United States Department of Labor

Employees’ Compensation Appeals Board

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D.M., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

LANGLEY AIR FORCE BASE, Langley, VA, 

Employer

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Docket No. 19-1369

Issued: June 30, 2020

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 10, 2019 appellant filed a timely appeal from an April 16, 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 $25,211.19, for which he was without fault, 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the April 16, 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 November 1, 2014 through

March 2, 2019; (2) whether OWCP properly denied waiver of recovery of the overpayment; and 

(3) whether OWCP properly required recovery of the overpayment by deducting $100.00 every 28 

days from appellant’s continuing compensation payments,

FACTUAL HISTORY

On March 18, 1992 appellant, then a 43-year-old painter, filed a traumatic injury claim 

(Form CA-1) alleging that on February 24, 1992 he injured his right elbow, wrist, and hand as a 

result of repetitively lifting a can of paint and a ladder while in the performance of duty. OWCP 

accepted appellant’s claim for aggravation of right wrist strain and carpal tunnel syndrome. 

Appellant began limited-duty job and stopped work on November 26, 1995 because limited duty 

was no longer available. OWCP paid appellant compensation on the supplemental rolls, and 

placed him on the periodic rolls effective December 10, 1995. By decision dated February 2, 

1998, it reduced appellant’s compensation based on his capacity to earn wages in the constructive

position of a customer service representative. Appellant continues to receive compensation 

benefits based on his loss of wage-earning capacity determination.

On an EN1032 form dated December 22, 2014, appellant did not respond to the question 

as to whether he was in receipt of SSA benefits. On EN1032 forms dated December 14, 2015 and 

December 12, 2016, he replied “No” regarding receipt of SSA benefits, and on EN1032 forms 

dated December 13, 2017 and December 3, 2018, appellant replied “Yes,” indicating that he had 

received SSA benefits as part of an annuity for federal service. 

On February 5, 2019 SSA forwarded a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form to OWCP. The form indicated that beginning in 

November 2014 appellant’s SSA rate with FERS was $1,187.50 and without FERS $716.60; 

beginning in December 2014 and December 2015, his rate with FERS was $1,207.60 and without 

FERS $728.70; beginning December 2016, his SSA rate with FERS was $1,211.20 and without 

FERS $730.80; beginning in December 2017, his SSA rate with FERS was $1,235.40 and without 

FERS $745.40; and beginning in December 2018, his SSA rate with FERS was $1,269.80 and 

without FERS $766.20. OWCP prepared a FERS offset calculation worksheet verifying its 

calculations. 

In a letter dated March 13, 2019, OWCP notified appellant that, based on information 

provided by SSA regarding the amount of his SSA benefit attributable to federal service, his FECA 

wage-loss compensation had been adjusted. 

On March 15, 2019 OWCP issued a preliminary determination, finding that an 

overpayment of compensation in the amount of $25,211.19 had been created. It explained that the 

overpayment occurred because a portion of appellant’s SSA age-related retirement benefits that 

he received for the period November 1, 2014 through March 2, 2019 was based on credits earned 

while working in the Federal Government, and that this portion of his SSA benefit was a prohibited 

dual benefit. OWCP found him not at fault in the creation of the overpayment. It explained its 

calculation of the overpayment, attached its calculation worksheet, and informed him of the actions 

he could take. OWCP provided an overpayment action request form and an overpayment recovery 
3

questionnaire (OWCP-20). It requested that he provide documentation including income tax 

returns, bank account statements, bills and cancelled checks, pay slips, and any other records which 

supported income and expenses listed, and allotted 30 days for him to respond. OWCP mailed the 

preliminary overpayment determination to appellant’s last known address of record. No response 

or additional evidence was received regarding the overpayment. 

By decision dated April 16, 2019, OWCP finalized its preliminary determination finding

that appellant had received an overpayment of compensation in the amount of $25,211.19 for the 

period November 1, 2014 through March 2, 2019 because a portion of his SSA age-related 

retirement benefits was based on credits earned while working in the Federal Government, and 

that this portion of his SSA benefit was a prohibited dual benefit. It further found that he was 

without fault in the creation of the overpayment, but denied waiver of recovery. OWCP noted that 

no response had been received following the preliminary determination. It required recovery of

the overpayment by deducting $100.00 every 28 days from appellant’s continuing wage-loss 

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 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.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 benefits that are 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 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.7

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

Id. at § 8129(a).

