United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, CHATTAHOOCHEE OCONEE 

NATIONAL FOREST, Gainesville, GA, 

Employer

__________________________________________

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Docket No. 21-0772

Issued: November 30, 2021

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 April 23, 2021 appellant filed a timely appeal from a November 3, 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.

ISSUES

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

amount of $47,136.84, for which she was without fault, because she concurrently received FECA 

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

without appropriate offset for the period May 1, 2013 to August 15, 2020; (2) whether OWCP 

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

1

5 U.S.C. § 8101 et seq.
2

recovery of the overpayment by deducting $400.00 every 28 days from appellant’s continuing 

compensation payments.

FACTUAL HISTORY

On April 20, 2002 appellant, then a 54-year-old accounting technician, filed an 

occupational disease claim (Form CA-2) for acute stress disorder resulting from factors of her 

federal employment. She stopped work on February 21, 2002. On June 18, 2004 OWCP accepted 

acute stress disorder. It paid appellant wage-loss compensation on the supplemental rolls for 

disability from work commencing April 8, 2003 and on the supplemental rolls commencing 

April 1, 2005.

On July 18, 2020 SSA forwarded a completed Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form to OWCP. The form indicated that beginning in 

May 2013 appellant’s SSA rate with FERS was $1,372.70 and without FERS was $862.60,

beginning in December 2013 her SSA rate with FERS was $1,393.20 and without FERS was 

$875.50; beginning in December 2014 her SSA rate with FERS was $1,416.80 and without FERS 

was $890.30; beginning in December 2015 her SSA rate with FERS was $1,416.80 and without 

FERS was $890.30; beginning in December 2016 her SSA with FERS was $1,421.00 and without 

FERS was $892.90; beginning in December 2017 her SSA with FERS was $1,449.40 and without 

FERS was $910.70; beginning in December 2018 her SSA with FERS was $1,489.90 and without 

FERS was $936.10; and beginning in December 2019 her SSA with FERS was $1,513.70 and 

without FERS was $951.00. 

In a September 3, 2020 letter, OWCP notified appellant that, based on information 

provided by SSA regarding the amount of her age-related retirement benefits which were partially 

attributable to federal service, her FECA wage-loss compensation would be offset by the portion 

of her SSA age-related retirement benefits attributable to her federal service. 

In a preliminary determinationof even date, OWCP notified appellant that she had received 

an overpayment of compensation in the amount of $47,136.84 because her wage-loss 

compensation benefits had not been reduced for the period May 1, 2013 through August 15, 2020 

by the portion of her SSA benefits that were attributable to her federal service. It calculated the 

overpayment amount by determining the difference between her SSA amount with and without 

FERS for the stated period and adding this amount to find a total overpayment of $47,136.84. 

OWCP further advised appellant of its preliminary determination that she was without fault in the 

creation of the overpayment and requested that she complete an overpayment action request form 

and an overpayment recovery questionnaire (Form OWCP-20), and submit supporting financial 

documentation. Additionally, it notified her that, she could request a telephone conference, a final 

decision based on the written evidence, or a prerecoupment hearing. OWCP allotted 30 days for 

appellant to respond. 

On September 26, 2020 appellant requested waiver of recovery of the $47,136.84 

overpayment. 

By decision dated November 3, 2020, OWCP finalized the preliminary determination that 

appellant had received an overpayment of compensation in the amount of $47,136.84 for the period 
3

May 1, 2013 through August 15, 2020, for which she was without fault, because her FECA wageloss compensation payments were not offset by the portion of her SSA age-related retirement 

benefits attributable to her federal service. It found that she was without fault in the creation of 

the overpayment, but denied waiver of recovery because the evidence of record did no t establish 

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

conscience. OWCP required recovery of the overpayment by deducting $400.00 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 duty.2 However, section 8116 also 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 When an overpayment has been made 

to an individual because of an error of fact or law, adjustment shall be made under regulations 

prescribed by the Secretary of Labor by decreasing later payments to which the individual is 

entitled.4

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

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

the employee.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

ANALYSIS -- ISSUE 1

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

$47,136.84, for which she was without fault, because she concurrently received FECA wage -loss 

compensation and SSA age-related retirement benefits without appropriate offset for the period 

May 1, 2013 to August 15, 2020.

In its November 3, 2020 decision, OWCP found that an overpayment of compensation was 

created for the period May 1, 2013 to August 15, 2020. The overpayment was based on the 

evidence received from SSA with respect to retirement benefits paid to appellant. As noted, a 

claimant cannot receive both compensation for wage loss and SSA age-related retirement benefits 

2

Id. § 8102(a).

3

Id. at § 8116.

4

Id. at § 8129(a).

5

20 C.F.R. § 10.421(d); see R.R.,Docket No. 19-0104 (issued March9, 2020); T.B., Docket No. 18-1449 (issued 

March 19, 2019); L.J., 59 ECAB 264 (2007).

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

attributable to federal service for the same period.7 The information provided by SSA established 

that appellant received SSA age-related retirement benefits that were attributable to federal service 

beginning May 1, 2013. OWCP, however, neglected to offset her FECA benefits until 

August 15, 2020. Accordingly, the Board finds that OWCP properly determined that appellant 

received an overpayment of wage-loss compensation for the period May 1, 2013 to 

August 15, 2020. 

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. The SSA provided appellant’s SSA benefit rates 

with FERS and without FERS for the period May 1, 2013 to August 15, 2020. OWCP provided 

its calculations of the amount that it should have offset during the relevant period based on the 

SSA worksheet. 

