United States Department of Labor

Employees’ Compensation Appeals Board

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E.T., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

El Paso, TX, Employer

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Docket No. 19-1977

Issued: February 22, 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

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On September 30, 2019 appellant filed a timely appeal from an August 26, 2019 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.2

ISSUES

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

overpayment of compensation in the amount of $3,446.08, for which he was not at fault, because 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the August 26, 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.
2

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

Administration (SSA) age-related retirement benefits for the period February 6 through May 25, 

2019 without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the 

overpayment. 

FACTUAL HISTORY

On December 21, 2018 appellant, then a 77-year-old customs border patrol officer, filed a 

traumatic injury claim (Form CA-1) alleging that on December 20, 2018 he injured his lower back 

and buttocks when he slipped on steps while in the performance of duty. His retirement coverage 

was noted as federal employee retirement system (FERS). OWCP accepted the claim for 

spondylosis without myelopathy or radiculopathy, lumbar region; and unspecified fracture of 

unspecified lumbar vertebra closed fracture. It paid appellant wage-loss compensation on the 

supplemental rolls effective February 6, 2019 and on the periodic compensation rolls effective 

March 31 through August 17, 2019. 

On March 28, 2019 OWCP requested information from SSA regarding appellant’s dual 

FERS/SSA benefits.

On April 22, 2019 OWCP received a completed FERS/SSA dual benefits calculation form 

from SSA dated April 17, 2019, wherein SSA indicated that appellant’s SSA age-related 

retirement benefit rates with and without a FERS offset. The form indicated that the SSA rate with 

FERS was $2,675.60 and SSA rate without FERS was $1,716.60 effective February 1, 2019. On 

May 26, 2019 OWCP adjusted appellant’s compensation based on the FERS offset.

On June 3, 2019 OWCP completed a FERS offset calculation form. It determined the 28-

day FERS offset amount for the days in each period and computed a total overpayment of 

$3,604.15 for the period February 1 through May 25, 2019. 

A June 6, 2019 FERS offset calculation form indicated that during the 109 days from 

February 6 to May 25, 2019 appellant received an overpayment in the amount of $3,446.08. In a 

June 6, 2019 manual adjustment form, OWCP determined that for the period February 6 through 

May 25, 2019, appellant received an overpayment due to FERS offset of $3,446.08. 

On July 24, 2019 OWCP notified appellant of its preliminary determination that he 

received an overpayment of compensation in the amount of $3,446.08 for the period February 6 

through May 25, 2019 as he had received FECA wage-loss compensation and SSA age-related 

retirement benefits without an appropriate offset, and that this portion of his SSA benefit was a 

prohibited dual benefit. It included copies of the FERS offset calculation form for the period 

February 6 through May 25, 2019 and its manual adjustment form both dated June 6, 2019 setting 

forth the claimed basis of the overpayment. OWCP also informed appellant of its preliminary 

determination that he was without fault in the creation of the overpayment. It provided him with 

an overpayment action request form and an overpayment recovery questionnaire (Form 

OWCP-20). OWCP notified appellant that, within 30 days of the date of the letter, he could request 

a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing. 
3

On August 22, 2019 OWCP received appellant’s August 12, 2019 request for waiver of 

recovery of the overpayment and an August 12, 2019 completed Form OWCP-20. Appellant 

alleged that having to repay the overpayment would create a financial hardship on him and his 

family. Copies of financial documents including 1040 tax forms for the years 2016, 2017, 2018, 

electric bills, car payments, credit card bills, a mortgage statement, and earning and leave 

statements were submitted.

By decision dated August 26, 2019, OWCP finalized the overpayment determination, 

finding that appellant received an overpayment of wage-loss compensation in the amount of 

$3,446.08 from February 6 through May 25, 2019 because it had failed to deduct SSA age-related 

retirement benefits from his compensation for that period. It also affirmed the finding that he was 

without fault in the creation of the overpayment as, due to the complexity in benefits 

administration, he could not have reasonably known that an improper payment occurred. OWCP 

required that appellant forward the entire amount as repayment, summarily concluding that there 

was no evidence of record to substantiate waiver of recovery of the overpayment. 

