United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.H., widow of K.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL EMERGENCY MANAGEMENT 

AGENCY, Warren, MI, Employer

__________________________________________

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Docket No. 19-1130

Issued: November 19, 2020

Appearances: Case Submitted on the Record

George P. Ferro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 10, 2019 appellant, through counsel filed a timely appeal from October 23 and 24, 

2018 merit decisions 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.3

 

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.

3 The Board notes that following the October 24, 2018 decision, OWCP and the Board 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.
2

ISSUES

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

amount of $29,591.10 for the period January 12, 2015 through November 12, 2016 because he 

concurrently received FECA wage-loss compensation benefits and Social Security Administration 

(SSA) age-related retirement benefits without an appropriate offset; (2) whether OWCP properly 

found the employee at fault in creation of the $29,591.10 overpayment, thereby precluding waiver 

of recovery of the overpayment; (3) whether OWCP properly determined that the employee

received an overpayment of compensation in the amount of $1,446.61, for which he was without 

fault, because he concurrently received sick leave pay and FECA wage-loss compensation during 

the period December 14 through 30, 2014; (4) whether OWCP properly denied waiver of recovery 

of the $1,446.61 overpayment; and (5) whether OWCP properly required recovery of the 

$29,591.10 and $1,446.61 overpayments from the employee’s estate. 

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On December 3, 2014 the employee, then a 75-year-old Federal Emergency Management 

Agency (FEMA) public assistance group supervisor, filed a traumatic injury claim (Form CA-1) 

alleging that he injured his hip when he tripped on a floor mat and fell, while in the performance 

of duty. The employee’s retirement coverage was noted on the form as Federal Employees

Retirement System (FERS). The employee stopped work and did not return. OWCP accepted the 

claim for closed fracture of neck of left femur. The record reflects that OWCP paid the employee 

FECA wage-loss compensation on the supplemental rolls as of December 14, 20145and on the 

periodic rolls as of June 28, 2015. 

In a June 10, 2015 narrative statement, the employee asserted that, to date, he had not 

received FECA wage-loss compensation benefits. He reported receiving federal salary net 

payments of $2,181.56 on December 19, 2014 and $1,182.33 on January 5, 2015.

On June 6, 2016 the employee submitted an affidavit of earnings and employment 

(EN1032 form) in which he answered “No” when asked if he received benefits from the SSA as 

part of an annuity for federal service.

By letter dated July 25, 2016, the employee notified OWCP that he retired as a full-time 

employee from the employing establishment on February 27, 2004. He then returned as a parttime employee later in 2004 on an as needed temporary basis. The employee reported that he 

started drawing his annuity after he retired and began receiving FECA wage-loss benefits after his

November 26, 2014 employment injury. He reported that he could not understand why “they want 

to cancel” his FECA wage-loss compensation benefits and that he was never made aware of not 

being eligible to collect his regular pension concurrently with FECA benefits. 

 

4 Docket No. 18-0171 (issued August 2, 2018).

5 OWCP paid appellant compensation on the supplemental rolls retroactively on June 29, 2018.
3

On September 30 and October 21, 2016 OWCP forwarded a FERS/SSA dual benefits 

calculations worksheet to SSA. 

In a November 14, 2016 FERS/SSA dual benefits calculations worksheet, SSA reported 

that as of January 2015, the employee’s SSA rate with FERS was $2,248.70 and SSA rate without 

FERS was $911.00, and as of December 2016, the employee’s SSA rate with FERS was $2,255.40 

and without FERS was $913.70.

In a November 25, 2016 FERS offset calculation worksheet, the employee’s SSA rate with 

FERS totaled $2,248.70 and SSA without FERS totaled $911.00 with a January 1, 2015 effective 

date. A monthly FERS offset of $1,337.70 and a 28-day FERS offset of $1,234.80 was reported. 

The overpayment start date was recorded as January 1, 2015 with an end date of November 12, 

2016 for a total of 682 days. The worksheet reflected that the overpayment amount totaled 

$30,076.20.

