United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

M.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

San Francisco, CA, Employer

__________________________________________

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Docket No. 20-0068

Issued: May 14, 2021

Appearances: Case Submitted on the Record

Eddie Reyna, 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 8, 2019 appellant, through her representative, filed a timely appeal from an

April 30, 2019 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.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 appellant submitted additional evidence on appeal. 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $112,567.28, compromised to $25,000.00, for 

which she was without fault, because she concurrently received FECA wage-loss compensation 

and Social Security Administration (SSA) age-related retirement benefits for the period July 1, 

2011 through February 2, 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 $165.44 from appellant’s continuing compensation payments every 28 

days.

FACTUAL HISTORY

On October 10, 1995 appellant, then a 47-year-old clerk, filed an occupational disease 

claim (Form CA-2) alleging that she developed tendinitis in both wrists, elbows, and shoulders 

due to factors of her federal employment. She noted that she first became aware of her condition 

on September 25, 1995. A January 31, 2013 notification of personnel action (PS Form 50) noted 

appellant’s retirement plan as Federal Employees Retirement System (FERS). 

OWCP accepted the claim for right shoulder neck bursitis and right lateral epicondylitis. 

It initially paid appellant wage-loss compensation on the supplemental rolls, and then paid her on

the periodic rolls as of September 30, 2009. 

On January 30, 2019 OWCP forwarded a FERS/SSA benefits calculation worksheet to the 

SSA to obtain information necessary for a determination of whether an offset of compensation 

benefits was required. 

On February 7, 2019 OWCP received from SSA a February 1, 2019 FERS/SSA dual 

benefits calculation which indicated that appellant had been in receipt of SSA age-related 

retirement benefits since July 2011. The form showed appellant’s SSA benefit rates with and 

without a FERS offset as follows: beginning July 2011, the SSA rate with FERS was $1,290.90 

and without FERS was $146.60; beginning December 2011, the SSA rate with FERS was 

$1,337.40 and without FERS was $151.90; beginning December 2012, the SSA rate with FERS 

was $1,360.10 and without FERS was $154.40; beginning December 2013, the SSA rate with 

FERS was $1,380.40 and without FERS was $156.70; beginning January 2014, the SSA rate with 

FERS was $1,383.00 and without FERS was $156.70; beginning December 2014 to 

November 2016, the SSA rate with FERS was $1,406.50 and without FERS was $159.30;

beginning December 2016, the SSA rate with FERS was $1,410.60 and without FERS was 

$159.70; beginning December 2017, the SSA rate with FERS was $1,438.80 and without FERS 

was $162.80; and beginning December 2018, the SSA rate with FERS was $1,479.10 and without 

FERS was $167.40. 

OWCP completed a FERS offset calculation worksheet on February 14, 2019. It calculated 

the overpayment amount by determining the daily FERS offset amount and multiplying that 

amount by the number of days in each period July 1, 2011 through February 2, 2019, resulting in 

a total overpayment of $112,567.28. The form indicated that: from July 1 through November 30, 

2011, appellant received an overpayment in the amount of $5,771.80; from December 1, 2011

through November 30, 2012, she received an overpayment in the amount of $14,304.16; from 
3

December 1, 2012 through November 30, 2013, she received an overpayment in the amount of 

$14,508.15; from December 1 through 31, 2013, she received an overpayment in the amount of 

$1,250.59; from January 1 through November 30, 2014, she received an overpayment in the 

amount of $13,502.78; from December 1, 2014 through November 30, 2016, she received an 

overpayment in the amount of $30,056.15; from December 1, 2016 through November 30, 2017, 

she received an overpayment in the amount of $15,052.04; from December 1, 2017 through

November 30, 2018, she received an overpayment in the amount of $15,354.57; and from 

December 1, 2018 through February 2, 2019, she received an overpayment in the amount of 

$2,767.54. 

In a February 13, 2019 letter, OWCP informed appellant that it would begin deducting the 

portion of SSA age-related retirement benefits attributable to her federal service from her 28-day 

periodic compensation benefits. It noted that her gross FECA 28-day compensation benefit of 

$1,984.00, would be offset by her SSA benefit of $1,210.80, to a 28-day compensation benefit of 

$772.20. 

