United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.N., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA 

MEDICAL CENTER, Washington, DC,

Employer

__________________________________________

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Docket No. 20-0164

Issued: November 23, 2021

Appearances: Case Submitted on the Record

Timothy Shea, Esq., for the appellant1

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 October 28, 2019 appellant, through counsel, filed a timely appeal from a May 3, 2019

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Appellant, through counsel, submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). 

Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. 

§ 501.5(a). In support of appellant’s oral argument request, she asserted that oral argument should be granted to 

establish that OWCP improperly denied waiver of recovery of the overpayment. The Board, in exercising its 

discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be addressed 

in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a 

Board decision and not serve a useful purpose. As such, the oral argument request is denied a nd this decision is based 

on the case record as submitted to the Board.
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.4

ISSUES

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

overpayment of compensation in the amount of $34,976.44 for the period July 1, 2014 through 

March 2, 2019 for which she was without fault, as she concurrently received Social Security 

Administration (SSA) age-related retirement benefits and FECA wage-loss compensation, without 

an appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment; and 

(3) whether OWCP properly required recovery of the overpayment by deducting $204.63every 28 

days from appellant’s continuing compensation payments. 

FACTUAL HISTORY

This case has previously been before the Board on a different issue. 5 The facts and 

circumstances as presented in the prior decision are incorporated herein by reference. The relevant 

facts are as follows.

On November 10, 1993 appellant, then a 45-year-old file room clerk, filed an occupational 

disease claim (Form CA-2) alleging that her chronic asthmatic condition was aggravated as a result 

of renovation near her duty station, the temporary x-ray file room.6 She indicated that she first 

realized her condition was related to her federal employment on August 10, 1993. Appellant was 

placed on administrative leave until August 16, 1993. On October 18, 1993 she returned to her 

regular-duty station and experienced a severe asthmatic attack due to an unknown odor. Appellant 

stopped work on that date. On October 22, 1993 she elected to receive Office of Personnel 

Management (OPM) benefits. On March 31, 1998 OWCP accepted her claim for temporary 

aggravation of asthma. It then authorized wage-loss compensation.

In a letter dated June 9, 2010, OWCP advised appellant that her continuing compensation 

benefits must be reduced if she began receiving SSA retirement benefits based on her age and 

federal service.

On July 8, 2012 SSA informed appellant that she owed $20,674.00 due to an overpayment 

of SSA benefits. On August 20, 2013 it advised appellant that her monthly benefit was $796.70 

and that it was withholding $79.60 a month. On August 22, 2013 SSA found that appellant owed 

$19,498.20 due to an overpayment and that the overpayment would be repaid by September 2015. 

In a December 11, 2013 letter, SSA informed appellant that it was reviewing her overpayment 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that,following the May 13, 2019 decision, OWCP received additional evidence. 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.

5 Docket No. 95-2729 (issued July 29, 1997).

6 Appellant began her federal employment at the employing establishment on January 8, 1984.
3

decision and would reinstate her benefits in the amount of $727.20. In 2013, appellant repaid 

$5,305.60 in SSA benefits. She received a cost-of-living adjustment (COLA) increase in 

January 2014 resulting in SSA benefits of $727.20. On June 6, 2014 SSA indicated that beginning 

December 2013 her full monthly SSA benefit was $808.60. In a letter dated August 10, 2014, it

addressed her disability benefits noting that, beginning in July 2013, it was not reducing these 

benefits because of her age.

In a February 23, 2015 letter, SSA informed appellant that her benefits would be reduced 

to $645.30 based on payment of Medicare Part B insurance premiums beginning April 2015. On 

July 4, 2015 it indicated her SSA benefits would be increased to $822.00 a month. On August 24, 

2015 SSA found that appellant had been overpaid SSA benefits in the amount of $14,581.60 and 

that it would withhold $417.00 to recover this overpayment from her monthly SSA benefits.

On March 28, 2017 SSA informed appellant that her date of entitlement to SSA benefits 

was July 1994. It provided her monthly SSA benefits with cost-of-living adjustments from 1994 

through January 2017 and noted that she was currently receiving $824.00 a month.

In letters dated July 3, 2018, SSA indicated that appellant’s overpayment of SSA benefits 

had been recovered and that she would receive benefits in the amount of $841.00 or $ 727.20 a 

month beginning August 2018.

On January 7, 2019 OWCP forwarded a Federal Employees Retirement System 

(FERS)/(SSA) dual benefits calculation form to the SSA to determine whether an offset of 

compensation benefits was required.

