United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.A., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, San Diego, CA, 

Employer

__________________________________________

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Docket No. 20-1311

Issued: January 26, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On June 22, 2020 appellant filed a timely appeal from a January 14, 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 appellant received an overpayment of compensation in the 

amount of $113,311.83 for the period July 1, 2008 through November 9, 2019, for which he was 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the January 14, 2020 decision, appellant submitted additional evidence to OWCP 

and on appeal to the Board. 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

without fault, because he concurrently received Social Security Administration (SSA) age-related 

retirement benefits and FECA wage-loss compensation for this period without an appropriate 

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

(3) whether OWCP properly required recovery of the overpayment by deducting $514.00 from 

appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On August 1, 2002 appellant, then a 59-year-old mail handler, filed an occupational disease 

claim (Form CA-2) alleging that he sustained a perforated right ear drum, with intermittent 

bleeding, due to the lifting duties of his federal employment. He had stopped work on 

January 31, 2002. OWCP accepted appellant’s claim for permanent aggravation of preexisting 

chronic otitis media and fistula formation of the right ear. It paid him wage-loss compensation for 

disability from work on the supplemental rolls commencing October 15, 2002 and on the periodic 

rolls commencing August 10, 2003.3

In July 2008, appellant retired from the employing establishment under the Federal 

Employees Retirement System (FERS).

On November 4, 2019 OWCP received a completed FERS/SSA dual benefits form 

completed by SSA on October 30, 2019. SSA indicated that appellant received SSA age-related

retirement benefits that were attributable to federal service commencing July 1, 2008.

4

 SSA 

provided age-related retirement benefit rates with FERS, and without FERS, for specific periods 

commencing in July 1, 2008. Beginning July 1, 2008, the SSA rate with FERS was $1,298.00 and 

without FERS was $557.30. Beginning December 1, 2008 the SSA rate with FERS was $1,373.20 

and without FERS was $589.60. Beginning December 1, 2011 the SSA rate with FERS was 

$1,422.60 and without FERS was $610.80. Beginning December 1, 2012 the SSA rate with FERS 

was $1,446.70 and without FERS was $621.10. Beginning December 1, 2013 the SSA rate with 

FERS was $1,468.40 and without FERS was$630.40. Beginning December 1, 2014 the SSA rate 

with FERS was $1,493.30 and without FERS was $641.10. BeginningDecember 1, 2016 the SSA 

rate with FERS was $1,497.70 and without FERS was $643.00. Beginning December 1, 2017 the 

SSA rate with FERS was $1,527.60and without FERS was $655.80. BeginningDecember 1, 2018 

the SSA rate with FERS was $1,570.30 and without FERS was $674.10.

In a letter dated November 14, 2019, OWCP informed appellant that it would begin 

deducting the portion of his SSA age-related retirement benefits attributable to his federal service 

from his 28-day periodic compensation beginning November 10, 2019.

In a November 14, 2019 FERS offset overpayment calculation based on the benefit rates 

provided by SSA, OWCP calculated a $113,311.83 overpayment of compensation for the period 

July 1, 2008 through November 9, 2019.

3 On February 19, 2003 appellant underwent OWCP authorized middle ear exploration surgery.

4

It was noted that appellant had received FECA disability benefits through June2008.
3

On November 15, 2019 OWCP issued a preliminary overpayment determination, finding

that appellant received an overpayment of compensation in the amount of $113,311.83 had been 

created because it failed to reduce his wage-loss compensation payments for the period July 1, 

2008 through November 9, 2019 to offset his SSA age-related retirement benefits that were 

attributable to federal service. It determined that he 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 payment method, and advised him that 

he could request waiver of recovery of the overpayment. It further 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 income and expenses. Additionally, 

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.

On December 10, 2019 OWCP received appellant’s overpayment action request form in 

which he contended that an overpayment had not occurred and requestedwaiver of recovery of the 

claimed overpayment. Appellant requested that OWCP make a decision on the record regarding 

the claimed overpayment. He submitted an overpayment recovery questionnaire, completed on 

December 10, 2019, in which he listed monthly income of $8,184.00 (comprised of $1,434.00 in 

SSA benefits and $6,750.00 in Veterans Administration and FECA benefits) and monthly expenses 

of $6,718.00 (comprised of $2,250.00 for mortgage/rent, $1,200.00 for food, $100.00 for clothing, 

$1,244.00 for utilities, $411.00 for loan payments, and $1,513.00 for miscellaneous expenses). 