On February 26, 2019 OWCP issued a preliminary overpayment determination, finding 

that an overpayment of compensation in the amount of $112,567.28 had been created because it 

had failed to reduce appellant’s wage-loss compensation payments for the period July 1, 2011 

through February 2, 2019 to offset her SSA age-related retirement benefits that were attributable 

to federal service. It also determined that she was without fault in the creation of the overpayment.

OWCP requested that appellant submit a completed overpayment recovery questionnaire (Form 

OWCP-20) to determine a reasonable repayment method and advised her that she could request a 

waiver of the overpayment. It further requested that she 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 further notified 

appellant that, within 30 days of the date of the letter, she could request a telephone conference, a 

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

On March 22, 2019 appellant’s representative requested additional time to complete the 

Form OWCP-20 and noted that appellant wished to contest the overpayment. 

On April 8, 2019 OWCP received a partially completed Form OWCP-20 dated

April 8, 2019. Appellant’s income was listed as $1,439.00 in SSA benefits, $661.00 in 

Supplemental Security Income (SSI) benefits for a total monthly income of $2,100.00. Her

expenses were listed as: rent or mortgage $527.00, food $1,200.00, clothing $300.00, utilities 

$300.00, and other expenses $900.00 for total monthly expenses of $3,227.00. 

On April 9, 2019 OWCP received appellant’s April 6, 2019 Form OWCP-20. Appellant 

requested waiver of recovery of the overpayment and argued that she was without fault. She 

alleged that she would have elected to receive SSA benefits from her husband’s account had she 

known that her SSA benefits would be offset. Appellant argued that OWCP should have known 

that she was receiving both FECA benefits and SSA benefits which she had noted in her Form 

CA-1032 forms. In the Form OWCP-20 she listed her monthly income of $2,129.00 in SSA

benefits and $1,439.00 in SSA benefits. Appellant listed her monthly expenses as $527.00 for 

mortgage, $1,200.00 for food, $300.00 for clothing, $300.00 for utilities, and $900.00 for other 

expenses. She did not list any cash on hand, or other assets. Appellant submitted documentation 

which included a statement from her bank related to a settlement trade in the amount of $25,000.00
4

on December 18, 2018, checking account summary dated January 31, 2019 which listed a balance 

of $24,823.80, a checking account summary dated February 28, 2019 which listed a balance of 

$27,984.98, and a certificate of deposit dated April 24, 2018 in the amount of $10,000.00. 

In an April 30, 2019 memorandum to file, OWCP explained that it would compromise the

overpayment principal. It explained that, after reducing the $112,567.28 principal owed by 

$87,567.28, OWCP arrived at a compromise figure of $25,000.00 that appellant could repay in her 

expected lifetime, by August 31, 2031. OWCP noted that she requested a waiver and after a 

review, it was determined that a waiver could not be granted. It further explained that the 

Procedure Manual dictated that appellant repay the overpayment by deducting 25 percent of the 

net amount of her 28-day continuing compensation payments, which resulted in a monthly 

repayment amount of $165.44. 

By decision dated April 30, 2019, OWCP finalized the February 26, 2019 preliminary 

overpayment determination. It found that appellant had received an overpayment of compensation 

in the amount of $112,567.28, which was reduced to $25,000.00 by compromise. OWCP further 

found that she was not at fault in the creation of the overpayment, but denied waiver of recovery

of the overpayment. It required recovery by deducting $165.44 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 of an employee resulting from personal injury sustained while in the performance of his 

or her federal employment.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 When an overpayment of compensation has 

been made to an individual because of an error of fact or law, adjustment shall be made under 

regulations prescribed by the Secretary of Labor by decreasing later payments to which the 

individual is entitled.6

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

amount of compensation by the amount of SSA age-based benefits that are attributable to federal 

service of the employee.7 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.8

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7 20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

8 FECA Bulletin No. 97-09 (February 3, 1997).
5

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $112,567.28, compromised to $25,000.00, for which she was 

without fault, because she concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period July 1, 2011 through February 2, 2019, without an 

appropriate offset.

