United States Department of Labor

Employees’ Compensation Appeals Board

________________________________________

N.A., Appellant

and

U.S. POSTAL SERVICE, SANTA ANA 

PROCESSING & DISTRIBUTION CENTER, 

Santa Ana, CA, Employer

__________________________________________

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Docket No. 21-0982

Issued: April 28, 2022

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 14, 2021 appellant filed a timely appeal from a May 13, 2021 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 determined that appellant received an 

overpayment of compensation in the amount of $69,900.47, for which he was without fault,

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

1

5 U.S.C. § 8101 et seq.

2 Appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedures 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

Administration (SSA) age-related retirement benefits for the period June 1, 2006 through 

September 12, 2020, without an appropriate offset; (2) whether OWCP properly denied waiver of 

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

deducting $1,800.00 from appellant’s continuing compensation payments every 28 days. 

FACTUAL HISTORY

On September 27, 2004 appellant, then a 60-year-old mechanic, filed an occupational 

disease claim (Form CA-2) alleging that he sustained lumbar intervertebral disc displacement and 

radiculopathy at L5-S1 due to factors of his federal employment. OWCP accepted his claim for 

lumbar disc displacement at L5-S1 with radiculopathy. It paid appellant wage-loss compensation

on the supplemental rolls as of February 20, 2005 and on the periodic rolls commencing

June 12, 2005.

On July 9, 2020 OWCP forwarded a Federal Employees Retirement System (FERS)/SSA 

dual benefits calculations form to SSA to determine whether an offset of benefits was required. 

On August 12, 2020 SSA completed the SSA dual benefit calculation transmittal form 

setting forth appellant’s SSA rate with FERS and without FERS commencing June 2006. With 

FERS, appellant was entitled to the following monthly rates: $1,002.20 effective June 2006; 

$1,035.30 effective December 2006; $1,059.00 effective December 2007; $1,485.70 effective 

May 2010; $1,485.70 effective December 2010; $1,539.10 effective December 2011; $1,565.20 

effective December 2012; $1,588.60 effective December 2013; $1,615.60 effective 

December 2014; $1,615.60 effective December 2015; $1,620.40 effective December 2016; 

$1,652.80 effective December 2017; $1,699.00 effective December 2018; and $1,726.10 effective 

December 2019. Without FERS, he would have been entitled the following monthly rates:

$883.30 effective June 2006; $912.40 effective December 2006; $933.30 effective 

December 2007; $987.40 effective May 2010; $987.40 effective December 2010; $1,022.90 

effective December 2011; $1,040.20 effective December 2012; $1,055.80 effective 

December 2013; $1,073.70 effective December 2014; $1,073.70 effective December 2015; 

$1,076.90 effective December 2016; $1,098.40 effective December 2017; $1,129.10 effective 

December 2018; and $1,147.10 effective December 2019. SSA noted on the form that appellant 

had received disability benefits between May 2008 and April 2010. 

On September 18, 2020 OWCP completed a FERS offset calculation form wherein it 

tabulated the overpayment from June 1, 2006 to September 12, 2020. It determined the 

overpayment amount by multiplying the daily FERS offset amount by the number of days in each 

period. OWCP related that from June 1, 2006 to November 30, 2006 an overpayment of $717.32; 

from December 1, 2006 to November 30, 2007 an overpayment of $1,478.85; from December 1, 

2007 through April 30, 2008 an overpayment of $629.88; from May 1 to November 30, 2010 an 

overpayment of $3,515.48; from December 1, 2010 to November 30, 2011 an overpayment of 

$5,996.03; from December 1, 2011 to November 30, 2012 an overpayment of $6,228.44; from 

December 1, 2012 to November 30, 2013 an overpayment of $6,317.31; from December 1, 2013 

until November 30, 2014 an overpayment of $6,411.16; from December 1, 2014 to November 30, 

2015 an overpayment of $6,520.66; from December 1, 2015 to November 30, 2016 an 

overpayment of $6,538.53; from December 1, 2016 to November 30, 2017 an overpayment of 

$6,539.92; from December 1, 2017 to November 30, 2018 an overpayment of $6,671.08; from 
3

December 1, 2018 to November 30, 2019 an overpayment of $6,857.59; and from December 1, 

2019 to September 12, 2020 an overpayment of $5,478.23. OWCP found that the overpayment 

totaled $69,900.47. 

