amount of $5,076.07. 

OWCP issued a preliminary overpayment determination on April 20, 2020, finding that an 

overpayment of compensation in the amount of $76,632.68 had been created because it had failed 
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to reduce appellant’s wage-loss compensation payments for the period February 1, 2015 through 

March 28, 2020 to offset her SSA age-related retirement benefits that were attributable to federal 

service. It explained that it had reduced her ongoing OWCP benefits for the periodic roll cycle,

effective March 29, 2020. Therefore, OWCP determined that an overpayment occurred for the 

period February 1, 2015 through March 28, 2020. It determined that appellant was without fault 

in the creation of the overpayment. OWCP requested that appellant submit a completed 

overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable repayment 

method and advised appellant that she could request a waiver of the overpayment. It further 

requested that she provide supporting financial documentation, including copies of income tax 

returns, bank account statements, bills, pay slips, and any other records to support income and 

expenses. Additionally, OWCP further notified appellant that, within 30 days of the date of the 

letter, she could request a telephone conference, a final decision based on the written evidence, or 

a prerecoupment hearing. No response was received. 

By decision dated May 27, 2020, OWCP finalized the preliminary overpayment 

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

of $76,632.68 for the period February 1, 2015 through March 28, 2020 because she concurrently 

received SSA age-related retirement benefits and FECA wage-loss compensation benefits without 

an appropriate offset. It also found that she was without fault in the creation of the overpayment, 

but denied waiver of recovery of the overpayment. OWCP noted that as of the date of the decision, 

no response had been received to the preliminary overpayment determination and appellant had 

not requested a waiver. It required recovery of the overpayment by deducting $1,315.00 every 28 

days from appellant’s 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 that OWCP 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 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.6

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018); L.J., 59 ECAB 264 (2007).

6 FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
4

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $76,632.68 for which she was without fault because she 

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

the period February 1, 2015 to March 28, 2020, without an appropriate offset.

The evidence of record indicates that, while appellant was receiving compensation for 

wage loss under FECA, she also was receiving SSA age-related retirement benefits based upon 

her federal service. A claimant cannot receive both compensation for wage loss under FECA and 

SSA age-related retirement benefits attributable to federal service for the same period.7 The 

information provided by SSA established that, during the period February 1, 2015 through

March 28, 2020, appellant received SSA age-related retirement benefits that were attributable to 

federal service while she also received FECA benefits that were not reduced by an appropriate 

offset. Consequently, the fact of overpayment has been established.

To determine the amount of the overpayment, the portion of SSA’s 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 its rate with FERS and without FERS for specific periods from 

February 1, 2015 through March 28, 2020. OWCP provided its calculations for each relevant 

period based on the SSA worksheet which showed that appellant received an overpayment of 

compensation in the amount of $76,632.68. The Board, thus, finds that appellant received 

prohibited dual benefits for the period February 1, 2015 through March 28, 2020, totaling 

$76,632.68.

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.8 

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.9

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 

 

7 20 C.F.R. § 10.421(d); see S.M., supra note 5; L.J., supra note 5.

8 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued 

December 21, 2017).

9 See Robert Atchison, 41 ECAB 83, 87 (1989).
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not exceed a specified amount as determined by OWCP.10 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.11

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.12 Failure to submit the requested information 

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

for waiver shall be considered until the requested information is furnished.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 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 Board finds that appellant has not established that recovery of the overpayment would 

defeat the purpose of FECA because she did not provide a completed Form OWCP-20 and 

documentation supporting her income or expenses. Although OWCP advised appellant to submit 

Form OWCP-20 and documentation substantiating her income and expenses, she failed to do so, 

as required by section 10.438 of OWCP’s regulations.15

OWCP, therefore, did not have the financial information necessary to determine if 

appellant needed substantially all of her current income to meet current ordinary and necessary 

living expenses and, also, if her assets exceeded a specified amount as determined by OWCP.16 

The Board also finds that appellant did not establish that she was entitled to waiver on the basis 

that recovery of the overpayment would be against equity and good conscience.

 

10 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).

11 Id. at § 10.437(a)(b).

12 Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

13 Id. at § 10.438(b).

14 20 C.F.R. § 10.436.

15 See P.B., Docket No. 20-0862 (issued November 25, 2020); R.W., Docket No. 18-1059 (issued February 6, 2019).

16 Supra note 10.
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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.17

Section 10.441(a) of OWCP’s regulations18 provides in pertinent part:

“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.”

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ANALYSIS -- ISSUE 3

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

$1,315.00 every 28 days from appellant’s continuing compensation payments.

OWCP provided appellant a Form OWCP-20 with its April 20, 2020 preliminary 

overpayment determination and afforded her the opportunity to provide appropriate financial 

information and documentation to OWCP.20 Appellant did not complete Form OWCP-20 and 

provide the necessary financial documentation to support her income and expenses prior to the 

May 27, 2020 final overpayment decision. The overpaid individual is responsible for providing 

information about income, expenses, and assets as specified by OWCP.21 When an individual fails 

to provide requested financial information, OWCP shall follow minimum collection guidelines 

designed to collect the debt promptly and in full.22 The Federal (FECA) Procedure Manual 

provides that, in these instances, OWCP should set the rate of repayment at 25 percent of the 28-

day net compensation amount until the balance of the overpayment is paid in full.23 The Board, 

therefore, finds that OWCP properly required recovery of the overpayment from appellant’s 

continuing compensation payments at the rate of $1,315.00 every 28 days.

 

17 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

18 Id. at § 10.441(a).

19 Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

20 20 C.F.R. § 10.438.

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

22 See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) 

Procedure Manual, supra note 10 at Chapter 6.400.3 (September 2018).

23 Supra note 10 at Chapter 6.500.8(c)(1) (September 2018).
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CONCLUSION

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

of compensation in the amount of $76,632.68 for which she was without fault because she 

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

the period February 1, 2015 through March 28, 2020, without an appropriate offset. The Board 

also finds that OWCP properly denied waiver of recovery of the overpayment and properly 

required recovery of the overpayment by deducting $1,315.00 from appellant’s continuing 

compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the May 27, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 10, 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