United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

EAST ORANGE VA MEDICAL CENTER, 

East Orange, NJ, Employer

__________________________________________

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Docket No. 22-0081

Issued: August 22, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 27, 2021 appellant filed a timely appeal from a May 17, 2021 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 $235,858.48, compromised to $183,569.82 for the period January 1, 2003 through 

July 18, 2020, for which she was without fault, because she concurrently received FECA wageloss compensation and Social Security Administration (SSA) age-related retirement benefits 

without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the 

1

5 U.S.C. § 8101 et seq.
2

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

$1,386.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On May 27, 2004 appellant, then a 66-year-old registered nurse, filed an occupational 

disease claim (Form CA-2) alleging that she developed post-traumatic stress disorder (PTSD) and 

major depression due to termination of her employment by the employing establishment. On 

September 22, 2004 OWCP accepted her claim for PTSD. It paid appellant wage-loss 

compensation on the supplemental rolls, effective January 3, 2003 and on the periodic rolls 

effective October 31, 2004. On October 1, 2004 appellant completed a claim for compensation 

(Form CA-7) in which she noted that her retirement system was Federal Employees Retirement 

System (FERS).

On February 27 and July 2, 2020 OWCP forwarded a FERS/SSA dual benefits form to the 

SSA to obtain the information necessary for a determination of whether an offset of compensation 

benefits was required.

On July 13, 2020 OWCP received from SSA a June 24, 2020 FERS/SSA dual benefits 

form, which indicated that appellant had been in receipt of SSA age-related retirement benefits 

since January 2003. The form reported appellant’s SSA age-related retirement benefit rates with 

and without a FERS offset as follows: beginning January 2003, the SSA rate with FERS was 

$1,418.00 and without FERS was $549.00; beginning March 2003, the SSA rate with FERS was 

$1,417.70 and without FERS was $549.70; beginning December 2003, the SSA rate with FERS 

was $1,447.60 and without FERS was $560.60; beginning January 2004, the SSA rate with FERS 

was $1,479.60 and without FERS was $560.60; beginning December 2004, the SSA rate with 

FERS was $1,519.20 and without FERS was $576.20; beginning January 2005, the SSA rate with 

FERS was $1,533.20 and without FERS was $576.20; beginning December 2005, the SSA rate 

with FERS was $1,596.50 and without FERS was $599.50; beginning December 2006, the SSA 

rate with FERS was $1,648.50 and without FERS was $619.50; beginning December 2007, the 

SSA rate with FERS was $1,686.40 and without FERS was $633.40; beginning December 2008, 

the SSA rate with FERS was $1,784.40 and without FERS was $670.40; beginning 

December 2009, the SSA rate with FERS was $1,784.50 and without FERS was $670.50; 

beginning December 2010, the SSA rate with FERS was $1,784.50 and without FERS was 

$670.50; beginning December 2011, the SSA rate with FERS was $1,848.90 and without FERS 

was $683.90; beginning December 2012, the SSA rate with FERS was $1,879.90 and without 

FERS was $705.90; beginning December 2013, the SSA rate with FERS was $1,907.90 and 

without FERS was $716.90; beginning December 2014, the SSA rate with FERS was $1,940.90 

and without FERS was $728.90; beginning December 1, 2015, the SSA rate with FERS was 

$1,940.90 and without FERS was $728.90; beginning December 2016, the SSA rate with FERS 

was $1,946.00 and without FERS was $731.00; beginning December 2017, the SSA rate with 

FERS was $1,985.00 and without FERS was $746.00; beginning December 2018, the SSA rate 

with FERS was $2,040.50 and without FERS was $766.50; and beginning December 2019, the 

SSA rate with FERS was $2,073.60 and without FERS was $778.60. 

OWCP completed a FERS offset overpayment calculation worksheet on August 11, 2020. 