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

period May 1, 2013 to August 15, 2020 and finds that an overpayment of compensation in the 

amount of $47,136.84 was created.8

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. 9

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. The 

information is also used to determine the repayment schedule, if necessary. 10

ANALYSIS -- ISSUE 2

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

7

5 U.S.C. § 8116(d)(2); see W.C., Docket No. 20-1241 (issued February9, 2021); R.D., Docket No. 19-1598

(issued April 17, 2020); C.M., Docket No. 19-1451 (issued March 4, 2020); L.W., Docket No. 19-0787 (issued 

October 23, 2019); J.T., Docket No. 18-1791 (issued May 17, 2019).

8

See W.C., id.; M.S., Docket No. 18-0740 (issued February 4, 2019); D.C., Docket No. 17-0559 (issued 

June 21, 2018).

9

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).

10 20 C.F.R. § 10.438(a); R.G., Docket No. 21-0148 (issued June 7, 2021); M.S., Docket No. 18-0740 (issued 

February4, 2019).
5

The fact that a claimant is without fault in the creation of an overpayment does not preclude 

OWCP from recovering the overpayment.11 Waiver is only possible if recovery would defeat the 

purpose of FECA or be against equity and good conscience.12 Appellant, however, did not provide 

the requested financial documentation to OWCP.13

In its preliminary overpayment determination dated September 3, 2020, OWCP explained 

the importance of providing the completed Form OWCP-20 and supporting financial 

documentation. It advised appellant that it would deny waiver of recovery if she failed to furnish 

the requested financial information within 30 days. On September 26, 2020 appellant submitted 

the overpayment action request form. However, no additional evidence was received prior to 

OWCP’s November 3, 2020 final overpayment determination. OWCP, therefore, did not have the 

necessary financial information to determine whether waiver of recovery of the overpayment 

would defeat the purpose of FECA or would be against equity and good conscience within 30 days 

of the preliminary overpayment determination.14 It was, therefore, required to deny waiver of 

recovery of the overpayment.15

For the foregoing reasons, the Board finds that OWCP properly denied waiver of recovery 

of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

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 facts, so 

as to minimize any hardship.16

ANALYSIS -- ISSUE 3

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

$400.00 from appellant’s continuing compensation payments every 28 days.

11 See M.W., Docket No. 20-1107 (issued March17, 2021); L.M., Docket No. 19-1197 (issued January 8, 2020); 

M.D., Docket No. 19-1500 (issued February 24, 2020); L.D., Docket No. 19-0606 (issued November 21, 2019); R.B., 

Docket No. 15-0808 (issued October 26, 2015).

12 20 C.F.R § 10.436; J.C., Docket No. 19-0122 (issued June 11, 2019).

13 Id. at § 10.438(b); T.J., Docket No. 19-1242 (issued January 13, 2020).

14 See R.G., supra note 10; D.B., Docket No. 20-0592 (issued September 21, 2020); R.M., Docket No. 19-1570 

(issued June 1, 2020); E.M., Docket No. 19-0857 (issued December 31, 2019); G.G., Docket No. 19-0684 (issued 

December 23, 2019).

15 Supra note 12.

16 20 C.F.R. § 10.441(a). See also L.B., Docket No. 11-2076 (issued August29, 2012); G.B., Docket No. 11-1568 

(issued February 15, 2012).
6

OWCP provided a Form OWCP-20 to appellant with the September 3, 2020 preliminary 

overpayment determination. Appellant did not complete the Form OWCP-20 or provide any 

financial information to support that she was financially unable to repay the debt prior to the final 

November 3, 2020 overpayment decision. The overpaid individual is responsible for providing 

information about income, expenses, and assets as specified by OWCP. 17 When an individual fails 

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

designed to collect the debt promptly and in full.18 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. 19 Further, the

Board has held that OWCP may properly collect an overpayment from the amount of 

compensation owed a claimant through a schedule award.20 While appellant did not submit the 

financial information requested, the record reflects that her continuing 28-day compensation as of 

August 16, 2020 was $1,922.76. Therefore, deducting $400.00 every 28 days from her continuing 

compensation does not exceed the 25 percent repayment rate.21

As appellant did not submit the financial documentation to OWCP as requested, the Board 

finds that there is no evidence of record to establish that OWCP erred in directing recovery of the 

$47,136.84 overpayment at the rate of $400.00 every 28 days from her continuing compensation 

payments.

CONCLUSION

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

$47,136.84, for which she was without fault, because she concurrently received FECA wage -loss 

compensation and SSA age-related retirement benefits without an appropriate offset for the period 

May 1, 2013 to August 15, 2020. The Board further finds that OWCP properly denied waiver of 

recovery of the overpayment and properly required recovery of the overpayment by deducting 

$400.00 every 28 days from her continuing compensation payments.

17 Id. at § 10.438. See also A.F., Docket No. 19-0054 (issued June12, 2019).

18 See R.G., supra note 10; J.A., Docket No. 19-1946 (issued July 13, 2020); A.S., Docket No. 19-0171 (issued 

June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Final Overpayment Determinations, Chapter 6.400.3 (September 2018).

19 Id. at Chapter 6.500.8(c)(1) (September 2018).

20 W.L., Docket No. 16-0037 (issued June 23, 2016); M.O., Docket No. 14-1133 (issued September 22, 2014).

21 D.B., supra note 14; E.M., supra note 14.
7

ORDER

IT IS HEREBY ORDERED THAT the November 3, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 30, 2021

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