By notice dated November 23, 2016, OWCP issued a preliminary determination that an 

overpayment of compensation in the amount of $30,076.20 was created for the period January 1, 

2015 through November 12, 2016 as the employee was paid dual compensation under FECA and 

SSA without an appropriate offset. It found that the employee was with fault in the creation of the 

overpayment because he accepted a payment that he knew or reasonably should have known was 

incorrect. The November 14, 2016 FERS/SSA dual benefits calculations worksheet and 

November 25, 2016 FERS offset calculation worksheet were provided. OWCP informed the 

employee of his options if he wished to contest the fact or amount of overpayment or request a 

waiver of recovery and provided him with an overpayment recovery questionnaire (Form 

OWCP-20). 

On December 18, 2016 the employee, through counsel, requested a prerecoupment hearing 

before an OWCP hearing representative. The employee disagreed with the amount of the 

overpayment and reported that it occurred through no fault of his own.

A hearing was held on June 16, 2017, where counsel argued that an overpayment occurred 

through no fault of the employee and that repayment would cause a financial hardship.

By letter dated July 26, 2017, the employee reiterated that he was never made aware that 

he could not collect FECA concurrently with his monthly federal retirement benefits to which he 

was entitled after 20 years of federal service.

By decision dated September 21, 2017, an OWCP hearing representative found that an 

overpayment of compensation in the amount of $30,076.20 was created for the period January 1, 

2015 through November 12, 2016 because the employee was paid dual compensation under FECA 

and SSA without an appropriate offset. She overturned the preliminary determination’s finding of 

fault, explaining that the employee was without fault in the creation of the overpayment because 

it was reasonable that he may not have understood that he was in receipt of dual benefits. The 

hearing representative explained that the employee’s letters established that he was unclear 

regarding the benefits he was receiving. She further found that the employee failed to submit a 

Form OWCP-20 or any supporting financial information and that the overpayment was, therefore, 

not subject to waiver. Based on his current 28-day compensation benefit of $1,230.50, the hearing 

representative determined that the employee could repay the overpayment by deducting $275.00 

every 28 days from his continuing compensation benefits.
4

On October 27, 2017 the employee, through counsel, submitted a completed Form 

OWCP-20 dated September 27, 2017, which listed his monthly expenses, assets, and income in 

support of waiver of recovery of the overpayment due to financial hardship. Counsel for the 

employee noted that his monthly expenses exceeded his income and requested waiver of the 

overpayment in light of the recent finding that he was without fault in the creation of the 

overpayment. In the alternative, counsel requested a reduction of the monthly recoupment amount 

to $50.00 for each compensation period as $275.00 would cause him severe prejudice.

On October 30, 2017 the employee, through counsel, filed a timely appeal to the Board 

from OWCP’s September 21, 2017 merit decision. 

On June 19, 2018 the employing establishment forwarded a claim for compensation (Form 

CA-7) to OWCP claiming disability while in a leave without pay (LWOP) status from 

December 14 to 30, 2014.

The record reflects that the employee passed away on July 5, 2018.

On July 12, 2018 the employing establishment forwarded another Form CA-7 to OWCP 

claiming disability while in an LWOP status from December 1 to 30, 2014.

By letter dated July 17, 2018, OWCP notified the employee that it had received the CA-7

forms claiming compensation for the period beginning December 1 through 30, 2014. It informed 

him that the continuation of pay (COP) period ran from November 27, 2014 through January 10, 

2015, which was paid by his employing establishment, and that any wage-loss subsequent to that 

date could be covered under compensation if he were disabled for work. By decision dated 

August 2, 2018, the Board vacated OWCP’s September 21, 2017 merit decision in part. The Board 

found that OWCP had established fact of overpayment, but that OWCP had not established the 

amount of the overpayment.6 The Board found that OWCP did not provide a complete payment 

history substantiating the employee’s receipt of dual SSA age-related retirement and FECA wageloss compensation benefits during the purported overpayment period January 1, 2015 through 

November 12, 2016 as there was evidence of record that appellant received COP benefits through 

January 11, 2015.7 The Board found that the record was unclear regarding the amount of 

overpayment and remanded the case for further development.

Following the Board’s remand, in a September 12, 2018 Form CA-110 telephone 

memorandum, the employing establishment advised OWCP that the employee used sick leave 

from November 26, 2014 through January 11, 2015.