It calculated the overpayment amount by determining the daily FERS offset amount and 
3

multiplying that amount by the number of days in each period from January 3, 2003 through 

November 30, 2018, resulting in an overpayment of $210,666.56 and in each period from 

December 1, 2018 through July 18, 2020, resulting in an overpayment of $25,191.92, for a total 

overpayment of $235,858.48. 

On April 5, 2021 OWCP issued a preliminary overpayment determination, finding that 

appellant had received an overpayment of compensation in the amount of $235,858.48 for the 

period January 1, 2003 through July 18, 2020, for which she was without fault, because her wageloss compensation payments had not been reduced to offset her SSA age -related retirement 

benefits attributable to federal service. It requested that appellant complete an overpayment 

recovery questionnaire (Form OWCP-20) and submit supporting financial documentation to 

determine a reasonable repayment schedule and advised that she could request waiver of recovery. 

OWCP 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, it provided an overpayment action request form and notified 

appellant that, within 30 days of the date of the letter, she could request a final decision based on 

the written record or a prerecoupment hearing.

In an overpayment action request form received on May 4, 2021, appellant requested that 

OWCP requested waiver of recovery because she was without fault in the creation of the 

overpayment. She submitted an undated Form OWCP-20 listing her monthly income of $5,779.02

including $1,952.00 in SSA benefits and $3,827.02 in her FECA benefits. Appellant listed her 

monthly expenses of $1,452.95 for rent, $590.00 for tithing, $700.00 for food, $100.00 for 

clothing, $627.39 for utilities, $1,000.00 for medical care , $936.05 for miscellaneous expenses, 

and $200.00 in monthly credit card expenses, resulting in total monthly expenses of $5,606.39. 

She listed assets of $8,310.51 in a checking account and $8,500.42 in a savings account, resulting 

in total assets of $16,810.93.

By decision dated May 12, 2021, OWCP finalized its preliminary overpayment 

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

of $235,858.48 for the period January 1, 2003 through July 18, 2020, for which she was without 

fault. It denied waiver of recovery of the overpayment, noting that appellant provided no financial 

documentation to support her reported monthly income and expenses. OWCP required recovery 

of the overpayment by deducting $1,386.00 every 28 days from her continuing compensation 

payments. 

On May 17, 2021 OWCPissued an amended final overpayment determination,finding that 

appellant was entitled to a compromise of the debt due to her age and ability to repay the debt. It 

suspended the accrual of interest and fees on her debt and reduced the principle of the debt to

$183,569.82. OWCP again found that appellant was without fault in the creation of the 

overpayment and required recovery of the overpayment by deducting $1,386.00 every 28 days 

from her 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 
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performance of his or her duty.

2

 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.

3

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.

4

 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. 5

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $235,858.48, compromised to $183,569.82 for the period 

January 1, 2003 through July 18, 2020, for which she was without fault, because she concurrently 

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

appropriate offset.

The evidence of record indicates that, while appellant was receiving wage -loss 

compensation benefits 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 

compensation benefits under FECA and SSA age-related retirement benefits attributable to federal 

service for the same period.6 The information provided by SSA establishes that appellant received 

SSA age-related retirement benefits that were attributable to federal service during the period 

January 3, 2003 through July 18, 2020. Consequently, the fact of the overpayment has been 

established.

7

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

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

respect to the specific amounts of SSA age-related retirement benefits that were attributable to 

federal service. SSA provided its age-related retirement benefit rates with FERS and without 

FERS for specific periods from January 3, 2003 through July 18, 2020. OWCP provided its 

overpayment calculations for each relevant period, based on the SSA form, and properly 

2

5 U.S.C. § 8102(a).

3

Id. at § 8116.

4

20 C.F.R. § 10.421(d); G.R., Docket No. 21-0209 (issued December 20, 2021); L.D., Docket No. 21-0447 (issued 

September 28, 2021); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued 

August 20, 2018).

5 FECA Bulletin No. 97-09 (issued February 3, 1997);G.R., id.; N.B., Docket No. 18-0795 (issued January 4, 2019).

6

Id.

