United States Department of Labor

Employees’ Compensation Appeals Board

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J.C., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

ALCOHOL, TOBACCO, FIREARMS & 

EXPLOSIVES, Walnut Creek, CA, Employer

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Docket No. 20-1062

Issued: January 4, 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 March 30, 2020 appellant filed a timely appeal from a February 6, 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.2

ISSUES

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

of compensation in the amount of $22,845.76, for which he was not at fault, because he 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the February 6, 2020 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

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

(SSA) age-related retirement benefits for the period July 1, 2017 through September 14, 2019 

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

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

$225.79 every 28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On November 1, 1995 appellant, then a 44-year-old explosives enforcement officer, filed 

an occupational disease claim (Form CA-2) alleging that he developed post-traumatic stress due 

to factors of his federal employment. OWCP accepted the claim for post-traumatic stress disorder, 

adjustment reaction with physical symptoms, and major depression, recurrent episode, severe. It 

paid appellant wage-loss compensation on the periodic rolls, effective February 2, 1997. 

In an EN1032 form dated July 26, 2016, appellant indicated that he received SSA agerelated retirement benefits in the amount of $846.00 monthly. On EN1032 forms dated 

September 20, 2017 through July 25, 2019, he indicated that he did not receive SSA age-related 

retirement benefits. 

On August 8, 2019 OWCP provided SSA with a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form. 

On August 15, 2019 an SSA representative provided OWCP with a FERS/SSA dual benefit 

calculation worksheet. The SSA representative provided corresponding monthly SSA benefit rates 

beginning July 2017 with and without appellant’s FERS contributions. The form indicated that 

beginning July 1, 2017, the SSA rate with FERS was $1,912.30 and without FERS was $1,074.70. 

Beginning December 1, 2017, the SSA rate with FERS was $1,950.50 and without FERS was 

$1,096.10. Beginning December 1, 2018, the SSA rate with FERS was $2,005.10 and without 

FERS was $1,126.70. 

On September 18, 2019 OWCP prepared a FERS offset calculation worksheet. It noted 

the calculation of appellant’s SSA offset overpayment from July 1, 2017 through 

September 14, 2019. The total overpayment was determined to be $22,845.76. OWCP found that 

appellant received an overpayment of compensation in the amount of $4,224.82 for the period 

July 1 through November 30, 2017, an overpayment in the amount of $10,280.97 for the period 

December 1, 2017 through November 30, 2018, and an overpayment in the amount of $8,339.97

for the period December 1, 2018 through September 14, 2019. 

In a letter dated October 7, 2019, OWCP notified appellant that, based on information 

provided by SSA regarding the amount of his age-related retirement benefits, which were 

attributable to federal service, his FECA wage-loss compensation had been adjusted. 

On December 31, 2019 OWCP issued a preliminary determination finding that an 

overpayment of compensation in the amount of $22,845.76 had been created because appellant 

received SSA age-related retirement benefits based upon his federal service, without appropriate 

offset at the same time he received FECA benefits for the period July 1, 2017 through 

September 14, 2019. It explained that the overpayment occurred because he relied on 

misinformation given in writing by OWCP as to the interpretation of FECA or its regulations, there 
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was documentation to substantiate that the misinformation was communicated to him, and there 

was no evidence in the case file to demonstrate that he knew or should have known the proper 

course of action to be followed. OWCP found appellant not at fault in the creation of the 

overpayment and forwarded an overpayment action request form and an overpayment recovery 

questionnaire (Form OWCP-20). It requested that he provide supporting financial documentation 

including income tax returns, bank account statements, bills and cancelled checks, pay slips, and 

any other records to support his reported income and expenses. OWCP afforded appellant 30 days 

to respond. No response was received. 

By decision dated February 6, 2020, OWCP finalized its preliminary determination that 

appellant had received an overpayment of compensation in the amount of $22,845.76, for the 

period July 1, 2017 through September 14, 2019, because it had failed to offset his compensation 

payments by the portion of his SSA age-related retirement benefits that were attributable to federal 

service. It further found that he was without fault in the creation of the overpayment, but denied 

waiver of recovery of the overpayment because the evidence of record was insufficient to establish 

that recovery of an overpayment would defeat the purpose of FECA or would be against equity 

and good conscience. OWCP required recovery of the overpayment by deducting $225.79 every 

28 days from appellant’s continuing compensation payments. 