Appellant indicated that he had $62,720.00 in assets in a savings account.

5

 He also listed assets 

of $2,437.00 in a checking account and $120.00 in cash in hand.

On January 14, 2020 OWCP held a telephone conference with appellant regarding his 

monthly income and expenses. During the conference, appellant reported monthly income of 

$8,398.96 (comprised of $1,434.00 in SSA benefits, $4,177.00 in Veterans Administration

benefits, and $2,787.96 in FECA benefits) and monthly expenses of expenses of $6,324.00 

(comprised of $2,250.00 for mortgage/rent, $1,200.00 for food, $100.00 for clothing, $1,244.00 

for utilities, and $1,530.00 for miscellaneous expenses).

By decision dated January 14, 2020, OWCP finalized the preliminary overpayment 

determination, finding that appellant had received an overpayment in the amount of $113,311.83 

for the period July 1, 2008 through November 9, 2019 because he concurrently received SSA agerelated retirement benefits FECA wage-loss compensation without an appropriate offset. It also 

found that he was without fault in the creation of the overpayment, but denied waiver of recovery 

of the overpayment. OWCP determined that the overpayment was not subject to waiver because 

appellant’s assets clearly exceeded his allowable resource base and, therefore, he would not 

experience financial hardship in repaying overpayment. It also indicated that, during the 

January 14, 2020 telephone conference, he reported monthly income of $8,398.96,

6 and monthly 

expenses of expenses of $6,324.00, noting that he had not submitted supporting documentation. 

5 Appellant noted that these savings account assets came from “loan equity” obtained in August 2019, which he 

intended to use to construct a two-bedroom home addition for rental purposes. 

6 OWCP inadvertently referenced the $8,184.00 figure that appellant had listed on his December 10, 2019

overpayment recovery questionnaire, rather than the updated figure of $8,398.96 provided on January 14, 2020.
4

OWCP required recovery of the overpayment by deducting $514.00 from appellant’s continuing 

compensation payments every 28 days.

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.7 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.8

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.9 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. 10

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $113,311.83, for which he was without fault, because he 

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

the period July 1, 2008 through November 9, 2019, without an appropriate offset.

Commencing October 15, 2002 OWCP paid appellant wage-loss compensation for total 

disability due to his accepted injury. Commencing July 1, 2008 appellant received SSA agerelated retirement benefits. As noted, a claimant cannot receive compensation for wage-loss 

compensation and SSA retirement benefits attributable to federal service for the same period. 11 

The information provided by SSA indicated that a portion of appellant’s SSA age-related 

retirement benefits were attributable to his federal service. As OWCP neglected to offset his FECA 

wage-loss compensation benefits for the period July 1, 2008 through November 9, 2019, the Board 

finds that the fact and period of the overpayment have been established.12

Based on the rates provided by SSA, OWCP calculated the overpayment of compensation 

by determining the portion of SSA age-related retirement benefits that were attributable to 

appellant’s federal service. It received documentation from SSA with respect to the specific 

7

5 U.S.C. § 8102.

8

Id. at § 8116.

9

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August20, 2018).

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

11 See id.; A.C., Docket No. 18-1550 (issued February 21, 2019).

12 Id.
5

amount of SSA age-related retirement benefits that were attributable to federal service. SSA 

provided appellant’s SSA rate with FERS and without FERS for specific periods commencing

July 1, 2008. OWCP provided its calculations outlined in a FERS offset calculation worksheet 

regarding the amount that it should have offset for each relevant period based on the SSA 

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

that appellant received prohibited dual benefits totaling $113,311.83, thereby creating an 

overpayment of compensation in that amount.13

LEGAL PRECEDENT -- ISSUE 2

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.14 Section 8129 of FECA15

provides that an overpayment must be recovered 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.” Thus, a finding that appellant was 

without fault does not automatically result in waiver of recovery 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. 16

According to 20 C.F.R. § 10.436, 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 

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.17 An individual’s liquid assets 

include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual 

funds, and certificates 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, furnishings/supplies, 

vehicle(s) above the two allowed per immediate family, retirement account balances (such as 

Thrift Savings Plan or 401 (k)), jewelry, and artwork.18

According to 20 C.F.R. § 10.437 recovery of an overpayment is considered to be against 

equity and good conscience when an individual who received an overpayment would experience 

13 See A.S., Docket No. 19-0171 (issued June 12, 2019).

14 See L.D., Docket No. 18-1317 (issued April17, 2019); P.J., Docket No. 18-0248 (issued August 14, 2018); 

Robert Atchison, 41 ECAB 83, 87 (1989).