6 20 C.F.R. § 10.421(d); see J.S., Docket No. 19-0824 (issued October 4, 2019); 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).
4

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $25,211.19 because he concurrently received FECA wage-loss 

compensation benefits and SSA age-related retirement benefits for the period November 1, 2014 

through March 2, 2019. 

Appellant has not challenged the fact or amount of overpayment. The record indicates that, 

while appellant was receiving compensation for disability under FECA, he was also receiving SSA 

age-related retirement benefits during the period at issue. A claimant cannot receive both 

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

same period.8 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. The SSA provided the SSA rate with FERS and without FERS for specific periods 

commencing November 1, 2014 through March 2, 2019. OWCP provided its calculations for each 

relevant period based on the SSA worksheet and in its March 1, 2018 preliminary overpayment 

determination. No contrary evidence was provided.

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

period November 1, 2014 through March 2, 2019 and finds that an overpayment of compensation 

in the amount of $25,211.19 was created.9

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 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.11

 

8 See D.C., Docket No. 19-0118 (issued January 15, 2020).

9 See L.W., Docket No. 19-0787 (issued October 23, 2019); L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., 

Docket No. 17-0559 (issued June 21, 2018).

10 5 U.S.C. § 8129.

11 20 C.F.R. § 10.438.
5

ANALYSIS -- ISSUE 2

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

compensation.

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

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.12 

Appellant, however, had the responsibility to provide financial information to OWCP,13 and he 

did not do so.

In its preliminary determination dated March 15, 2019, OWCP clearly explained the 

importance of providing the completed overpayment recovery questionnaire and supporting 

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

pay slips, and any other records to support income and expenses. It advised appellant that it would 

deny waiver of recovery if he failed to furnish the requested financial information within 30 days. 

Appellant, however, did not respond to this request. He did not complete the Form OWCP-20 or 

submit the financial information necessary for OWCP to determine if recovery of the overpayment 

would defeat the purpose of FECA or if recovery would be against equity and good conscience. 

Consequently, as appellant did not submit the information required under section 10.438 

of OWCP’s regulations, which was necessary to determine his eligibility for waiver, OWCP 

properly denied waiver of recovery of the overpayment.14

On appeal appellant alleges that he did not receive notice from OWCP requesting that he 

provide evidence in support of waiver. The record reflects that the preliminary overpayment 

determination dated March 15, 2019 explained the importance of providing the completed 

overpayment questionnaire. Under the “mailbox rule,” it is presumed, absent evidence to the 

contrary, that a notice mailed to an individual in the ordinary course of business was received by 

that individual.15 The record supports that OWCP’s preliminary determination dated March 15, 

2019 was sent to appellant at his address of record and does not indicate that it was returned as 

undeliverable. Consequently, as appellant did not submit the financial information required under 

section 10.438 of OWCP’s regulations, OWCP properly denied waiver of recovery of the 

overpayment of compensation in the amount of $25,211.19.16

 

12 5 U.S.C. § 8129.

13 20 C.F.R. § 10.438.

14 Id.

15 See A.S., Docket No. 19-1689 (issued February 21, 2020); Kenneth E. Harris, 54 ECAB 502, 505 (2003); A.C. 

Clyburn, 47 ECAB 153 (1995).

16 See M.D., Docket No. 19-1689 (issued February 21, 2020); S.M., Docket No. 17-1802 (issued August 20, 2018).
6

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 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.”

17

ANALYSIS -- ISSUE 3

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

compensation by deducting $100.00 every 28 days from appellant’s continuing compensation 

payments. 

The overpaid individual is responsible for providing information about income, expenses, 

and assets as specified by OWCP.18 When an individual fails to provide requested financial 

information, OWCP should follow minimum collection guidelines designed to collect the debt 

promptly and in full.19 As appellant did not submit the financial information to OWCP as 

requested, the Board finds that there is no evidence of record to establish that OWCP erred in 

directing recovery of the $25,211.19 overpayment of compensation at the rate of $100.00 every 

28 days from continuing compensation.

20

CONCLUSION

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

$25,211.19, for which he was without fault, because he concurrently received FECA wage-loss 

compensation and SSA age-related retirement benefits, for the period November 1, 2014 through

March 2, 2019. The Board further finds that OWCP properly denied waiver of recovery of the 

overpayment, and that it properly required recovery by deducting $100.00 every 28 days from 

appellant’s continuing compensation payments.

 

17 20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

18 Id. at § 10.438.

19 Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Overpayment Actions, Chapter 6.200.4(c)(2) (May 2004).

20 See E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued March 2, 2017).
7

ORDER

IT IS HEREBY ORDERED THAT the April 16, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 30, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board