On January 30, 2019 OWCP received from SSA a completed FERS/SSA dual benefits 

calculation form dated January 22, 2019, which reported that appellant had been in receipt of agerelated retirement benefits since July 2014. The form listed her SSA age-related retirement benefit

rates with FERS and without FERS as follows: beginning July 2014, the monthly SSA rate with 

FERS was $808.00 and without FERS was $201.00; beginning December 1, 2014 through 

November 30, 2016, appellant’s SSA rate with FERS was $822.00 and without FERS was 

$204.00; beginning December 1, 2016, appellant’s SSA rate with FERS was $824.00, and without 

FERS was $205.00; beginning December 1, 2017, appellant’s SSA rate with FERS was $841.00, 

and without FERS was $209.00; beginning December 1, 2018, appellant’s SSA rate with FERS 

was $864.00 and without FERS was $215.00.

OWCP completed a FERS offset calculation worksheet on March 1, 2019. It determined 

the overpayment amount by multiplying the daily FERS offset amount by the number of days in 

each period from July 1, 2014 through March 2, 2019, resulted in a total overpayment of 

$34,976.44. OWCP related: from July 1 through November 30, 2014, appellant received an 

overpayment in the amount of $3,061.68; from December 1, 2014 through November 30, 2015,

she received an overpayment in the amount of $7,436.37; from December 1, 2015 through

November 30, 2016, appellant received an overpayment in the amount of $7,456.75; from 

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

$7,448.41; from December 1, 2017 through November 30, 2018, appellant received an 

overpayment in the amount of $7,604.84; and from December 1, 2018 through March 2, 2019 she

received an overpayment in the amount of $1,968.40.
4

In a March 15, 2019 letter, OWCP informed appellant that she had been receiving dual 

FERS and SSA age-related retirement benefits without an appropriate offset. It further informed 

her that her FECA wage-loss compensation benefits must be adjusted based on the FERS portion 

of SSA benefits that were attributable to federal service. OWCP indicated that appellant’s FECA 

benefits would be reduced by $599.08 to $1,354.92 every 28 days.

On March 26, 2019 OWCP notified appellant of its preliminary overpayment 

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

$34,976.44 for which she was without fault, because it failed to reduce her FECA wage-loss 

compensation for the period July 1, 2014 through March 2, 2019 to offset her SSA age-related 

retirement benefits attributable to federal service. It requested that she 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. 

It further requested that appellant 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, OWCP provided appellant with an overpayment action 

request form and notified her 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.

On April 26, 2019 appellant, through counsel, requested a decision based on the written 

evidence as well as waiver of recovery of the overpayment. She asserted that OWCP should waive 

recovery of the overpayment as she was without fault and as OWCP failed to timely determine 

that the overpayment had occurred.

OWCP received a completed Form OWCP-20 dated April 22, 2019, wherein appellant 

advised that she had monthly income of $3,353.60 including her SSA benefits of $864.60, her 

spouse’s SSA benefits of $643.00 as well as FECA and other unspecified household benefits of 

$1,946.00.

7

 She listed monthly expenses of $200.00 for housing, $200.00 for food, $80.00 for 

clothing, $105.64 for health insurance, and $453.02 for utilities, miscellaneous household 

expenses, medical and dental expenses, automobile expenses, and personal necessities. Appellant

also included $608.00 for property taxes. She listed debts paid by monthly installments totaling

$1,602.96per month as well as Medicare costs of $1,464.00, which yielded total monthly expenses 

of $4,713.62. Appellant listed her assets totaling $92.99, including $74.00 in a checking account 

and $18.99 in a savings account.

Appellant provided financial documentation supporting that she paid property taxes, as 

well as credit card payments, utilities, and life/medical insurance costs. She further submitted a 

bill that indicated that she paid $4.29 per month for a newspaper. Appellant provided checking 

and savings account statements.

By decision dated April 26, 2019, OWCP finalized its preliminary overpayment 

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

of $34,976.44 for the period July 1, 2014 through March 2, 2019. It found appellant without fault 

in the creation of the overpayment, but denied waiver of recovery. OWCP required recov ery of 

7 The Board notes that appellant’s FECA benefits were reduced from $1,954.00 to $1,354.92. Appellant did not 

list the specific source of the additional $591.08 in household income. 
5

the overpayment by deducting $204.63 from appellant’s continuing compensation payments every 

28 days.

