United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

St. Petersburg, FL, Employer

__________________________________________

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Docket No. 18-1101

Issued: January 17, 2019

Appearances: Case Submitted on the Record

C.B. Weiser, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 7, 2018 appellant, through counsel, filed a timely appeal from a November 13, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

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 5 U.S.C. § 8101 et seq. 
2

ISSUES

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

overpayment of compensation in the amount of $120,114.57 for the period November 1, 2007 

through March 4, 2017; (2) whether OWCP properly denied waiver of recovery of the 

overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting 

$950.00 every 28 days from appellant’s continuing compensation.

FACTUAL HISTORY

On May 2, 2000 appellant, then a 58-year-old clerk,3filed a traumatic injury claim (Form 

CA-1) alleging that, on April 24, 2000, she suffered a panic attack due to ongoing harassment by 

employing establishment superiors. She stopped work on the date of the claimed injury.

Following OWCP’s initial denial of the claim on August 21, 2000, on October 24, 2001 

OWCP accepted the claim for depression and anxiety disorder. It paid appellant retroactive wageloss compensation and placed her on the periodic compensation rolls. Appellant has not returned 

to work.

Appellant signed EN1032 forms on an annual basis beginning February 21, 2008. In the 

forms signed in 2008 to 2011, she reported receiving Social Security Administration (SSA)

benefits, and on the EN1032 forms signed on January 23, 2012, February 3, 2013, and January 24, 

2014, she reported that she was receiving age-related SSA benefits. On the EN1032 form signed 

February 10, 2015, appellant reported no SSA benefits, and on the EN1032 forms she signed on 

January 14, 2016, January 26, 2017, and January 24, 2018, she reported that she received agerelated SSA benefits.

OWCP forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits 

calculation form to SSA on January 28, 2016. SSA returned the form on April 21, 2016. It 

indicated that, beginning in November 2007, appellant’s SSA rate with FERS was $1,182.40 and 

without FERS was $234.50; beginning in December 2007, appellant’s SSA rate with FERS was

$1,209.50 and without FERS was $239.80; beginning in January 2008, appellant’s SSA rate with 

FERS was $1,218.30, and without FERS was $239.80; beginning in December 2008, 

December 2009, and December 2010, appellant’s SSA rate with FERS was $1,288.90 and without 

FERS was $253.70; beginning in December 2011, appellant’s SSA rate with FERS was $1,335.30

and without FERS was $262.80; beginning in December 2012, appellant’s SSA rate with FERS

was $1,358.00 and without FERS was $267.20; beginning in December 2013, appellant’s SSA 

rate with FERS was $1,378.30 and without FERS was $271.20; beginning in December 2014 and 

December 2015, appellant’s SSA rate with FERS was $1,401.70 and without FERS was $275.80.

By letter dated March 8, 2017, OWCP notified appellant that, based on information 

provided by SSA regarding the amount of her SSA benefit attributable to her federal service, her 

FECA wage-loss compensation had been adjusted. The record indicates this adjustment was 

effective March 5, 2017. 

 

3 Appellant’s date of birth is in January 1942. 
3

On April 4, 2017 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $120,114.57 had been created. It explained that the overpayment 

occurred because a portion of appellant’s SSA benefit that she received from November 2, 2007 

through March 4, 2017 was based on credits earned while working in the Federal Government, 

and that this portion of her SSA benefit was prohibited because it was a dual benefit. OWCP found 

her without fault in the creation of the overpayment and provided an overpayment action request 

form and an overpayment recovery questionnaire (OWCP-20) for her completion. It informed 

appellant that, in order for it to consider the question of waiver or to determine a reasonable method 

for collection, she must provide a completed OWCP-20 form, and attach supporting financial 

documentation, including copies of income tax returns, bank statements, bills, canceled checks, 

pay slips, and any other record to support claimed income and expenses. OWCP notified her that 

failure to submit the requested information within 30 days would result in the denial of waiver. 

