United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.R., Appellant

and

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, TONGASS NATIONAL FOREST, 

Ketchikan, AK, Employer

__________________________________________

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Docket No. 20-1622

Issued: June 30, 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 September 10, 2020 appellant filed a timely appeal from an August 5, 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 to consider the merits of this case.

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $8,150.72 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 March 1, 2016 through March 28, 2020, 

without an appropriate offset; (2) whether it 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 

$51.25 every 28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On September 18, 2003 appellant then a 53-year-old firefighter, filed a traumatic injury 

claim (Form CA-1) alleging that on August 26, 2003 while he was walking down a steep grade he 

injured his left knee while in the performance of duty. OWCP accepted his claim for sprain/strain 

medial collateral ligament of the left knee. It paid appellant wage-loss compensation on the 

supplemental rolls from April 1 through August 27, 2011, and on the periodic rolls effective 

August 28, 2011. As of June 2, 2013 OWCP paid appellant wage-loss compensation pursuant to 

a loss of wage-earning capacity determination dated May 7, 2013, based on the constructed 

position of a bus driver. 

On March 12, 2012 OWCP informed appellant that section 8116(d)(2) of FECA (5 U.S.C. 

§ 8116(d)(2)) requires that a claimant’s continuing compensation benefits be reduced if he begins 

receiving SSA retirement benefits based on his age and federal service. It advised that because he

was approaching his 62nd birthday they were notifying him of this requirement. OWCP further 

advised that failure to report receipt of retirement benefits to OWCP could result in an 

overpayment of compensation, which could be subject to recovery.

On November 25, 2012 appellant elected to receive FECA benefits effective 

November 17, 2012.

On August 20, 2014 OWCP sent a Federal Employees Retirement System (FERS)/SSA 

dual benefits calculation form to SSA.

In a letter dated March 2, 2015, appellant informed OWCP that he was presently receiving 

regular SSA age-related retirement benefits in addition to his FECA wage-loss compensation

benefits. He asserted that there was no place to report this information on the CA-1032 forms. 

From 2013 through 2014 appellant received regular retirement social security income of $591.00 

a month and on January 1, 2015, it increased to $603.00 a month. SSA informed him that because 

he was turning 65 years of age this month he was eligible to collect Social Security Disability 

Income of $833.00 a month without it being affected by his OWCP income. Appellant reported 

that there would be no more “offset.” 

On February 24, 2020 OWCP sent a FERS/SSA dual benefits calculation form to SSA for 

its completion.

OWCP received a completed FERS/SSA dual benefits calculation form from SSA dated 

March 9, 2020 on which SSA advised that, effective March 2016, appellant reached normal 

retirement age and became eligible for SSA age-related retirement benefits. It noted that, since 

his retirement coverage was under FERS, his compensation benefits must be offset by any part of 

his SSA benefit that was calculated by using his federal employment earnings. SSA calculated 

appellant’s SSA age-related retirement benefit rates with a FERS offset and without a FERS offset 

from March 2016 through December 2019. Beginning March 2016, the SSA rate with FERS was 

$961.80 and without FERS was $799.70. Beginning December 2016, the SSA rate with FERS 
3

was $964.60 and without FERS was $802.00. Beginning December 2017, the SSA rate with FERS 

was $983.80 and without FERS was $818.00. Beginning December 2018, the SSA rate with FERS 

was $1,011.30 and without FERS was $840.90. Beginning December 2019, the SSA rate with 

FERS was $1,027.40 and without FERS was $854.30. 

On April 13, 2020 OWCP prepared a fiscal pay rate memorandum wherein it noted the 

calculation of appellant’s SSA offset overpayment from March 1, 2016 through March 28, 2020

and computed a total overpayment amount of $8,150.72. This form indicated: from March 1 

through November 30, 2016 appellant received an overpayment in the amount of $1,469.59; from 

December 1, 2016 through November 30, 2017 appellant received an overpayment in the amount 

of $1,956.56; from December 1, 2017 through November 30, 2018 appellant received an 

overpayment in the amount of $1,995.07; from December 1, 2018 through November 30, 2019

appellant received an overpayment in the amount of $2,050.42; and December 1, 2019 through 

March 28, 2020 appellant received an overpayment in the amount of $679.08. 

On April 13, 2020 OWCP issued a preliminary overpayment determination, finding that 

an overpayment of compensation in the amount of $8,150.72 had been created because appellant 

received SSA age-related retirement benefits from March 1, 2016 through March 28, 2020 that 

were partially based on credits earned while working in the Federal Government, which constituted 

a prohibited dual benefit. 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 and canceled checks, pay slips, and any other records which support income and 

expenses. Additionally, OWCP further provided an overpayment action request form and 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 June 7, 2020 appellant completed an overpayment action request form and requested

that OWCP make a decision based on the written evidence. He explained that he cooperated with 

the employing establishment, OWCP, and SSA and was honest and forthright in providing 

information from the date of injury to the present time. Appellant indicated that OWCP and SSA 

“messed” this up and he was claiming financial hardship as he was 70 years old and had high blood 

pressure and was prediabetic. 

On a Form OWCP-20 completed on June 7, 2020, appellant reported that his total monthly 

income included $882.00 from SSA, FECA benefits of $884.22, and mineral royalties of $38.94,

resulting in total monthly income of $1,805.16. He reported expenses totaling $1,638.50. 