The evidence of record indicates that, while appellant was receiving wage-loss 

compensation benefits under FECA, she also was receiving SSA age-related retirement benefits 

based upon her federal service. A claimant cannot receive both compensation for wage-loss 

compensation benefits under FECA and SSA age-related retirement benefits attributable to federal 

service for the same period.9 The information provided by SSA established that appellant received 

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

July 1, 2011 through February 2, 2019. Consequently, the fact of overpayment has been 

established.10

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 amounts of SSA age-related retirement benefits that were attributable to 

federal service. SSA provided its benefit rates with FERS and without FERS for specific periods 

from July 1, 2011 through February 2, 2019. OWCP provided its calculations for each relevant 

period based on the SSA worksheet and properly determined that appellant received an 

overpayment of compensation in the amount of $112,567.28, compromised to $25,000.00.

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

amount of $112,567.28, compromised to $25,000.00, for the period July 1, 2011 through 

February 2, 2019.

LEGAL PRECEDENT -- ISSUE 2

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.11 

Thus, a finding that appellant was without fault does not automatically result in waiver of the 

overpayment. OWCP must then exercise its discretion to determine whether recovery of the 

overpayment would defeat the purpose of FECA or would be against equity and good conscience.12

 

9

Id.

10 P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020); 

A.F., Docket No. 19-0054 (issued June 12, 2019).

11 5 U.S.C. § 8129(a)-(b).

12 L.S., 59 ECAB 350 (2008). 20 C.F.R. § 10.436. OWCP’s procedures provide that the 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. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment 

Determinations, Chapter 6.400.4a (3) (September 2018).
6

Section 10.437 of OWCP’s implementing regulations provides that 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 attempting to repay the debt

and when an 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.13 

Section 10.438 of the implementing 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 on 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.14 Failure to submit 

the requested information within 30 days of the request shall result in denial of waiver.15

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.16 

In its preliminary overpayment determination dated February 26, 2019, OWCP clearly 

explained the importance of providing the completed overpayment questionnaire and supporting 

financial documentation, including copies of income tax returns, bank account statements, bills, 

pay slips, and any other records to support income, expenses and assets. 

Appellant’s representative submitted an incomplete Form OWCP-20 on April 8, 2019. 

Appellant submitted a second Form OWCP-20 on April 9, 2019; however, this form was also 

incomplete as she did not list any assets. While she did submit some supporting documentation 

regarding assets, OWCP could not determine the actual amount of her assets as she did not 

complete this section of the Form OWCP -20. As appellant did not submit the information required 

under section 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for 

waiver, OWCP properly denied waiver of recovery of the overpayment.17

 

13 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

14 Id. at § 10.438(a).

15 Id. at § 10.438.

16 Id. at § 10.436.

17 D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued March 2, 2017). 
7

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(a) of OWCP’s regulations19 provides in pertinent part:

“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 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

Under OWCP’s procedures, the compromise of all or part of the overpayment and any 

charges may be made depending upon the individual claimant’s financial circumstances in order 

to set a repayment schedule. Such a determination is made at the time the repayment schedule is 

established.21 Compromise is a matter which rests in the discretion of OWCP and is not subject 

to review by the Board.

22

ANALYSIS -- ISSUE 3

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

$165.44 every 28 days from appellant’s continuing compensation payments.

OWCP gave due regard to the financial information submitted, as well as the factors set 

forth in 20 C.F.R. § 10.441, including the compromised overpayment amount, and found that this 

method of recovery would minimize resulting hardship.23 Therefore, it properly required recovery 

of the overpayment by deducting $165.44 every 28 days from appellant’s continuing compensation 

benefits.

CONCLUSION

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

of compensation in the amount of $112,567.28, compromised to $25,000.00, for which she was 

without fault, because she concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period July 1, 2011 through February 2, 2019, without an 

 

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

19 Id. at § 10.441(a).

20 Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

21 Supra note 12 at Chapter 6.100.6 (September 2018).

22 Id.

23 M.B., Docket No. 20-1578 (issued March 25, 2021).
8

appropriate offset; and that OWCP properly denied waiver of recovery of the overpayment. 

OWCP also found that OWCP properly required recovery of the overpayment by deducting 

$165.44 from her continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the April 30, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 14, 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