Appellant requested a prerecoupment hearing with OWCP’s Branch of Hearings and 

Review. She maintained that she was without fault and requested waiver. Appellant indicated 

that her granddaughter was a dependent and noted monthly expenses related to her care. She also 

reported that she had medical expenses for abdominal surgery in November 2006, a head cyst 

removal in 2007 or 2009, removal of cancerous cysts from shoulder and back in 2009, and a right 

knee replacement in 2013. On the overpayment recovery questionnaire, appellant wrote that she 

had monthly income of $2,893.73, listed approximate monthly expenses of $1,500.00, and assets 

included a checking account balance of $2,578.80 and $65,000.00 in other property. She attached 

additional financial information that indicated that she had a bank account balance of $53,306.17.

During the hearing, held on September 27, 2017, appellant testified that she had not 

adopted her granddaughter, but visited her twice monthly. Her psychologist, Gerald E. Boutin, 

Ph.D, testified that appellant was cognitively impaired due to recent brain surgery, with short-term 

memory difficulties. OWCP’s hearing representative advised appellant that she should itemize 

her expenses and submit bills for verification, including any exceptional medical costs. Appellant 

was given 30 days to submit additional evidence. No further evidence was submitted.

By decision dated November 13, 2017, an OWCP hearing representative finalized the 

April 4, 2017 preliminary overpayment determination, finding that an overpayment of 

compensation in the amount of $120,114.57 had been created. He explained that the overpayment 

occurred because a portion of appellant’s SSA benefits that she received from November 1, 2007 

to March 4, 2017 was based on credits earned while working in the Federal Government, and that 

this portion of her SSA benefit was a prohibited dual benefit. The hearing representative found 

appellant without fault in the creation of the overpayment, but denied waiver of recovery as there 

was no evidence to support that recovery would be against good conscious or defeat the purpose 

of FECA. He calculated appellant’s monthly income from SSA, FECA, and other disbursements 

reported, for a total monthly income of $3,203.00 and allowed monthly expenses of $1,972.00. 

The hearing representative further noted that appellant had reported total assets of $115,595.00

and set repayment at $950.00, to be deducted each period from appellant’s continuing FECA 

compensation. 
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 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.5 

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

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

employee.6 FECA Bulletin No. 97-09 states that FECA benefits must 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.7 

Section 404.310 of SSA’s regulations provides that entitlement to SSA compensation 

begins at 62 years.8 Section 404.409 of SSA’s regulations provides that for individuals born from 

January 2, 1942 to January 2, 1943, retirement age is 65 years 10 months.9

ANALYSIS -- ISSUE 1

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

$120,114.57 as identified by OWCP. A review of its calculation reveals that by adding the annual 

overpayment amounts, a total overpayment of $120,114.57 is found. 

OWCP found that an overpayment of compensation was created for the period 

November 1, 2007 to March 4, 2017. The overpayment was based on the evidence received from 

SSA with respect to benefits paid to appellant. The record indicates that while appellant was 

receiving compensation for total disability under FECA, she also received SSA age-based 

retirement benefits. A claimant cannot receive concurrent FECA wage-loss compensation and 

SSA retirement benefits attributable to federal service for the same period.10 The information 

provided by SSA indicated that appellant received age-based SSA benefits that were attributable 

to federal service during the period November 1, 2007 to March 4, 2017.

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6 20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

7 FECA Bulletin No. 97-09 (issued February 3, 1997).

8 20 C.F.R. § 404.310.

9

Id. at § 404.409.

10 Supra notes 8 and 9.
5

To determine the amount of the overpayment, the portion of the SSA benefits that were 

attributable to federal service must be calculated. OWCP received evidence from SSA with respect 

to the specific amount of age-based SSA retirement benefits that were attributable to federal 

service. SSA provided the SSA rate with FERS, and without FERS for specific periods 

commencing in November 2007 through March 2017. OWCP provided its calculations for each 

relevant period based on the SSA worksheet. No contrary evidence was provided. The Board has 

reviewed OWCP’s calculation of benefits received by appellant for the period November 1, 2007 

to March 4, 2017 and finds that an overpayment of compensation in the amount of $120,114.57 

was created.11

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment of compensation shall be recovered 

by OWCP 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.”

12

 Section 10.438 of OWCP 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 

on 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.13

The guidelines for determining whether recovery of an overpayment would defeat the 

purpose of FECA or would be against equity and good conscience are set forth in sections 10.434 

to 10.437 of OWCP regulations.14

Section 10.436 provides that 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 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.15 For waiver under 

the defeat the purpose of FECA standard, appellant must show that he or she needs substantially 

all of his or her current income to meet current ordinary and necessary living expenses, and that 

assets do not exceed the resource base.16 An individual is deemed to need substantially all of his 

 

11 See G.K., Docket No. 18-0243 (issued August 17, 2018).

12 5 U.S.C. § 8129.

