United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.E., Appellant

and

DEPARTMENT OF VETERAN AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, New Orleans, LA, Employer

__________________________________________

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Docket No. 21-0777

Issued: November 15, 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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 17, 2021 appellant filed a timely appeal from a December 17, 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 $13,150.41, for which she was without fault, because she concurrently received FECA 

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

without an appropriate offset for the period November 1, 2016 through August 15, 2020; 

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

1

5 U.S.C. § 8101 et seq.
2

OWCP properly required recovery of the overpayment by deducting $468.19 every 28 days from 

appellant’s continuing compensation payments.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.

2

 The facts and 

circumstances of the case as set forth in the Board’s prior decision are incorporated herein by 

reference. The relevant facts are as follows.

On May 6, 1998 appellant, then a 44-year-old health technician, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, she injured her knees, back, and neck when she 

assisted a patient into bed while in the performance of duty. She stopped work on May 7, 1998.3 

On June 18, 1998 OWCP initially accepted appellant’s claim for right knee sprain. It later 

expanded the accepted conditions to include right knee medial meniscus tear. Appellant 

underwent OWCP-authorized right knee arthroplasty on September 2, 1998. OWCP paid her 

wage-loss compensation on the daily, periodic, and supplemental rolls for disability. On April 30, 

2002 it granted appellant a schedule award for 42 percent permanent impairment of the right lower 

extremity. The period of the award ran for 120.96 weeks from December 26, 2001 to

April 20, 2004. Thereafter, OWCP paid appellant wage-loss compensation for disability on the 

supplemental and periodic rolls.

On June 24, 2020 SSA forwarded a completed Federal Employees Retirement System 

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

November 2016 appellant’s SSA rate with FERS was $810.00 and without FERS was $390.00; 

beginning in December 2016 her SSA rate with FERS was $812.00 and without FERS was 

$391.00; beginning in December 2017 there was no FERS offset because she received disability 

benefits; beginning in November 2018 her SSA rate with FERS was $908.00 and without FERS 

was $437.00; beginning in December 2018 her SSA rate with FERS was $934.00 and without 

FERS was $449.00; and beginning in December 2019 her SSA rate with FERS was $949.00 and 

without FERS was $456.00.

On August 12, 2020 OWCP resent a FERS/SSA dual benefits calculation form to SSA. It 

requested that SSA verify whether appellant received SSA disability benefits and if her disability 

was for that period only.

On August 19, 2020 SSA forwarded a completed FERS/SSA dual benefits calculation form 

to OWCP. The form indicated that beginning in November 2016 appellant’s SSA rate with FERS 

was $810.50 and without FERS was $450.30; beginning in December 2016 her SSA rate with 

FERS was $812.90 and without FERS was $451.60; beginning in November 2018 her SSA rate 

with FERS was $908.20 and without FERS was $460.60; beginning in December 2018 her SSA 

with FERS was $934.20 and without FERS was $473.40; and beginning in December 2019 her 

2 Docket No. 05-590 (issued September 12, 2005).

3 On June 12, 1998 appellant’s employment was terminated by the employing establishment.
3

SSA rate with FERS was $939.10 and without FERS was $480.90. The form indicated that from

August 2017 through October 2018 appellant was entitled to receive disability benefits.

OWCP, by letter dated September 11, 2020, notified appellant that her compensation 

would be offset by the portion of her SSA age-related retirement benefits attributable to her federal 

service.

In a preliminary overpayment determination dated September 11, 2020, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $13,150.41

because her wage-loss compensation benefits had not been reduced for the period November 1, 

2016 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 $13,150.41. OWCP further advised appellant of its preliminary overpayment 

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 October 7, 2020 appellant completed an overpayment action request form and 

requested that OWCP make a decision based on the written evidence. She indicated that she was 

requesting waiver of recovery of the overpayment because she relied on written information given 

to her by OWCP and other governmental agencies to correctly calculate her payments. In an 

accompanying Form OWCP-20 of even date, appellant reported monthly income of $5,127.00, 

including SSA benefits of $2,759.00 and FECA compensation benefits of $2,368.00. She also 

reported monthly expenses of $1,190.00 for rent or mortgage; $700.00 for food; $150.00 for 

clothing; $550.00 for utilities; $1,600.00 for other expenses; $200.00 for a credit card; and $545.00 

for a car loan, totaling $4,935.00. Additionally, appellant reported funds of $200.00 in a checking 

account. She submitted financial documentation including a bank statement and bills. 

