United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.K., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

New York, NY, Employer

__________________________________________

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Docket No. 20-1190

Issued: January 8, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

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 May 22, 2020 appellant filed a timely appeal from a November 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 to 

consider 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 $31,339.05, for which he was without fault, 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the November 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

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

Administration (SSA) age-related retirement benefits for the period March 1, 2017 through 

June 22, 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 $300.00 every 28 days from appellant’s continuing compensation 

payments.

FACTUAL HISTORY

On October 9, 2001 appellant then a 52-year-old import specialist, filed a traumatic injury 

claim (Form CA-1) alleging that he developed post-traumatic stress syndrome while in the 

performance of duty as a result of the terrorist attack on the World Trade Center on 

September 11, 2001. OWCP accepted his claim for acute post-traumatic syndrome. Appellant 

stopped work on September 11, 2001. OWCP paid him wage-loss compensation on the periodic 

rolls effective June 16, 2002. 

On EN1032 forms dated March 22 and May 10, 2017, April 6, 2018, and March 18, 2019, 

appellant responded “No” indicating that he was not receiving SSA age-related retirement benefits 

as part of an annuity for federal service. On an EN1032 form dated March 18, 2019, he indicated 

that he was in receipt of “SSA regular retirement age 65.” 

On May 29, 2019 OWCP received a completed Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form from SSA wherein SSA advised that, effective 

March 2017, appellant reached normal retirement age and became eligible for SSA age-related 

retirement benefits. It noted that since appellant’s retirement coverage was under FERS, his

compensation benefits must be offset by any part of his SSA benefit that was calculated by using 

his federal employment earnings. SSA calculated SSA age-related retirement benefit rates with 

FERS offset and without a FERS offset from March 1, 2017 through December 1, 2018. Beginning 

March 2017, the SSA rate with FERS was $1,173.00 and without FERS was $69.00. Beginning 

December 2017, the SSA rate with FERS was $1,196.00 and without FERS was $70.00. 

Beginning December 2018, the SSA rate with FERS was $1,229.50 and without FERS was $72.50. 

On June 26, 2019 OWCP prepared a FERS offset calculation worksheet wherein it noted 

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

December 1, 2018. The total overpayment was determined to be $31,339.05.

On July 5, 2019 OWCP issued a preliminary overpayment determination, finding that an 

overpayment of compensation in the amount of $31,339.05 had been created because appellant 

received SSA age-related retirement benefits from March 1, 2017 through June 22, 2019 that were 

partially based on credits earned while working in the Federal Government, which constituted a 

prohibited dual benefit. It determined that he 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 payment method, and advised him that he could request 

waiver of recovery of the overpayment. It further requested that he provide supporting financial 

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

checks, pay slips, and any other records which support income and expenses. Additionally, OWCP
3

further 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.

On August 1, 2019 appellant completed an overpayment action request form and requested 

a prerecoupment hearing. In an attached statement, he noted disagreement that an overpayment 

occurred and the amount of the overpayment, requesting waiver because he was found to be 

without fault in the creation of the overpayment. 

In a Form OWCP-20 completed on August 1, 2019, appellant reported that his total 

monthly income included $1,094.00 from SSA and FECA benefits of $2,808.38, resulting in total 

monthly income of $3,902.38. He reported expenses totaling $3,892.92. Appellant indicated 

monthly expenses of $1,693.77 for rent, $950.00 for food, $50.00 for clothing, $305.38 for utilities, 

and $500.00 for other expenses. He also noted monthly credit card debt installment payments 

totaling $393.77. Appellant further noted a checking account balance of $6,541.08. He attached 

financial information including bank statements, utility bills, and credit card bills. No further 

documentation regarding income or expenses was received.

On October 22, 2019 appellant attended a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review.

3

By decision dated November 26, 2019, OWCP finalized the preliminary overpayment 

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

of $31,339.05 for the period March 1, 2017 through June 22, 2019, because it failed to offset his

compensation payments by the portion of his SSA age-related retirement benefits that were 

attributable to his 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 

failed to establish that recovery of an overpayment would defeat the purpose of FECA or be against 

equity and good conscience. OWCP required recovery of the overpayment by deducting $300.00 

every 28 days from his 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.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

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 

 

3 During the hearing appellant testified that his corrected monthly rent expense was $1,719.18.

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.
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attributable to the employee’s federal service.6 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 

age-related retirement benefits 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.7

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $31,339.05, for which he was without fault, because he 

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

the period March 1, 2017 through June 22, 2019, without an appropriate offset.

The record supports that appellant received FECA wage-loss compensation for total 

disability beginning in June 16, 2002, and that he received SSA age-related retirement benefits 

beginning March 2017. As noted, a claimant cannot receive concurrent FECA compensation for 

wage-loss and SSA retirement benefits attributable to federal service for the same period.8 The 

information provided by SSA established that appellant had received SSA age-related retirement 

benefits that were attributable to his federal service commencing March 1, 2017. Thus, the record 

establishes that he received an overpayment of FECA wage-loss compensation.9

To determine the amount of the overpayment, the portion of the SSA age-related retirement 

benefits that were attributable to federal service must be calculated. OWCP received 

documentation from SSA with respect to appellant’s specific SSA age-related retirement benefits 

that were attributable to federal service. SSA provided its rate with FERS and without FERS for 

specific periods March 1, 2017 through June 22, 2019. OWCP provided its calculations for each 

relevant period based on SSA’s worksheet and determined that he received an overpayment in the 

amount of $31,339.05. The Board thus finds that appellant received prohibited dual benefits for 

the period March 1, 2017 through June 22, 2019 totaling $31,339.05.