In a September 12, 2018 FERS offset calculation worksheet, the employee’s SSA rate with 

FERS totaled $2,248.70 and SSA without FERS totaled $911.00 with a January 12, 2015 effective 

 

6 Supra note 4.

7 The Board noted that OWCP’s June 29, 2015 initial payment memorandum and July 1, 2015 letter indicated that 

the record was unclear regarding whether the employee received COP from November 27, 2014 through 

January 11, 2015. A June 30, 2015 supplemental rolls payment worksheet reflected that the employee received 

disability compensation from January 12 through June 27, 2015. OWCP requested clarification regarding the matter, 

but failed to discharge its burden in developing the evidence as the issue remained unresolved. As such, it was unclear 

how it determined the overpayment began on January 1, 2015 and OWCP should not have relied on SSA’s unverified 

report to determine that the overpayment began on that date. 
5

date. A monthly FERS offset of $1,337.70 and a 28-day FERS offset of $1,234.80 was reported. 

The overpayment start date was recorded as January 12, 2015, with an end date of November 12, 

2016, for a total of 671 days. The worksheet reported that the overpayment amount totaled 

$29,591.10.

By preliminary determination dated September 13, 2018, OWCP advised the employee’s 

estate of an overpayment of compensation in the amount of $29,591.10 because the employee was 

paid dual wage-loss compensation benefits under FECA and SSA age-related retirement benefits 

without an appropriate offset for the period January 12, 2015 through November 12, 2016. It also 

found that the employee had been at fault in the creation of the overpayment because he accepted 

a payment that he knew or reasonably should have known was incorrect. OWCP advised the 

employee’s estate that it could submit evidence challenging the fact, amount, or finding of fault, 

and request waiver of recovery of the overpayment. It also directed the employee’s estate to 

complete a Form OWCP-20, and advised it of its appeal rights.

In another notice dated September 18, 2018, OWCP advised the employee’s estate of its 

preliminary determination of an overpayment of compensation in the amount of $1,446.61 for the 

period December 14 through 30, 2014, because the employee was paid sick leave and FECA wageloss compensation for the same period of time. It found that he was without fault in the creation 

of the overpayment because the employee was not aware nor could reasonably have been expected 

to know that OWCP had paid compensation incorrectly. OWCP requested that the employee’s 

estate complete the enclosed Form OWCP-20 and submit supporting financial documentation.

Additionally, it notified the estate that, within 30 days of the date of the letter, it could request a 

telephone conference, a final decision based on the written evidence, or a prerecoupment hearing. 

On October 9, 2018 appellant, the employee’s widow, contested the fact that the

overpayments had occurred, the finding of fault, and requested a waiver of recovery of the 

overpayments. She denied having knowledge of the alleged overpayment, which occurred almost 

four years ago. Appellant again informed OWCP that the employee passed away on July 5, 2018 

and if an overpayment existed, it should be waived because she was unable to afford the payments. 

She reported that she had no knowledge or information pertaining to any overpayment between 

the employee and OWCP and did not understand the situation. Appellant did not complete or 

return the Form OWCP-20 or provide financial documentation.

By decision dated October 23, 2018, OWCP issued a final overpayment determination to 

the employee’s estate finding a $29,591.10 overpayment of compensation for the period 

January 12, 2015 through November 12, 2016, because the employee was paid dual wage-loss 

compensation benefits under FECA and SSA age-related retirement benefits without an 

appropriate offset.8 It further finalized the finding of fault, thereby precluding waiver of recovery 

of the overpayment. OWCP required repayment of the overpayment in full. 