7 M.S., Docket No. 20-0068 (issued May 14, 2021); P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., 

Docket No. 19-0845 (issued February 3, 2020); A.F., Docket No. 19-0054 (issued June12, 2019).
5

determined that appellantreceived an overpayment of compensation in the amount of $235,858.48, 

compromised to $183,569.82.

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

amount of $235,858.48, compromised to $183,569.82, for the period January 3, 2003 through 

July 18, 2020.

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

 

Thus, a finding that appellant was without fault does not automatically result in waiver of the 

overpayment. OWCP must then exercise its discretion to determine whether recovery of the 

overpayment would defeat the purpose of FECA or would be against equity and good conscience.9

Section 10.437 of OWCP’s implementing regulations provides that 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 attempting to repay the debt 

and 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.

10

 

Section 10.438 of the implementing 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 on 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.

11

 Failure to submit 

the requested information within 30 days of the request shall result in denial of waiver.

12

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the overpayment.

8

5 U.S.C. § 8129(a)-(b).

9 M.S., supra note 7; L.S., 59 ECAB 350 (2008). 20 C.F.R. § 10.436. OWCP’s procedures provide that the 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. Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Final Overpayment Determinations, Chapter 6.400.4a(3) (September 2020).

10 20 C.F.R. § 10.437;see M.S., id.; E.H., Docket No. 18-1009 (issued January 29, 2019).

11 Id. at § 10.438(a).

12 Id. at § 10.438.
6

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. 13

In its preliminary overpayment determination dated April 5, 2021, OWCP provided a Form 

OWCP-20 and 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, expenses and assets.

Appellant submitted a completed Form OWCP-20 on May 4, 2021; however, she did not 

submit any financial documentation to support her reported monthly income and expense s. As 

appellant did not submit the information required under section 10.438 of OWCP’s regulations, 

which was necessary to determine her eligibility for waiver, OWCP properly denied waiver of 

recovery of the overpayment.14

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.15

Section 10.441(a) of OWCP’s regulations16 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.”

17

Under OWCP’s procedures, the compromise of all or part of the overpayment and any 

charges may be made depending upon the individual claimant’s financial circumstances in order 

to set a repayment schedule. Such a determination is made at the time the repayment schedule is 

13 Id. at § 10.436.

14 M.S., supra note 7; D.C., Docket No. 19-0118 (issued January 15, 2020);see S.B., Docket No. 16-1795 (issued 

March 2, 2017).

15 20 C.F.R. § 10.441; see M.S., id.; M.P., Docket No. 18-0902 (issued October 16, 2018).

16 Id. at 10.441(a).

17 Id.;see M.S., supra note 7; C.M., Docket No. 19-1451 (issued March4, 2020).
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established.

18

 Compromise is a matter which rests in the discretion of OWCP and is not subject 

to review by the Board.

19

ANALYSIS -- ISSUE 3

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

$1,386.00 every 28 days from appellant’s continuing compensation payments.

OWCP gave due regard to the financial information submitted, as well as the factors set 

forth in 20 C.F.R. § 10.441, including the compromised overpayment amount, and found that this 

method of recovery would minimize resulting hardship.20 Therefore, it properly required recovery 

of the overpayment by deducting $1,386.00 every 28 days from appellant’s continuing 

compensation benefits.

CONCLUSION

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

of compensation in the amount of $235,858.48, compromised to $183,569.82, for the period 

January 1, 2003 through July 18, 2020, for which she was without fault, because she concurrently 

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

appropriate offset; and that OWCP properly denied waiver of recovery of the overpayment. The 

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

$1,386.00 from her continuing compensation payments every 28 days.

18 Supra note 9 at Chapter 6.100.6 (September 2020).

19 Id.

20 M.S., supra note 7;M.B., Docket No. 20-1578 (issued March 25, 2021).
8

ORDER

IT IS HEREBY ORDERED THAT the May 17, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 22, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board