OWCP, by decision dated December 17, 2020, finalized the preliminary overpayment 

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

$13,150.40 for the period November 1, 2016 through August 15, 2020, for which she was not at 

fault, because her FECA 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 not establish that recovery of the overpayment would defeat the purpose of FECA or be against 

equity and good conscience. OWCP found that, based on monthly bills submitted, appellant listed 

monthly expenses totaling $3,078.95. It further found that she received $6,360.47 in monthly 

deposits based on a bank statement. OWCP concluded that appellant’s monthly income of 

$6,360.47 exceeded her monthly expenses of $3,078.95 by $3,281.52 , and thus, she was not 

entitled to waiver on the basis of defeating the purpose of FECA. It required recovery of the 

overpayment by deducting $468.19 from her continuing compensation payments.
4

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.4 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.5 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.6

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.7 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.8

ANALYSIS -- ISSUE 1

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

$13,150.41, 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 

November 1, 2016 to August 15, 2020.

In its December 17, 2020 decision, OWCP found that an overpayment of compensation 

was created for the period November 1, 2016 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 

attributable to federal service for the same period.9 The information provided by SSA established 

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

beginning November 1, 2016. OWCP, however, neglected to offset her FECA benefits until 

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

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see R.R.,Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued 

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

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

9

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).
5

an overpayment of wage-loss compensation for the period November 1, 2016 through

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 rates with 

FERS and without FERS for the period November 1, 2016 through 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 November 1, 2016 through August 15, 2020 and finds that an overpayment of compensation 

in the amount of $13,150.41, was created.10

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. 11 

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.12

Section 10.436 of OWCP’s implementing regulations provides that recovery of an 

overpayment would defeat the purpose of FECA if such recovery would cause hardship 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, 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.13 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 $50.00.14

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 

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

June 21, 2018).

11 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued 

June 12, 2019).

12 A.C., Docket No. 18-1550 (issued February 21, 2019); Robert Atchison, 41 ECAB 83, 87 (1989).

13 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 2018).

14 Federal (FECA) Procedure Manual id. at Chapter 6.400.4(a)(3) (September 2018).
6

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. 15 OWCP’s procedures 

provide that, to establish that a valuable right has been relinquished, an individual must 

demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and 

that his or her action was based primarily or solely on reliance on the payment(s) or on the notice 

of payment.16

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. 17

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

of FECA because she has not shown that she needs substantially all of her current income to meet 

ordinary and necessary living expenses. Evidence of record reveals that appellant received an 

income of $6,360.47 per month and that she had monthly expenses of $3,078.95. As appellant’s 

monthly income exceeds her monthly expenses by more than $50.00, in this case, $3,281.52, she 

has not shown that she needs substantially all of her current income to meet current ordinary and 

necessary living expenses.18 Because appellant has not met the first 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 second prong of the test based on her assets.

Appellant also has not established that recovery of the overpayment would be against 

equity and good conscience because she has not shown, for the reasons noted above, that she would 

experience severe financial hardship in attempting to repay the debt or that she relinquished a 

valuable right or changed her position for the worse in reliance on the payment which created the 

overpayment.19

Because appellant has not established that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, she has failed to establish that OWCP 

acted improperly by denying waiver of recovery of the $13,150.41 overpayment.

15 20 C.F.R. § 10.437; see E.H.,Docket No. 18-1009 (issued January 29, 2019).

16 FECA Procedure Manual, supranote 14atChapter 6.400.4c(3) (September 2018).

17 20 C.F.R. § 10.436.

18 Id. at § 10.437(a), (b).

1919 M.R.,Docket No. 20-1622 (issued June 30, 2021); L.D.,Docket No. 18-1317 (issued April17, 2019); WilliamJ. 

Murphy, 41 ECAB 569, 571-72(1989).
7

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.20

ANALYSIS -- ISSUE 3

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

$468.19 every 28 days from appellant’s continuing compensation payments.

In setting the recovery rate at $468.19, OWCP explained how it considered the factors set 

forth at 20 C.F.R. § 10.441(a) in setting the amount of repayment from continuing compensation 

benefits to minimize hardship, while liquidating the debt, as appellant had financial resources 

sufficient for more than ordinary needs.21 Thus, it did not abuse its discretion in setting the rate of 

recovery.22 The Board therefore finds that OWCP properly required recovery of the overpayment 

from appellant’s continuing compensation payments at the rate of $468.19 every 28 days.

CONCLUSION

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

$13,150.41, 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 

November 1, 2016 through 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 $468.19 every 28 days from her continuing compensation payments.

20 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).

21 F.K., Docket No. 20-1609 (issued June 24, 2021); D.S.,Docket No. 18-1447 (issued July 22, 2019).

22 F.K., id.; T.G., Docket No. 17-1989 (issued June 5, 2018); M.D.,Docket No. 11-1751 (issued May 7, 2012).
8

ORDER

IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed,

Issued: November 15, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board