15 5 U.S.C. § 8129(1)-(b); A.C., supra note 12; see D.C.,Docket No. 17-0559 (issued June21, 2018).

16 A.C., id.; see V.T.,Docket No. 18-0628 (issued October 25, 2018).

17 20 C.F.R. § 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. Id. at Chapter 6.400.4a(2).

18 Id. at Chapter 6.400.4b(3)(a), (b).
6

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.19 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 on the payments or on the notice of payment.20

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 

of recovery of the overpayment.21

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. 22

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

of FECA because he has not shown both that he needs substantially all of his current income to 

meet ordinary and necessary living expenses and that his assets do not exceed the allowable 

resource base. As appellant has assets of $65,277.00, his assets well exceed the allowable resource 

base of a claimant, like himself, who has a spouse and another dependent, i.e., $11,500.00.

23

 

Because he 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 unnecessary for OWCP to consider the first

prong of the test, i.e., whether he needs substantially all of his current income to meet ordinary and 

necessary living expenses.

The Board also finds that appellant has not established that he was entitled to waiver on 

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

he has not shown, for the reasons noted above, that he would experience severe financial hardship 

in attempting to repay the debt or that he relinquished a valuable right or changed his position for 

the worse in reliance on the payment which created the overpayment. 24

19 20 C.F.R. § 10.437(a), (b).

20 Id. at § 10.437(b)(1).

21 20 C.F.R. § 10.438.

22 Id. at § 10.436.

23 See supra note 19.

24 See L.D., Docket No. 18-1317 (issued April17, 2019); WilliamJ. Murphy, 41 ECAB 569, 571-72(1989).
7

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

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.25 Section 10.441 

of Title 20 of the Code of Federal Regulations provides that if an overpayment of compensation 

has been made to one entitled to future payments, proper adjustment shall be made by decreasing 

subsequent 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.”

26

 When an individual fails to provide the 

requested information on income, expenses and assets, OWCP should follow minimum collection 

guidelines, which state in general that government claims should be collected in full and that, if an 

installment plan is accepted, the installments should be large enough to collect the debt promptly. 27

ANALYSIS -- ISSUE 3

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

$514.00 from appellant’s continuing compensation payments every 28 days.

The record supports that, in requiring recovery of the overpayment by deducting $514.00 

from appellant’s continuing compensation payments every 28 days, OWCP took into consideration 

the financial information submitted by appellant as well as the factors set forth in section 10.441 

and found that this method of recovery would minimize any resulting hardship on appellant. 

OWCP followed minimum collection guidelines by requiring installments large enough to collect 

the full debt promptly. The Board, therefore, finds that OWCP properly required recovery of the 

overpayment by deducting $514.00 from appellant’s continuing compensation payments every 28 

days.

CONCLUSION

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

$113,311.83, for which he was without fault, because he concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation for the period July 1, 2008 through 

November 9, 2019, without an appropriate offset. The Board further finds that OWCP properly 

denied waiver of recovery of the overpayment, and properly required recovery of the overpayment 

by deducting $514.00 every 28 days from his continuing compensation payments.

25 R.W., Docket No. 19-0451 (issued August7, 2019); C.A., Docket No. 18-1284 (issued April15, 2019); Albert 

Pinero, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51 ECAB 295 (2000).

26 20 C.F.R. § 10.441; see A.F., Docket No. 19-0054 (issued June12, 2019); Donald R. Schueler, 39 ECAB 1056, 

1062 (1988).

27 R.O., Docket No. 18-0076 (issued August 3, 2018); GailM. Roe, 47 ECAB 268 (1995).
8

ORDER

IT IS HEREBY ORDERED THAT the January 14, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 26, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board