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 OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $22,845.76, for which he was without fault, because he 

 

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

concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for 

the period July 1, 2017 through September 14, 2019 without an appropriate offset.

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

benefits, he was also receiving SSA age-related retirement benefits attributable to federal service. 

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.7 Consequently, the fact of 

the overpayment has been established.

To determine the amount of the overpayment, the portion of the 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. SSA provided the SSA rate with FERS and without FERS for specific periods 

commencing July 1, 2017 through September 14, 2019. OWCP provided its overpayment 

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 July 1, 2017 through September 14, 2019, and finds that an overpayment of compensation 

in the amount of $22,845.76 was created.8

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the 

United States may not be made when incorrect payment has been made to an individual who is 

without fault and when adjustment or recovery would defeat the purpose of this subchapter or 

would be against equity and good conscience.”

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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.10 An individual is deemed to need 

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

 

7 See I.U., Docket No. 20-0129 (issued July 31, 2020).

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Id.

9 5 U.S.C. § 8129(b).

10 20 C.F.R. § 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). 
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if monthly income does not exceed monthly expenses by more than $50.00.11 Also, 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.12 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.13

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

an individual who 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.14

OWCP’s 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.15

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the overpayment.

As OWCP found appellant not at fault in the creation of the overpayment, waiver of 

recovery of the overpayment 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.16 However, appellant had the responsibility to provide financial information to 

OWCP,17 but failed to do so.

In its preliminary determination, dated December 31, 2019, OWCP requested that appellant 

provide a completed Form OWCP-20 and supporting financial documentation, including copies of 

income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other 

records to support income and expenses. It advised him that it would deny waiver of recovery if 

he failed to furnish the requested financial information within 30 days. Appellant did not provide 

the requested Form OWCP-20 or submit any financial information necessary for OWCP to 

 

11 Id. at Chapter 6.400.4(a)(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued 

January 10, 2020).

12 See supra note 10 at Chapter 6.400.4(a)(2) (September 2018).

13 Id. at Chapter 6.400.4(b)(3).

14 Id. at § 10.437(a)(b).

15 Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16 Id. at § 10.436.

17 Id. at § 10.438; S.P., Docket No. 19-1318 (issued July 31, 2020).
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determine if recovery of the overpayment would defeat the purpose of FECA or be against equity 

and good conscience.

Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438 

of OWCP’s regulations to determine his eligibility for waiver, OWCP properly denied waiver of 

recovery of the overpayment.

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.18

Section 10.441 of OWCP’s regulations19 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 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 any hardship.20

ANALYSIS -- ISSUE 3

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

$225.79 every 28 days from appellant’s continuing compensation payments.

OWCP provided appellant a Form OWCP-20 with its December 31, 2019 preliminary 

determination. It afforded him the opportunity to provide appropriate financial information and 

documentation to OWCP. Appellant however, did not complete the Form OWCP-20 or otherwise 

provide the necessary financial information to support his income and expenses prior to the final 

February 6, 2020 overpayment decision. The overpaid individual is responsible for providing 

information about income, expenses, and assets as specified by OWCP.21 When an individual fails 

to provide requested financial information, OWCP should follow minimum collection guidelines 

designed to collect the debt promptly and in full.22 As appellant did not submit financial as 

requested, the Board finds that OWCP properly required recovery of the $22,845.76 overpayment 

at the rate of $225.79 every 28 days from appellant’s continuing compensation payments.23

 

18 Id. at § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

19 Id. at § 10.441(a).

20 Id.; see L.G., Docket No. 19-1274 (issued July 10, 2020).

21 20 C.F.R. § 10.438(a).

22 See J.A., Docket No. 19-1946 (issued July 13, 2020); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) 

Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.2 (September 2018).

23 See J.A., id.; E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued 

March 2, 2017).
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CONCLUSION

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

of compensation in the amount of $22,845.76, for which he was without fault, because he 

concurrently received FECA wage-loss compensation benefits and SSA age-related retirement 

benefits for the period July 1, 2017 through September 14, 2019 without an appropriate offset. 

The Board further finds that OWCP properly denied waiver of recovery of the overpayment and 

properly required recovery of the overpayment by deducting $225.79 every 28 days from his 

continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the February 6, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 4, 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