In a separate decision dated October 24, 2018, OWCP issued a final overpayment 

determination to the employee’s estate, finding a $1,446.61 overpayment of compensation for the 

 

8 OWCP noted that under the current debt number 906325805, an overpayment in the amount of $29,591.10 that 

was declared in the case for the period January 12, 2015 through November 12, 2016. It further noted that $2,750.00 

was collected under the prior debt number 906297328 due to lack of an SSA/FERS offset. That record was voided 

and a new one created following the Board’s August 2, 2018 decision. Therefore the current remaining balance of the 

overpayment amounted to $26,841.10.
6

period December 14 through 30, 2014, because the employee was paid leave for the same period 

he received FECA wage-loss compensation. It determined that he was without fault in the creation 

of the overpayment because the employing establishment erred in sending OWCP the Form CA-7 

claiming compensation for lost wages, but denied waiver of recovery of the overpayment of 

compensation because the employee’s estate failed to provide any of the financial information 

requested. OWCP concluded that there was no evidence to substantiate that recovery of the 

overpayment would either defeat the purpose of FECA or be against equity and good conscience.

It required repayment of the overpayment in full.

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 duty.9 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.10

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.11 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.12

ANALYSIS -- ISSUE 1

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

of $29,591.10, because he concurrently received FECA benefits and SSA age-related retirement 

benefits for the period January 12, 2015 through November 12, 2016 without an appropriate 

offset.13 

By decision dated August 2, 2018, the Board remanded the case for OWCP to determine 

whether an overpayment of compensation was created in the amount of $30,076.20 for the period 

January 1, 2015 through November 12, 2016 as OWCP had failed to provide a complete payment 

history substantiating the employee’s receipt of dual SSA age-related retirement and FECA wageloss compensation benefits during the purported overpayment period

In September 2018, OWCP developed a complete payment history substantiating the 

employee’s receipt of FECA benefits during the purported overpayment period, from January 12, 

 

9 5 U.S.C. § 8102(a). 

10 Id. at § 8116.

11 20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802 

(issued August 20, 2018).

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

13 T.B., Docket No. 18-1449 (issued March 19, 2019).
7

2015 through November 12, 2016 while also receiving SSA age-related retirement benefits 

without an appropriate offset. The record indicates that, while the employee was receiving 

compensation for total disability under FECA, he was also receiving SSA age-related retirement 

benefits. A claimant cannot receive both compensation for wage-loss under FECA and SSA agerelated retirement benefits attributable to federal service for the same period.14

 As the employee

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

period January 12, 2015 through November 12, 2016, the fact of overpayment has been 

established.15

To determine the amount of the overpayment, OWCP must calculate the portion of the 

SSA benefits that were attributable to federal service. It received documentation from SSA 

providing appellant’s SSA rate with FERS, and without FERS for the period January 12, 2015 

through November 12, 2016. 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 the employee for the period January 12, 2015 through 

November 12, 2016 and finds that an overpayment of compensation in the amount of $29,591.10 

was created.16

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA17 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. 

To determine if an individual was at fault with respect to the creation of an overpayment, 

OWCP examines the circumstances surrounding the overpayment. The degree of care expected 

may vary with the complexity of those circumstances and the individual’s capacity to realize that 

he or she is being overpaid.18

When a claimant receives benefits from SSA as part of an annuity under FERS 

concurrently with disability/wage-loss compensation, the claimant should be found without fault

 

14 See E.K., Docket No. 18-0587 (issued October 1, 2018).

15 L.M., Docket No. 19-1197 (issued January 8, 2020). 

16 See D.C., Docket No. 17-0559 (issued June 21, 2018).

17 5 U.S.C. § 8129(b). 

18 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment,

Chapter 6.300.4(d) (September 2018).
8

unless there is evidence on file that the claimant was aware that the receipt of full SSA benefits 

concurrent with disability/wage-loss compensation was prohibited.19

ANALYSIS -- ISSUE 2

The Board finds that OWCP improperly found the employee at fault in the creation of the 

overpayment for the period January 12, 2015 through November 12, 2016.

In the prior September 21, 2017 decision, OWCP’s hearing representative overturned the 

preliminary determination’s finding of fault in the overpayment claim, explaining that it was 

reasonable that the employee may not have understood that he was in receipt of dual benefits. The 

hearing representative correctly determined that the employee was not at fault in the creation of 

the overpayment because the evidence failed to establish that he knowingly accepted a payment 

which he knew to be incorrect.20 The September 21, 2017 decision further discussed and addressed 

the relevant evidence provided by the employee, including various letters he submitted, which 

established that he was unclear regarding the benefits he was receiving and attempted to correct 

the situation by advising OWCP that he wanted to elect FECA benefits if he was required to do 

so. 