On May 3, 2019 OWCP issued a final overpayment decision, which superseded the

April 26, 2019 decision. It found that appellant had received an overpayment of compensation in 

the amount of $34,976.44 for the period July 1, 2014 through March 2, 2019 for which she was

without fault. OWCP denied waiver of recovery, finding that appellant had monthly income of 

$3,453.60 and monthly expenses of $1,291.88 including food, clothing, utilities, and monthly 

credit card payments such that her monthly income exceeded her monthly expenses by $2,111.72,

which was more than the $50.00 allotted amount. Therefore, it determined that the evidence of 

record was insufficient to establish that recovery would defeat the purpose of FECA. OWCP 

further found that there was no evidence that appellant gave up a valuable right or changed in 

position for the worse such that recovery of the overpayment would be against equity and good 

conscience. It required recovery of the overpayment by deducting $204.63 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.8 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.9

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 benefits that are attributable to the 

employee’s federal service.10 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.11

ANALYSIS -- ISSUE 1 

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

of compensation for the period July 1, 2014 through March 2, 2019 because she concurrently 

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

appropriate offset.

Appellant received FECA wage-loss compensation from July 1, 2014 through March 2, 

2019 while she continued to receive age-related retirement benefits from SSA. As previously 

8

5 U.S.C. § 8102(a).

9

Id. at § 8116.

10 20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued 

August 20, 2018).

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

noted, OWCP is required to reduce the amount of compensation by the amount of any SSA agerelated retirement benefits that are attributable to the employee’s federal service.12

 The fact and 

the period of overpayment are, therefore, established.

The Board further finds, however, that the case is not in posture for decision with regard 

to the amount of the overpayment.

13

 OWCP determined that appellant received an overpayment 

of compensation from July 1, 2014 through March 2, 2019 because she received compensation 

from OWCP and SSA age-related retirement benefits without an appropriate offset. The case 

record, however, contains contradictory evidence from SSA regarding the actual amount that 

appellant received in SSA age-related retirement benefits during the FERS/SSA dual benefits 

period from July 1, 2014 through March 2, 2019. In letters dated July 8, 2012, August 22, 2013,

and August 24, 2015, SSA reported that appellant had outstanding overpayments of SSA benefits 

of $20,674.00, $19,498.20, and $14,581.60, respectively, and informed her that it would withhold 

a portion of her ongoing SSA age-related retirement benefits to collect these overpayment

amounts. These 2012, 2013, and 2015 letters suggest that appellant received reduced SSA agerelated retirement benefits for a portion of the dual benefits period from July 1, 2014 through 

March 2, 2019, because the 2012, 2013, and 2015 SSA overpayments were recouped by reducing 

her ongoing SSA age-related retirement benefits.

The Board has held that, in overpayment cases, it is essential that OWCP provide the 

recipient of compensation with a clear statement showing how the overpayment was calculated. 14 

With respect to the amount of the overpayment, the Board finds that OWCP has not adequately 

explained how the overpayment was determined in light of the discrepancies in the evidence 

provided by SSA as to the actual amounts of SSA age-related retirement benefits received by 

appellant during the period July 1, 2014 through March 2, 2019, as there is evidence in the record 

that a portion of her ongoing SSA age-related retirement benefits made during the dual benefits 

period were withheld in recompense for prior SSA overpayments. As such, OWCP has not 

established the amount of the overpayment in question.

15

On remand OWCP shallseek clarification from SSA regarding the actual amount of SSA 

age-related retirement benefits that appellant received during the FERS/SSA dual benefit period

July 1, 2014 through March 2, 2019. It shall then determine the amount of the overpayment of 

compensation and issue a new preliminary overpayment determination with an overpayment action 

request form, an overpayment recovery questionnaire, and instructions for appellant to provide 

supporting financial information. After this and other such further development as deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

of compensation for the period July 1, 2014 through March 2, 2019, because she concurrently 

12 Supra note 10.

13 D.D., Docket No. 20-1172 (issued September 29, 2021); L.H., Docket No. 20-0115 (issued September 4, 2020). 

14 Id.

15 See D.D., supra note 13. 
7

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

appropriate offset. The Board further finds, however, that the case is not in posture for decision 

with regard to the amount of the overpayment.16 

ORDER

IT IS HEREBY ORDERED THAT the May 3, 2019 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: November 23, 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

16 In light of the Board’s disposition in Issue 1, Issues 2 and 3,the issues of waiver and recovery of the overpayment 

are rendered moot.