United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRUBTION CENTER, Columbia, SC, 

Employer

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Docket No. 22-0369

Issued: June 7, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 14, 2022 appellant, through counsel, filed a timely appeal from a December 1, 

2021 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 following the December 1, 2021 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $17,185.52 for the period January 1, 2020 through 

April 24, 2021, for which he was without fault, because he concurrently received FECA wage-loss 

compensation and Social Security Administration (SSA) age-related retirement benefits, 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 $500.00 from 

appellant’s continuing compensation payments every 28 days. 

FACTUAL HISTORY

This case has previously been before the Board on a different issue.

4 The facts and 

circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are as follows.

On October 8, 2009 appellant, then a 55-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on October 5, 2009 he strained his lower back and right shoulder 

while in the performance of duty. He stopped work on October 5, 2009. OWCP accepted the 

claim for lumbar sprain and right shoulder sprain. It subsequently expanded the acceptance of his 

claim to include an aggravation of lumbar spondylosis without myelopathy and lumbar spinal 

stenosis. OWCP paid appellant wage-loss compensation on the supplemental rolls effective 

February 3, 2010 and on the periodic rolls effective November 21, 2010. 

On March 1, 2021 OWCP sent a Federal Employees Retirement System (FERS)/SSA dual 

benefits calculation form to SSA for completion.5

On May 10, 2021 SSA completed the FERS/SSA dual benefits calculation form and 

provided appellant’s monthly benefits with and without FERS from January to December 2020. It

indicated that effective January 2020, appellant’s SSA rate with FERS was $2,143.60 and without 

FERS was $1,061.80; and effective December 2020, his rate with FERS was $2,171.40 and 

without FERS was $1,075.60.

On May 12, 2021 OWCP advised appellant that it was reducing his wage-loss 

compensation effective April 25, 2021by the amount of his SSA benefits attributable to his federal 

service. It indicated that his new net compensation every 28 days would be $2,151.49. 

In a FERS offset overpayment calculation form completed May 12, 2021, OWCP 

calculated the amount that it should have offset from appellant’s compensation for each period 

from January 1, 2020 through April 24, 2021. Itfound that, from January 1 through November 30, 

2020, appellant received an overpayment of $11,947.35 and from December 1, 2020 through 

April 24, 2021, he received an overpayment of $5,238.16. Based on these figures, OWCP 

calculated the total overpayment amount of $17,185.52.

4 Docket No. 13-1288 (issued November 12, 2013).

5 On an April14, 2010 claim for compensation (Form CA-7), the employing establishment indicated that appellant 

had FERS as his retirement system. 
3

In a preliminary overpayment determination dated May 12, 2021, OWCP notified 

appellant of its preliminary finding that he had received an overpayment of compensation in the 

amount of $17,185.52 for the period January 1, 2020 through April 24, 2021 because he 

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

without an appropriate offset. It further advised him of its preliminary determination 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 

supporting income and expenses. Additionally, OWCP provided an overpayment action request 

form and 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 May 20, 2021 appellant requested a prerecoupment hearing before a representative of 

OWCP’s Branch of Hearings and Review. In an overpayment action request form dated May 25, 

2021, he requested waiver of recovery of the overpayment. In a OWCP-20 form of even date, 

appellant indicated that he had reported his SSA retirement income to OWCP. He advised that he 

was uncomfortable completing the OWCP-20 form due to privacy concerns. 

A prerecoupment hearing was held on September 17, 2021. Appellant advised that his 

income was limited to his military retirement, SSA benefits, benefits from the Department of 

Veterans Affairs, and OWCP. He asserted that his financial information was private and noted 

that OWCP had caused the overpayment. The hearing representative advised appellant that she 

required financial information to consider waiver of recovery of the overpayment and to determine 

any necessary repayment schedule. Appellant indicated that he could pay $500.00 per month for 

recovery of the overpayment.

By decision dated December 1, 2021, OWCP’s hearing representative finalized the 

preliminary overpayment determination, finding that appellant received an overpayment of 

compensation in the amount of $17,195,52 for the period January 1, 2020 through April 24, 2021

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

compensation without an appropriate offset. She found that he was without fault in the creation 

over the overpayment, but denied waiver of recovery of the overpayment as he had not provided 

the necessary financial information. The hearing representative noted that appellant had indicated 

that he could make a monthly payment of $500.00 and thus required repayment of the overpayment 

by deducting $500.00 from his continuing compensation payments every 28 days.

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.6 Section 8116 limits the right of an employee to receive 

6

5 U.S.C. § 8102.
4

compensation. While an employee is receiving compensation, he or she may not receive salary, 

pay, or remuneration of any type from the United States.7

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.8 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.9

ANALYSIS -- ISSUE 1

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

of wage-loss compensation in the amount of $17,185.52 for the period January 1, 2020 through 

April 24, 2021,for which he was without fault, because he concurrently received FECA wage-loss 

compensation benefits and SSA age-related retirement benefits, without an appropriate offset. 