13 20 C.F.R. § 10.438.

14 Id. at §§ 10.434-10.437.

15 Id. at. § 10.436.

16 Id. 
6

or her current income to meet current ordinary and necessary living expenses if monthly income 

does not exceed monthly expenses by more than $50.00.17

OWCP’s procedures in effect at the time of the November 13, 2017 decision18 provide that 

the assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an 

individual with a spouse or dependent plus $960.00 for each additional dependent.19 An 

individual’s liquid assets include, but are not limited to cash, the value of stocks, bonds, saving 

accounts, mutual funds, and certificate 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, and 

furnishings/supplies.20

Recovery of an overpayment is also considered to be against equity and good conscience 

when any 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.21 OWCP procedures provide 

that 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.22 Donations to charitable causes or gratuitous 

transfers of funds to other individuals are not considered relinquishments of valuable rights.23 An 

individual must show that he or she made a decision he or she otherwise would not have made in 

reliance on the overpaid amount and that this decision resulted in a loss.24 

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.25

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

of FECA because her assets exceed the resource base of $4,800.00, as provided in OWCP 

 

17 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.200.6.a(1)(b) (June 2009).

18 The procedures were revised in September 2018.

19 Supra note 17.

20 Id. 

21 20 C.F.R. 10.437; see W.P., 59 ECAB 514 (2008).

22 Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.600.b(3) (June 2009).

23 20 C.F.R. § 10.437(b)(1) (2011); see J.A., Docket No. 09-1678 (issued June 9, 2010).

24 Id. at § 10.437(b)(2) (2011); see Wayne G. Rogers, 54 ECAB 482 (2003).

25 Id. at § 10.436.
7

procedures.26 The supporting financial information of record documents assets in the amount of 

$115,595.00. Because appellant 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 not necessary to consider 

the first prong of the test, i.e., whether her monthly income exceeded her monthly ordinary and 

necessary expenses by more than $50.00.27 Appellant did not establish that she was entitled to 

waiver of recovery of the overpayment on the basis of defeating the purpose of FECA.28

Counsel contends on appeal that OWCP’s hearing representative did not properly consider 

reported expenses. However, as noted above, OWCP need not address whether appellant’s 

monthly expenses exceeded her monthly income as her assets exceed the resource base of 

$4,800.00.29 Moreover, the guidelines for determining ordinary and necessary expenses are set 

forth in OWCP’s procedures, and the Board finds that the hearing representative properly 

calculated such expenses in this case.30

As appellant failed to establish that recovery of the overpayment of compensation would 

defeat the purpose of FECA or be against equity and good conscience, the Board finds that OWCP 

did not abuse its discretion in denying waiver of recovery.31

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.32

Section 10.441 of OWCP’s regulations provides that 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 hardship.33

ANALYSIS -- ISSUE 3

The Board finds that OWCP gave due regard to the relevant factors noted above in setting 

a rate of recovery of $950.00 per compensation period, i.e., every 28 days, and finds that OWCP’s

 

26 Id.

27 Id. 

28 See K.K., Docket No. 09-0207 (issued October 2, 2009).

29 Supra note 17.

30 20 C.F.R. § 10.437; see also D.C., Docket No. 17-0559 (issued June 21, 2018).

31 G.K., supra note 11.

32 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

33 Id.
8

hearing representative did not abuse his discretion in setting appellant’s monthly expenses at 

$1,411.00 per month. 

The record indicates that appellant’s monthly income exceeds her reported monthly 

expenses. OWCP therefore did not abuse its discretion in finding that appellant should repay the 

overpayment at the rate of $950.00 per 28 days from her continuing compensation.34

CONCLUSION

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

of compensation in the amount of $120,114.57, and that OWCP properly denied waiver of 

recovery of the overpayment. OWCP also properly required recovery of the overpayment by 

deducting $950.00 every 28 days from her continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the November 13, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 17, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

34 N.S., Docket No. 14-2081 (issued February 12, 2015).