United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.C., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE,

CHARLESTOWN NAVY YARD, Boston, MA, 

Employer

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Docket No. 19-1430

Issued: March 2, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 19, 2019 appellant filed a timely appeal from a June 5, 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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the June 5, 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

ISSUES

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

amount of $4,362.06 for the period October 1, 2018 through March 30, 2019 because he 

concurrently received FECA wage-loss compensation and Social Security Administration (SSA) 

age-related retirement benefits, for which he was not at fault; (2) whether OWCP properly denied 

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

overpayment by deducting $600.00 from appellant’s continuing compensation payments every 28 

days.

FACTUAL HISTORY

On February 27, 2007 appellant, then a 54-year-old maintenance mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on February 26, 2007 he sustained a muscle 

strain when resetting a snow plow blade while in the performance of duty. OWCP accepted the 

claim for upper back sprain and T6 compression fracture. Appellant stopped work on February 27, 

2007, returned to full-time modified work on October 15, 2007, and then stopped work again on 

October 29, 2007. OWCP paid him wage-loss compensation on the supplemental rolls as of 

April 16, 2007, and then on the periodic rolls as of May 11, 2008. 

In a Federal Employees Retirement System (FERS) Dual Benefits Calculation transmittal 

received by OWCP on March 6, 2019, SSA advised OWCP that appellant had concurrently 

received FECA benefits and age-related retirement benefits through FERS beginning 

October 2018. It provided the amount that he received in retirement benefits, including the amount 

earned through FERS and the hypothetical amount that he would have received without FERS. 

Including FERS, appellant was entitled to a monthly SSA rate of $1,848.40 effective October 2018 

and $1,900.10 effective December 2018. SSA further advised that, without FERS, appellant 

would have been entitled to a monthly SSA rate of $1,130.70 effective October 2018, and 

$1,162.30 effective December 2018. 

On April 22, 2019 OWCP calculated the FERS offset, and determined the 28-day FERS 

offset amount for the days for the period in question, which it added to find a total overpayment 

of $4,362.06 for the period October 1, 2018 to March 30, 2019. 

In a preliminary determination dated April 24, 2019, OWCP notified appellant that he had 

received an overpayment of compensation in the amount of $4,362.06 because it had failed to 

reduce his wage-loss compensation benefits for the period October 1, 2018 through March 30, 

2019 by the portion of his SSA benefits that were attributable to his federal service. It calculated 

the overpayment amount by determining the difference between his SSA amount with and without 

FERS for each period and adding these amounts to find a total overpayment of $4,362.06. OWCP 

further advised appellant of its preliminary determination that he was without fault in the creation

of the overpayment because he could not have reasonably known that it had paid compensation 

incorrectly. It requested that he complete the enclosed overpayment recovery questionnaire (Form 

OWCP-20) and provide supporting financial documentation. OWCP informed appellant that, in 

order for it to consider the question of waiver of recovery of the overpayment or to determine a 

reasonable method for repayment, he must provide a completed Form OWCP-20, and attach 

supporting financial documentation. Additionally, it notified him that, within 30 days of the date 
3

of the letter, he could request a telephone conference, a final decision based on the written 

evidence, or a prerecoupment hearing. 

On May 8, 2019 appellant requested that OWCP issue a decision based on the written 

evidence of record. He submitted a Form OWCP-20 along with his request. Appellant noted total 

monthly income of $6,200.00, $2,000.00 in a checking account, and $1,000.00 in a savings 

account. He also noted monthly expenses of $1,200.00 for mortgage/rent payments, $800.00 a 

month for food, $100.00 a month for clothing, $800.00 a month for utilities, $1,500.00 for other 

expenses, $220.00 in monthly payments for consumer debt, resulting in total monthly expenses of 

$4,620.00.

3 Appellant submitted documentation regarding his monthly rent, credit cards, as well 

as utility bills, cable bill, telephone bill, medical bills and co-payments, grocery bill, and 

automobile insurance coverage as documentation of various monthly expenses 

By decision dated June 5, 2019, OWCP finalized the April 24, 2019 preliminary 

determination that appellant had received an overpayment of compensation in the amount of 

$4,362.06 for the period October 1, 2018 through March 30, 2019 because it had failed to offset 

his compensation payments by the portion of his SSA 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 his income exceeded his expenses by more than 

$50.00. In finding that appellant’s income exceeded his expenses, OWCP explained that the 

expenses listed by appellant totaled $4,620.00, not $5,520.00 as calculated by appellant. It found 

that it would recover the overpayment by deducting $600.00 every 28 days from his continuing 

wage-loss compensation payments.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA4 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.5 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.6

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.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 

 

3 Appellant noted total monthly expenses of $5,520.00, but the total of the expenses listed only totaled $4,620.00.

4 Supra note 1.

5

Id. at § 8102(a).

6

Id. at § 8116.