Appellant indicated monthly expenses of $553.51 for rent/mortgage, $200.00 for food, $25.00 for 

clothing, $270.59 for utilities, and $300.00 for other expenses. Appellant also noted other debts 

paid by monthly installments including various credit card payments totaling $180.00 and, a roof 

mortgage of $57.44, auto insurance of $20.16, insulation financing of $31.80 for total monthly 

installment expense of $289.40. Appellant further noted cash on hand of $17.00, a checking 
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account balance of $92.29, and savings account balance of $1,707.36. He attached financial 

information including a 2019 federal tax return, bank statements, utility bills, and credit card bills.2 

By decision dated August 5, 2020, OWCP finalized the preliminary overpayment 

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

of $8,150.72 for the period March 1, 2016 through March 28, 2020, because it failed to offset his 

compensation payments by the portion of his SSA age-related retirement benefits that were 

attributable to his federal 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 be against 

equity and good conscience. OWCP required recovery of the overpayment by deducting $51.25

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.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 states that FECA 

benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA 

age-related retirement benefits 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 $8,150.72 for which he was without fault, because he 

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

the period March 1, 2016 through March 28, 2020, without an appropriate offset.

The record supports that appellant received FECA wage-loss compensation for total 

disability on the supplemental rolls beginning April 1 through August 27, 2011, the periodic rolls 

 

2 On September 16, 2020 OWCP expanded the acceptance of appellant’s claim to include permanent aggravation 

of left knee osteoarthritis.

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).

6 FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
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effective August 28, 2011, and effective June 2, 2013 pursuant to a loss of wage-earning capacity 

determination dated May 7, 2013, and that he received SSA age-related retirement benefits 

beginning March 1, 2016. The information provided by SSA established that appellant had 

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

commencing March 1, 2016. Thus, the record establishes that he received an overpayment of 

FECA wage-loss compensation.7

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 appellant’s specific SSA age-related retirement benefits 

that were attributable to federal service. SSA provided its rate with FERS and without FERS for 

specific periods March 1, 2016 through March 28, 2020. OWCP provided its calculations for each 

relevant period based on SSA’s worksheet and determined that he received an overpayment in the 

amount of $8,150.72. The Board, thus, finds that appellant received prohibited dual benefits for 

the period March 1, 2016 through March 28, 2020 totaling $8,150.72.

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the 

United States may not be made when incorrect payment has been made to an individual who is 

without fault and when adjustment or recovery would defeat the purpose of this subchapter or 

would be against equity and good conscience.”

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Recovery of an overpayment will defeat the purpose of FECA when 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 

not exceed a specified amount as determined by OWCP.9 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 $50.00.10 Also, 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.11 An individual’s liquid assets 

 

7

Id.

8 5 U.S.C. § 8129(b).

9 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 2020). 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).

10 Id. at Chapter 6.400.4(a)(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued 

January 10, 2020).

11 Id. at Chapter 6.400.4(a)(2) (September 2020).
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include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and 

certificate of deposits.12

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.13

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.14

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.15

Evidence in the case record shows that appellant has income totaling $1,805.16. Form 

OWCP-20 listed expenses of $553.51 for rent/mortgage, $200.00 for food, $25.00 for clothing, 

$270.59 for utilities, and $300.00 for other expenses. Appellant also noted other debts paid by 

monthly installments including $180.00 in various credit card payments, roof mortgage of $57.44, 

auto insurance of $20.16, insulation financing of $31.80 for total monthly installment expense of 

$289.40 and total expenses of $1,638.50.

Based upon the information provided on the Form OWCP-20, and evidence received, 

appellant’s household income totaled $1,805.16 while his expenses totaled $1,638.50. As his 

monthly income exceeds his monthly expenses by $166.66, appellant does not need substantially 

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

The Board further finds that appellant has not established that recovery of the overpayment 

would be against equity and good conscience because it has not been shown, for the reasons noted 

above, that he would experience severe financial hardship in attempting to repay the debt, or that 

a valuable right had been relinquished, or that a position had been changed for the worse in reliance 

 

12 Id. at Chapter 6.400.4(b)(3).

13 20 C.F.R. § 10.437(a)(b).

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

15 5 U.S.C. § 8129.
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on the payment, which created the overpayment.16 Therefore, OWCP properly denied waiver of 

recovery of the overpayment.

Because it has not been established that, recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not 

abused its discretion by denying waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations 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 the 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

ANALYSIS -- ISSUE 2

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

$51.25 every 28 days from appellant’s continuing compensation payments.

In determining whether appellant could repay the overpayment through $51.25 deductions 

from continuing compensation payments, OWCP took into account his financial information as 

well as factors set forth in 20 C.F.R. § 10.441 and found that this method of recovery would 

minimize any resulting hardship, not necessarily eliminate it, while at the same time liquidating 

the debt in a reasonably prompt fashion.18 The Board finds that OWCP gave due regard to the 

financial information provided and found that his monthly income exceeded monthly expenses by 

$166.66. The Board, therefore, finds that OWCP properly required recovery of the overpayment 

by deducting $51.25 every 28 days from appellant’s compensation payments.

On appeal appellant asserts that he needs substantially all of his monthly income to meet 

ordinary and necessary living expenses. As explained, however, OWCP took into account his 

financial information as well as factors set forth in 20 C.F.R. § 10.441 and found that this method 

of recovery would minimize any resulting hardship, not necessarily eliminate it, while at the same 

time liquidating the debt in a reasonably prompt fashion. 

 

16 L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

17 20 C.F.R. § 10.441(a); A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056, 

1062 (1988).

18 See L.F., Docket No. 15-0489 (issued May 11, 2015) (the Board affirmed an OWCP hearing representative’s 

denial of waiver of recovery of an overpayment because appellant and his spouse had over $17,000.00 in their savings 

account, and as such his assets exceeded the specified resource base).
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CONCLUSION

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

of compensation in the amount of $8,150.72 for which he was without fault, because he 

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

benefits for the period March 1, 2016 through March 28, 2020, 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 $51.25 every 28 days from his 

continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the August 5, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 30, 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