In a preliminary overpayment determination dated October 8, 2020, OWCP advised 

appellant of its determination that he received a $69,900.47 overpayment of compensation for the 

period June 1, 2006 through September 12, 2020 because his FECA wage-loss compensation

benefits had not been reduced by his SSA age-related retirement benefits attributable to federal

service. It also made a preliminary determination that he was without fault in the creation of the 

overpayment. OWCP advised appellant that he could submit evidence challenging the fact or 

amount of the overpayment or request waiver of recovery of the overpayment. It instructed him

to complete an overpayment recovery questionnaire (Form OWCP-20) to determine whether 

waiver should be granted, and if not, a reasonable repayment schedule. OWCP informed appellant 

that he should 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. 

It provided an overpayment action request form and notified him 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 November 4, 2020 appellant completed the Form OWCP-20. He requested waiver of 

recovery of the overpayment because he was found to be without fault in the creation of the 

overpayment. Appellant reported SSA income of $2,180.00 and FECA benefits of $7,474.20, for 

a total monthly income of $9,654.02. He listed expenses as: $849.13 for mortgage; $1,000.00 for 

food; $300.00 for clothing; $854.15 for utilities; $2,699.61 for other expenses. Appellant listed 

other consumer debts paid by monthly installments as totaling $1,357.96. He listed $10,859.37 in 

assets (cash, checking account, savings account, and value of other personal property). Appellant

forwarded a number of documents relating to his expenses and noted that he spent money and 

obtained credit he would not have if he had known he was being overpaid. 

By final decision dated May 13, 2021, OWCP found that appellant received an 

overpayment of compensation in the amount of $69,900.47 for the period of June 1, 2006 through

September 12, 2020, for which he was without fault. It explained that he had reported $9,654.02 

in monthly income, which the evidence of record substantiated consisted of his SSA benefits of 

$2,180.00, his wife’s benefits of $599.00, FECA compensation of $4,379.00, and Department of 

Veterans Affairs (VA) benefits of $3,600.12. However, OWCP found that appellant had not 

substantiated or explained his “other expenses” of $2,699.61, and that he had reported an excessive 

$1,000.00 amount for food expense, thus his food expense was reduced to $690.00. Therefore,

appellant’s monthly income of $9,654.02 exceeded his monthly adjusted expenses of $4,051.24, 

by $5,602.78. OWCP determined that, although appellant was not at fault in the creation of the 

overpayment, the overpayment could not be waived as appellant’s income exceeded his monthly 

expenses by more than $50.00, and his asset base also exceeded the allowable threshold of 

$10,300.00. It found that there was no evidence to substantiate that recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience. OWCP required 

recovery of the overpayment by deduction of $1,800.00from appellant’s continuing compensation

payments every 28 days. 
4

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA3 provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

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 

attributable to the employee’s federal service.6 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. 7

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $69,900.47, as he concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation for the period June 1, 2006 through 

September 12, 2020, without an appropriate offset.

In its May 13, 2021 decision, OWCP found that an overpayment of compensation was 

created for the period June 1, 2006 through September 12, 2020. 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 for wage loss and SSA age-related retirement 

benefits attributable to federal service for the same period.8 The information provided by SSA 

indicated that appellant received age-related SSA retirement benefits that were attributable to

federal service during the period June 1, 2006 through September 12, 2020. It also properly noted 

that appellant had received disability, rather than age-related SSA benefits from May 1, 2008 to 

April 30, 2010. Consequently, the fact of overpayment has been established.9

3

Id.

4

Id. at § 8102.

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued 

August 20, 2018).

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

8

5 U.S.C. § 8116(d)(2); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued 

May 17, 2019).

9 L.M., Docket No. 19-1197 (issued January 8, 2020).
5

To determine the amount of the overpayment, the portion of the SSA benefits that were 

attributed to federal service must be calculated. OWCP received documentation from SSA with 

respect to the specific amount of SSA benefits that were attributable to federal service. The SSA 

provided the SSA rate with FERS, and without FERS for specific periods commencing June 2006. 

OWCP provided its calculations for each relevant period based on the SSA worksheet and in its 

October 8, 2020 preliminary overpayment determination. No contrary evidence was provided. 

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

period June 1, 2006 through September 12, 2020 and finds that an overpayment of compensation 

in the amount of $69,900.47 was created.

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.10 

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 

overpaymentwould defeat the purpose of FECA or would be against equity and good conscience. 11

Section 10.436 of OWCP’s implementing regulations provides that recovery of an 

overpayment would defeat the purpose of FECA if such recovery would cause hardship 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, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP 

from data provided by the Bureau of Labor Statistics.12 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. 13

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. 14 OWCP’s procedures 

provide that, to establish that a valuable right has been relinquished, an individual must 

10 5 U.S.C. § 8129(a)-(b).

11 C.B., Docket No. 20-0031 (issued July 27, 2020); L.S., 59 ECAB 350 (2008).

12 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(2) (September 2020).