7 20 C.F.R. § 10.321(d); see N.J., Docket No. 19-1170 (issued January 10, 2020); D.S., Docket No. 18-1447 (issued 

July 22, 2019); L.J., 59 ECAB 264 (2007).
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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

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $4,362.09 for the period October 1, 2018 through March 30, 

2019 because he concurrently received FECA wage-loss compensation and SSA age-related 

retirement benefits.

The overpayment was based on the evidence received from SSA with respect to age-related 

retirement benefits paid to appellant. A claimant cannot receive both FECA compensation benefits 

for wage-loss and SSA age-related retirement benefits attributable to federal service for the same 

period.9 

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 during the time period in question. The SSA provided the rate with FERS, and 

without FERS for specific periods commencing October 1 and December 1, 2018. OWCP 

provided its calculations for each relevant period based on the SSA worksheet and its April 22, 

2019 memorandum and April 24, 2019 preliminary overpayment determination. No contrary 

evidence was provided.

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

October 1, 2018 through March 30, 2019 and finds that an overpayment in the amount of 

$4,362.09 was created.10

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 

 

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

9 5 U.S.C. § 8116(d)(2); see L.M., Docket No. 19-1197 (issued January 8, 2020); L.W., Docket No. 19-0787 (issued 

October 23, 2019).

10 See L.M., id.; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued 

June 21, 2018).

11 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see N.J., supra note 7; A.F., Docket No. 

19-0054 (issued June 12, 2019).
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The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests 

within OWCP’s discretion pursuant to statutory guidelines.12

According to 20 C.F.R. § 10.436, 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 

expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by 

OWCP.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

According to 20 C.F.R. § 10.437 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.15

ANALYSIS -- ISSUE 2

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

OWCP found appellant without fault in the creation of the overpayment because he could 

not have known the amount of the SSA offset to be applied to his wage-loss compensation 

payments. The fact that a claimant is without fault in the creation of an overpayment does not 

preclude OWCP from recovering the overpayment.16 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 of be against equity and good conscience.17 In order to establish 

that repayment of the overpayment would defeat the purpose of FECA, appellant must show that 

he requires substantially all of his income to meet current ordinary and necessary living expenses 

and that his assets do not exceed the established limits as determined by OWCP procedures.18

The Board finds that OWCP properly determined that appellant did not require 

substantially all of his income to meet ordinary and necessary living expenses. Based on 

 

12 N.J., supra note 7; A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 

83 (1989).

13 20 C.F.R. § 10.436. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment 

Determinations, Chapter 6.400.4(a)(2) (September 2018); L.C., Docket No. 19-0320 (issued July 26, 2019); B.F.

Docket No. 13-0784 (issued September 20, 2013).

14 M.A., Docket No. 18-1666 (issued April 26, 2019); id. at Chapter 6.400.4(a)(3).

15 20 C.F.R. § 10.437(a), (b).

16 See D.H., Docket No. 19-0384 (issued August 12, 2019): V.H., Docket No. 18-1124 (issued January 16, 2019).

17 Id. at 10.436; see also G.L., Docket No. 19-0297 (issued October 23, 2019).

18 Supra note 14.
6

appellant’s May 8, 2019 overpayment recovery questionnaire and the record, as his monthly 

income of $6,200.00 exceeded his ordinary and necessary living expenses of $4,620.00 by more 

than $50.00, he did not need substantially all of his income for ordinary and necessary living 

expenses.19

Additionally, the evidence does not demonstrate that recovery of the overpayment would 

be against equity and good conscience. Appellant did not submit evidence to substantiate that he 

would experience severe financial hardship in attempting to repay the debt, or that in reliance on 

such payment he gave up a valuable right or changed his position for the worse. Therefore, OWCP 

properly found the recovery of the overpayment would not defeat the purpose of FECA or be 

against equity or good conscience.

Accordingly, the Board finds that OWCP properly denied waiver of recovery of the 

overpayment.

LEGAL PRECEDENT -- ISSUE 3

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 the error is discovered or his attention is called to the same.20 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.21

ANALYSIS -- ISSUE 3

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

$600.00 every 28 days from appellant’s continuing compensation payments.

OWCP found that appellant had total monthly income of $6,200.00 and monthly expenses 

of $4,620.00. It found that his monthly income exceeded his expenses by $1,580.00, which could 

be applied for debt repayment each month. OWCP gave due regard to the relevant factors noted 

above and did not abuse its discretion in setting the rate of recovery.22 The Board thus finds that 

it properly required recovery of the overpayment by deducting $600.00 from appellant’s 

continuing compensation payments.

 

19 G.L., supra note 17.

20 20 C.F.R. § 10.441.

21 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.2(a)

(September 2018).

22 See L.M., supra note 9; T.G., Docket No. 17-1989 (issued June 6, 2018).
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CONCLUSION

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

$4,362.09 for the period October 1, 2018 through March 30, 2019 because he concurrently 

received SSA age-related retirement benefits while receiving FECA benefits, for which he was 

without fault. The Board further finds that OWCP properly denied waiver of recovery of the 

overpayment and properly required recovery of the overpayment by deducting $600.00 every 28 

days from his continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the June 5, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 2, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board