OWCP paid appellant wage-loss compensation for total disability beginning 

February 3, 2010. Appellant received SSA age-related retirement benefits beginning 

January 1, 2020. As noted, a claimant cannot receive concurrent FECA compensation for wageloss and SSA age-related retirement benefits attributable to federal service.10

 The information 

provided by SSA indicated that a portion of appellant’s SSA age-related retirement benefits were 

attributable to his federal service. Accordingly, the Board finds that fact of overpayment has been 

established.11 

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

benefits 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. SSA provided appellant’s SSA age-related retirement benefit rates 

with FERS and without FERS from January to December 2020. OWCP provided its calculations 

for each relevant period based on SSA’s worksheet and determined that appellant received an 

overpayment in the amount of $17,185.52. The Board has reviewed OWCP’s calculation of dual 

benefits received by appellant for the period January 1, 2020 through April 24, 2021 and finds that 

an overpayment of compensation in the amount of $17,185.52 was created.12

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August20, 2018).

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

10 Supra note 8. See F.K., Docket No. 20-1609 (issued June 24, 2021); A.C., Docket No. 18-1550 (issued 

February21, 2019).

11 See L.K., Docket No. 20-1574 (issued June23, 2021); S.H., Docket No. 20-1157 (issued December 23, 2020).

12 See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).
5

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA13 provides that an overpayment must be recovered 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. Thus, a 

finding that appellant was without fault does not automatically result in waiver of the overpayment.

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

defeat the purpose of FECA or would be against equity and good conscience. 14

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 from data provided by the Bureau of Labor Statistics. 15 An individual’s liquid assets 

include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual 

funds, and certificates of deposits. Nonliquid assets include, but are not limited to, the fair market 

value of an owner’s equity in property such as a camper, boat, second home, furnishings/supplies, 

vehicle(s) above the two allowed per immediate family, retirement account balances (such as TSP 

or 401(k)), jewelry, and artwork.16

Section 10.437 provides that recovery of an overpayment is 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 her position for the 

worse.17

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. 18 Appellant, 

13 Supra note 2.

14 G.L., Docket No. 19-0297 (issued October 23, 2019).

15 20 C.F.R. § 10.436. OWCP procedures provide that a claimant is deemed to need substantially all his or her 

current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00. Its procedures further provide that 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) and (3) (September 2020).

16 Id. at Chapter 6.400.4b(3)(a), (b).

17 20 C.F.R. § 10.437(b)(1).

18 See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).
6

however, had the responsibility to provide the appropriate financial information and 

documentation to OWCP.19

In its preliminary overpayment determination dated May 12, 2021, OWCP explained the 

importance of providing the completed Form OWCP-20 and financial information, 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 if he failed to furnish 

the requested financial information within 30 days. Appellant submitted a May 20, 2021

OWCP-20 form, but did not provide any information about his income, expenses, or assets. He 

indicated that he was not comfortable providing financial information due to privacy concerns.

OWCP, therefore, did not have the necessary financial information to determine if recovery of the 

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

conscience.20 

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

overpayment.

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. 21

Section 10.441 of OWCP’s regulations22 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 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. 23

ANALYSIS -- ISSUE 3

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

$500.00 from appellant’s continuing compensation payments every 28 days.

While appellant requested waiver of recovery of the overpayment, he did not complete the 

Form OWCP-20 or otherwise provide financial information. OWCP’s regulations provide that the 

overpaid individual is responsible for providing information about income, expenses, and assets 

as specified by OWCP.24

19 20 C.F.R. § 10.438; V.B., Docket No. 20-0976 (issued January 26, 2021).

20 E.M., Docket No. 19-0857 (issued December 31, 2019).

21 Id. at § 10.441. See M.P., Docket No. 18-0902 (issued October 16, 2018).

22 Id. at § 10.441(a).

23 Id.;see L.G., Docket No. 19-1274 (issued July 10, 2020). 

24 Id. at § 10.438. See also A.F., Docket No. 19-0054 (issued June12, 2019).
7

When an individual fails to provide requested financial information, OWCP should follow 

minimum collection guidelines designed to collect the debt promptly and in full. 25 OWCP’s 

procedures provide that, in these instances, OWCP should set the rate of recovery at 25 percent of 

the 28-day net compensation amount until the balance of the overpayment is paid in full. 26

The record reflects that appellant’s continuing 28-day wage-loss compensation as of 

April 25, 2021 was $2,151.49. Therefore, deducing $500.00 every 28 days from his continuing 

compensation does not exceed the 25 percent repayment rate.27

CONCLUSION

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

of compensation in the amount of $17,185.52 for the period January 1, 2020 through April 24, 

2021, for which he was without fault, because he concurrently received FECA wage -loss 

compensation and SSA age-related retirement benefits 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 $500.00 from appellant’s continuing 

compensation payments every 28 days. 

25 See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).

26 Supra note 15 at Chapter 6.500.8(c)(1) (September 2018); D.H., Docket No. 20-1064 (issued 

December 14, 2020).

27 See S.M., Docket No. 21-0772 (issued November 30, 2021).
8

ORDER

IT IS HEREBY ORDERED THAT the December 1, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 7, 2022

Washington, DC

Patricia H. Fitzgerald, 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