13 Federal (FECA) Procedure Manual, id. at Chapter 6.400.4a(3) (September 2020).

14 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).
6

demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and 

that his or her action was based primarily or solely on reliance on the payment(s) or on the notice 

of payment.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. 

Appellant has not established that recovery of the overpayment would defeat the purpose of FECA 

because he has not shown both that he needs substantially all of his current income to meet ordinary 

and necessary living expenses or that his assets do not exceed a specified amount as determined 

by OWCP from data provided by the Bureau of Labor Statistics. OWCP procedures provide that 

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, i.e., the amount of monthly funds available for debt repayment is the difference 

between current income and adjusted living expenses plus $50.00. 17 Appellant submitted an 

overpayment recovery questionnaire on November 5, 2017 and a substantial amount of documents 

relating to his expenses. 

OWCP found that appellant’s monthly income was $9,654.02, based upon his and his 

wife’s SSA benefits, his FECA compensation, and his VA benefits. It also found that appellant 

had not substantiated or described his “other expenses” of $2,699.61, therefore his verified 

monthly expenses of $4,051.24 yielded a monthly surplus amount of $5,602.78. An individual is 

deemed to need substantially all of his or her monthly income to meet current and ordinary living 

expenses if monthly income does not exceed monthly expenses by more than $50.00. 18 As 

appellant’s current income exceed his ordinary and necessary living expenses by more than $50.00

he does not need substantially all of his income for ordinary and necessary living expenses. 19

Additionally, the evidence of record does not demonstrate that repayment of the 

overpayment would be against equity and good conscience. Appellant submitted no evidence that 

he relied upon the incorrect payments to his detriment or that he would experience severe financial 

15 Federal (FECA) Procedure Manual, supranote 12at Chapter 6.400.4c(3) (September 2020).

16 20 C.F.R. § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

17 Supra note 12. 

18 Id. at Chapter 6.200.6(a)(1); see also Desiderio Martinez, 55 ECAB 336 (2004).

19 As appellant’s income exceeds his ordinary and necessary living expenses by more than $50.00, it is not necessary 

for OWCP to consider whether his assets exceed the allowable resource base. See J.W., Docket No. 16-1355 (issued 

January 10, 2017).
7

hardship attempting to repay the debt.20 He alleged that he would not have spent money and 

obtained credit if he had known he was being overpaid. To establish that a valuable right has been 

relinquished, it must be shown that the right was in fact, valuable; that it cannot be regained; and 

that the action was based chiefly or solely on reliance on the payments or on the notice of payment. 

To establish that the individual’s position has changed for the worse, it must be shown that the 

decision made would not otherwise have been made but for the receipt of benefits, and that this 

decision resulted in a loss.21 Because appellant failed to establish that recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience, he has failed to show 

that OWCP abused its discretion by refusing to waive the overpayment. 

LEGAL PRECEDENT -- ISSUE 3 

Section 10.441 of Title 20 of the Code of Federal Regulations provides that if an 

overpayment of compensation has been made to one entitled to future payments, proper adjustment 

shall be made by decreasing subsequent 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.”

22

 When an individual 

fails to provide requested information on income, expenses, and assets, OWCP should follow 

minimum collection guidelines, which state in general that government claims should be collected 

in full and that, if an installment plan is accepted, the installments should be large enough to collect 

the debt promptly.23

ANALYSIS -- ISSUE 3 

The Board finds that OWCP gave due regard to the relevant factors noted above in setting 

a rate of recovery of $1,800.00 each 28 days from appellant’s continuing compensation payments. 

The record indicates that appellant’s monthly income exceeds his reported monthly expenses by

$5,602.78 per month. OWCP therefore did not abuse its discretion in finding that he should repay 

the overpayment at the rate of $1,800.00 per compensation period.24

CONCLUSION

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

of compensation in the amount of $69,900.47, for which he was without fault, because he 

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

the period June 1, 2006 through September 12, 2020, without an appropriate offset. The Board 

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

20 20 C.F.R. § 10.437.

21 See Susan L. Flowers, Docket No. 95-0427 (issued February 25, 1997). 

22 20 C.F.R. § 10.441.

23 J.R., Docket No. 20-1094 (issued January 5, 2021);R.O., Docket No. 18-0076 (issued August3, 2018); Gail M. 

Roe, 47 ECAB 268 (1995).

24 N.B., Docket 18-0795 (issued January 4, 2019); N.S.,Docket No. 14-2081 (issued February 12, 2015).
8

recovery of the overpayment by deducting $1,800.00 every 28 days from his continuing 

compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’Compensation 

Programs dated May 13, 2021 is affirmed. 

Issued: April 28, 2022

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