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.10

 

6 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

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

8 20 C.F.R. § 10.421(d); S.M., Docket No. 17-1802 (issued August 20, 2018); supra note 6; L.D., Docket No. 

19-0606 (issued November 21, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019). 

9

Id.

10 5 U.S.C. § 8129.
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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.11 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 $50.00.12 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.13 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.14

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

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.16

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.17

 

11 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(2), (3) (September 2018).

12 Federal (FECA) Procedure Manual, id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 

2020); M.A., Docket No. 18-1666 (issued April 26, 2019).

13 See Federal (FECA) Procedure Manual, supra note 11 at Chapter 6.400.4(a)(2) (September 2018).

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

15 20 C.F.R. § 10.437(a)(b).

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

17 5 U.S.C. § 8129.
6

Evidence in the case record shows that appellant has income totaling $3,902.38. Form 

OWCP-20 listed expenses as $1,719.18 for rent; $950.00 for food; $50.00 for clothing; $305.38 

for utilities, $393.77for various credit card debt, and $500.00 for other expenses. Appellant 

testified that the $500.00 allocated for other expenses represented cash items, laundry, 

transportation, going out, and buying books. As these other expenses were not supported by billing 

statements or receipts and not clearly delineated this amount cannot be considered.

Based upon the information provided on the Form OWCP-20, and evidence received after 

the hearing, appellant’s household income totaled $3,902.38 while his expenses totaled $2,868.49. 

As his monthly income exceeds his monthly expenses by $1,033.89, appellant does not need 

substantially all of his monthly income to meet current and ordinary living expenses.

The Board further finds that appellant has not established that recovery of the overpayment 

would be against equity and good conscience because it has not been shown, for the reasons noted 

above, that he would experience severe financial hardship in attempting to repay the debt, or that 

a valuable right had been relinquished, or that a position had been changed for the worse in reliance 

on the payment, which created the overpayment.18 Therefore, OWCP properly denied waiver of 

recovery of the overpayment.

Because it has not been established that, recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not 

abused its discretion by denying waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations 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 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.19

ANALYSIS -- ISSUE 3

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

$300.00 every 28 days from appellant’s continuing compensation payments.

In determining whether appellant could repay the overpayment through $300.00 

deductions from continuing compensation payments, OWCP took into account his financial 

information as well as factors set forth in 20 C.F.R. § 10.441 and found that this method of 

recovery would minimize any resulting hardship, not necessarily eliminate it, while at the same 

 

18 L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

19 20 C.F.R. § 10.441(a); A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056, 

1062 (1988).
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time liquidating the debt in a reasonably prompt fashion.20 The Board finds that OWCP gave due 

regard to the financial information provided and found that his monthly income exceeded monthly 

expenses by $1,033.89. OWCP further applied its procedures, which require that an appropriate 

payment amount should be deducted in order to recover the overpayment within three years.21 The 

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

$300.00 every 28 days from appellant’s compensation payments.

On appeal appellant asserts that he needs substantially all of his monthly income to meet 

ordinary and necessary living expenses. He indicated that $400.00 a month for food was not 

reasonable in New York City as the cost of living was above the national average. Appellant 

asserted that even if the accepted monthly expense figure of $2,868.49 was deducted from his 

monthly income of $3,902.38 he was left with $1,034.00, which is not enough to live in New York. 

As explained, however, OWCP took into account his financial information as well as factors set 

forth in 20 C.F.R. § 10.441 and found that this method of recovery would minimize any resulting 

hardship, not necessarily eliminate it, while at the same time liquidating the debt in a reasonably 

prompt fashion. OWCP properly denied waiver of recovery of the overpayment of compensation 

in the amount of $31,339.05.

CONCLUSION

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

of compensation in the amount of $31,339.05, for which he was without fault, because he 

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

benefits for the period March 1, 2017 through June 22, 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 $300.00 every 28 days from his

continuing compensation payments.

 

20 See L.F., Docket No. 15-0489 (issued May 11, 2015) (the Board affirmed an OWCP hearing representative’s 

denial of waiver of recovery of an overpayment because appellant and his spouse had over $17,000.00 in their savings 

account, and as such his assets exceeded the specified resource base).

21 Supra note 11 at Chapter 6.500.8.c (September 2018). These procedures further note that if no response to the 

preliminary overpayment determination is received, OWCP should set the rate of repayment at 25 percent of the 

28-day net compensation amount until the balance of the overpayment is paid in full (emphasis added) Chapter 

6.500.8.c(1).
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ORDER

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

Workers’ Compensation Programs is affirmed. 

Issued: January 8, 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