LEGAL PRECEDENT -- ISSUE 1

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

disability or death of an employee resulting from personal injury sustained while in the 

performance of his or her duty.3 Section 8116 limits the right of an employee to receive 

compensation. While an employee is receiving compensation, he or she may not receive salary, 

pay, or remuneration of any type from the United States.4

Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the 

amount of compensation by the amount of any SSA age-related retirement benefits that are 

attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 provides that FECA 

benefits have to be adjusted for the FERS portion of SSA age-related retirement 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.6

ANALYSIS -- ISSUE 1

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

$3,446.08 because he concurrently received FECA wage-loss compensation benefits and SSA agerelated retirement benefits for the period February 6 through May 25, 2019 without an appropriate 

offset.

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued 

October 23, 2019).

6 FECA Bulletin No. 97-09 (February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020).
4

The record indicates that, while appellant was receiving wage-loss compensation under 

FECA, he also received SSA age-related retirement benefits attributable to his federal service 

during the relevant period. A claimant cannot receive both compensation for wage loss and SSA 

age-related retirement benefits attributable to federal service for the same period.7 Consequently, 

the fact of the overpayment has been established.

To determine the amount of the overpayment, the portion of SSA 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 the SSA rate with FERS and without FERS for the period 

February 1 through May 25, 2019. OWCP provided its calculations of the amount that should 

have been offset during the relevant period based on information provided by SSA for the period 

February 6 through May 25, 2019 in its July 24, 2019 preliminary overpayment determination. No 

contrary evidence was received. 

The Board has reviewed OWCP’s calculation of benefits received by appellant for the 

period February 6 through May 25, 2019 and finds that an overpayment of compensation in the 

amount of $3,446.08 was created.8

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in 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.9 Section 10.438 of OWCP’s 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 of 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.10

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’s regulations.11 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 income (including compensation benefits) to meet current ordinary 

and necessary living expense, and, also, if the beneficiary’s assets do not exceed a specified amount 

 

7 See N.B., Docket No. 20-0727 (issued January 26, 2021); D.M., Docket No. 19-1369 (issued June 30, 2020).

8 See N.B., id.; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

9 5 U.S.C. § 8129.

10 20 C.F.R. § 10.438.

11 Id. at §§ 10.434-10.437.
5

as determined by OWCP from data provided by the Bureau of Labor Statistics.12 For waiver of 

recovery of the overpayment 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.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

ANALYSIS -- ISSUE 2

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,

15 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 August 26, 2019 decision, OWCP denied waiver of recovery finding that there was 

no evidence to substantiate waiver. However, the record reflects that on August 22, 2019 it

received appellant’s request for waiver of the overpayment and a completed Form OWCP-20. 

Notably, appellant documented his income, expenses, and assets as specified by OWCP on his 

Form OWCP-20 and submitted financial information. He also alleged that having to repay the 

overpayment would create a financial hardship for himself and his family. OWCP failed to review 

the information submitted by appellant 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 August 26, 2019.16

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.

 

12 Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her 

current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment 

Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not 

exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus 

$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).

13 Id.

14 Id.

15 41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

16 All evidence submitted should be reviewed and discussed in the decision. Whenever possible, the evidence 

should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter 

2.1401.5(b)(2) (November 2012); see P.H., (K.H.), Docket No. 19-1130 (issued November 19, 2020); M.R., Docket 

No. 19-1626 (issued August 19, 2020).
6

CONCLUSION

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

$3,446.08 because he concurrently received FECA wage-loss compensation benefits and SSA agerelated retirement benefits for the period February 6 through May 25, 2019 without an appropriate 

offset. The Board further finds that this case is not in posture for decision regarding the issue of 

waiver of recovery of the $3,446.08 overpayment.

ORDER

IT IS HEREBY ORDERED THAT the August 26, 2019 decision of the Office of 

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

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

Issued: February 22, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board