The September 13, 2018 preliminary notice and the October 23, 2018 final overpayment 

decision, however, failed to consider this evidence, OWCP’s hearing representative’s prior 

finding, and its own procedures when issuing its determination that the employee was at fault in 

the creation of the overpayment for the period January 12, 2015 through November 12, 2016.21 

The Board finds that the employee was without fault in the creation of the overpayment. 

As the employee was not at fault in the creation of the overpayment for the period 

January 1, 2015 through November 12, 2016, the case will be remanded to OWCP to consider the 

issue of waiver of recovery of the overpayment. 

LEGAL PRECEDENT -- ISSUE 3

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of his 

or her federal employment.22 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.23

 

19 See J.B., Docket No. 19-1244; G.G., Docket No. 19-0684 (issued December 24, 2019) (The Board affirmed 

OWCP’s finding that, due to the complexity of SSA age-related retirement benefits administration, appellant was not 

with fault in the creation of the overpayment because he could not have reasonably known that an improper payment 

had occurred. OWCP determined that appellant was not expected to be able to calculate the amount of the offset prior 

to receipt of information for the SSA).

20 Id.

21 K.B., Docket No. 19-1332 (issued July 17, 2020).

22 5 U.S.C. § 8102(a). 

23 Id. at § 8116.
9

Section 8118(c) provides that compensation for disability does not begin until termination 

of COP or the use of annual or sick leave ends.24

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly determined that the employee received an 

overpayment of compensation in the amount of $1,446.61 because he received both wage-loss 

compensation and paid sick leave for the period December 14 through 30, 2014.

The record indicates that on June 19, 2018 the employing establishment sent OWCP a 

Form CA-7 indicating LWOP for the period December 14 through 30, 2014. In a Form CA-110 

telephone memorandum dated September 12, 2018, the employing establishment notified OWCP 

that the employee used sick leave from November 26, 2014 through January 11, 2015.25

On June 21, 2018 OWCP paid the employee wage-loss compensation for a portion of the 

period December 14 through 30, 2014, when he had previously used sick leave for the same period. 

As noted, compensation for wage loss is not payable for periods when a claimant has used sick or 

annual leave.26 Since the employee received $1,446.61 in compensation for a period when sick or 

annual leave was used, the Board will affirm the fact and amount of the overpayment.

27

LEGAL PRECEDENT -- ISSUE 4

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.28 

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.29 Additionally recovery of an 

overpayment is considered to be against equity and good conscience when an individual who 

 

24 Id. at § 8118(c).

25 The Board also notes that the evidence of record indicates that the employee’s COP period ran from 

November 27, 2014 through January 11, 2015. The record in unclear as to whether appellant’s sick leave was 

converted to COP. Nevertheless, receipt of wage-loss benefits from OWCP during the COP period also creates an 

overpayment of compensation. D.G., Docket No. 16-0281 (issued April 21, 2016). 

26 S.T., Docket No. 19-0318 (issued November 12, 2019); see also D.E., Docket No. 10-0458 (issued 

November 9, 2010).

27 Id.

28 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).

29 20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base 

increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional 

dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400.4(a)(2) (September 2018).
10

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.30

OWCP 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.31 Failure to submit the requested information 

within 30 days of the request shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished.32

ANALYSIS -- ISSUE 5

The Board finds that this case is not in posture for decision as to whether recovery of the 

overpayment should be waived. 

In the case of William A. Couch,

33 the Board held that, when adjudicating a claim, OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued.

In its October 24, 2018 decision, OWCP denied waiver of recovery finding that appellant 

failed to submit a Form OWCP-20 or supporting financial documentation. The record reflects that 

an overpayment action request submitted on October 9, 2018 by appellant contested the fact that 

the overpayment occurred, the finding of fault, and requested waiver of recovery. While appellant

did not complete or return the Form OWCP-20 or provide financial documentation, the record 

reflects that prior to his death, the employee had previously submitted this information in support 

of waiver of recovery of the overpayment. Notably, the employee submitted a completed Form 

OWCP-20 on October 27, 2017 documenting his income, expenses, and assets as specified by 

OWCP. In an accompanying letter, counsel for the employee asserted that his monthly expenses 

exceeded his income and requested waiver of the overpayment in light of the recent finding that 

he was without fault in the creation of the overpayment and the financial hardship it would cause 

him. OWCP failed to review the information submitted by the employee in support of his request 

for waiver of recovery of the overpayment, therefore, failing to follow its procedures by properly 

discussing all of the relevant evidence of record received prior to issuing the final overpayment 

decision on October 24, 2018.34

On remand OWCP shall review all evidence of record and, following any further 

development as it deems necessary, it shall issue a de novo decision.

 

30 Id. at § 10.437(a)(b).

31 Id. at § 10.438(a).

32 Id. at § 10.438(b).

33 41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

34 M.R., Docket No. 19-1626 (issued August 19, 2020).
11

LEGAL PRECEDENT -- ISSUE 5

If OWCP finds that an overpayment exists and the employee has recently passed away 

OWCP’s procedures require that steps be taken to offset the overpayment prior to recovery from 

the estate.35 These procedures provide as follows:

“Upon learning that a claimant with an existing overpayment has died, the District 

Office shall immediately contact the OPM [Office of Personnel Management] to 

determine the availability of any OPM benefits payable at the time of death that 

may be administratively offset, e.g., basic employee death benefits, survivor 

annuity benefits, or lump[-]sum refund of the deceased employee’s retirement 

contributions (5 C.F.R. § 831.1805).36

“If the claimant recently passed away, OWCP may refer the debt to FMS [Financial 

Management System] for offset of the deceased claimant’s last Federal tax refund 

under the Treasury’s Offset Program (TOP). 31 C.F.R. § 285.2. The OWCP has a 

special profile with FMS under TOP for the collection of these specific estate 

debts.”

37

ANALYSIS -- ISSUE 5

The Board finds that this case is not in posture for decision with regard to recovery of the 

overpayment debt. The evidence of record does not substantiate the actions OWCP has taken to 

recover the overpayment of debt before requiring payment in full from the employee’s estate.38 

OWCP was required to follow certain procedures to protect appellant in overpayment cases 

wherein it has knowledge that a beneficiary with an existing overpayment has died.39 In this case, 

the evidence of record does not substantiate the actions OWCP has taken to recover the 

overpayment debt through an offset from OPM benefits or through the TOP, prior to taking 

overpayment actions against the estate. The case shall therefore be remanded for OWCP to follow 

its procedures as outlined in Chapter 6.500.15 of its procedures.40 Following this and any other 

further development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

of $29,591.10, because he concurrently received FECA benefits and SSA age-related retirement 

 

35 J.P., Docket No. 18-1194 (issued April 28, 2020); see Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Recovery of an Existing Debt from a Deceased Debtor’s Estate, Chapter 6.500.15(e-f) 

(September 2018).

36 Id. at Chapter 6.500.15(f).

37 Id. at Chapter 6.500.15(e).

38 W.J., Docket No. 18-1035 (issued July 9, 2019).

39 Supra note 36. 

40 Id.; see also S.B., Docket No. 18-1420 (issued June 20, 2019).
12

benefits for the period January 12, 2015 through November 12, 2016 without an appropriate offset. 

The Board further finds that OWCP improperly found the employee at fault in the creation of the 

overpayment for the period January 12, 2015 through November 12, 2016. The Board also finds 

that OWCP properly determined that the employee received an overpayment of compensation in 

the amount of $1,446.61 for which he was without fault because he concurrently received wageloss compensation and paid sick leave for the period December 14 through 30, 2014. The Board 

further finds that this case is not in posture for decision regarding the issue of waiver of recovery 

of the $1,446.61 overpayment. The Board also finds that the case is not in posture for decision 

regarding recovery of the overpayments against the estate. 

ORDER

IT IS HEREBY ORDERED THAT the October 24 and 23, 2018 decisions of the Office 

of Workers’ Compensation Programs are affirmed in part, and set aside in part, and the case is 

remanded for further action consistent with this decision of the Board.

Issued: November 19, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board