United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.V., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

CORPS BASE FIRE DEPARTMENT, 

Camp Lejeune, NC, Employer

__________________________________________

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Docket No. 19-1223

Issued: March 25, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 12, 2019 appellant filed a timely appeal from an April 9, 2019 merit decision of

the Office of Workers’ Compensation Programs (OWCP).1 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.

2

 

1 Appellant timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). By order dated 

July 22, 2020, the Board exercised its discretion and denied the request as the matter could be adequately addressed 

based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 19-1223 (issued 

July 22, 2020).

2 The Board notes that following the April 9, 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 $27,889.50 for the period February 1, 2014 through July 21, 2018, 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 $400.00 from appellant’s 

continuing compensation payments every 28 days. 

FACTUAL HISTORY

On April 17, 2000 appellant, then a 51-year-old fire inspector, filed a traumatic injury claim 

(Form CA-1) alleging that on April 17, 2000 he injured his low back when he stood up from a 

leaning position while in the performance of duty. He stopped work on that date. OWCP accepted 

appellant’s claim for low back radiculitis and paid wage-loss compensation on the supplemental 

rolls, effective June 2, 2000. It placed him on the periodic rolls, effective August 13, 2000.

In a letter dated January 3, 2011, OWCP advised appellant that his Federal Employees 

Retirement System (FERS) benefits would be reduced by the amount of SSA age-related 

retirement benefits that he received that were attributable to his federal service. It advised him

that failure to report receipt of such retirement benefits to OWCP may result in an overpayment of 

compensation. 

Appellant submitted CA-1032 forms completed on February 20, 2014, May 26, 2015, and 

February 27, 2016, in which he responded “No,” indicating that he had not received SSA 

retirement benefits as part of an annuity for federal service. 

In a Form CA-1032 completed on February 20, 2017, appellant indicated that he received 

$1,188.00 in retirement benefits monthly from SSA as part of an annuity for federal service.

On May 19, 2017 an SSA representative provided OWCP a FERS/SSA dual benefit 

calculation worksheet. SSA provided corresponding monthly SSA benefit rates beginning 

February 2014 with and without appellant’s FERS contributions. With FERS, appellant was 

entitled to a monthly payment of $1,271.50 effective February 2014; $1,293.10 effective 

December 2014; $1,293.10 effective December 2015; and $1,296.90 effective December 2016. 

Without FERS, he was entitled to a monthly payment of $760.80 effective February 2014; $773.70 

effective December 2014; $773.70 effective December 2015; and $775.90 effective 

December 2016. 

In a Form CA-1032 completed on February 15, 2018, appellant responded “No” indicating 

that he had not received retirement benefits from SSA as part of an annuity for federal service.

In a letter dated April 4, 2018, B.C., an injury compensation management adviser for the 

employing establishment, indicated that on May 9, 2017 SSA had provided OWCP with a 

FERS/SSA dual benefit calculation worksheet for the period 2014 through 2016. She explained 
3

that since OWCP had failed to offset appellant’s wage-loss compensation prior to December 2017, 

OWCP would need to request offset amounts for 2017. 

On May 24, 2018 an SSA representative provided OWCP with an updated FERS/SSA dual 

benefit calculation worksheet that included the monthly SSA benefits rates effective 

December 2017. With FERS, appellant was entitled to a monthly payment of $1,322.80, effective 

December 2017. Without FERS, he was entitled to a monthly payment of $801.80, effective 

December 2017. 

OWCP completed a FERS offset calculation worksheet on October 6, 2018. It calculated 

the overpayment amount by determining the monthly FERS offset amount and then converted that 

amount to the 28-day FERS offset amount for each period. After determining the daily offset 

amount, OWCP multiplied this amount by the number of days in each period. It determined that 

for the period February 1 through November 30, 2014, appellant received an overpayment of 

$5,101.39. For the period December 1, 2014 through November 30, 2015, OWCP calculated an 

overpayment of $6,249.92. For the period December 1, 2015 through November 30, 2016, it

calculated an overpayment of $6,267.05. For the period December 1, 2016 through November 30, 

2017, OWCP calculated an overpayment of $6,269.18. For the period December 1, 2017 through

July 21, 2018, it calculated an overpayment of $4,001.97. The total overpayment amount was of 

$27,889.50. 

On August 14, 2018 OWCP advised appellant that it was adjusting his wage-loss 

compensation, effective July 22, 2018, to offset the portion of his SSA age-related retirement 

benefits attributable to his federal service. It informed him that the portion of the SSA benefits 

that he earned as a federal employee was part of the FERS retirement package and that FECA did 

not allow the simultaneous receipt of workers’ compensation and federal retirement benefits. 

Beginning July 22, 2018, OWCP paid appellant at the adjusted amount of $803.68 to 

include the offset of his SSA age-related retirement benefits attributable to his federal service.

In a preliminary overpayment determination dated August 20, 2018, OWCP notified 

appellant that he had received an overpayment of compensation in the amount of $27,889.50

because it had failed to reduce his wage-loss compensation benefits for the period February 1, 

2014 through July 21, 2018 by the portion of his SSA benefits that were attributable to federal 

service. It further advised him of its preliminary determination that he was at fault in the creation 

of the overpayment because he accepted payments that he knew or reasonably should have known 

were incorrect. OWCP provided appellant an overpayment action request form and an 

overpayment recovery questionnaire (Form OWCP-20). Additionally, it 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 August 27, 2018 appellant requested a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review on the issues of fault and possible waiver of 

overpayment. He alleged that he was not at fault in the creation of the overpayment because he 

never intentionally submitted any false documents or information. 
4

On January 20, 2019 OWCP received a statement from appellant. Appellant explained that 

an online statement showed a bill dated December 21, 2018 that was paid $208.96. He also 

explained that he purchased approximately two cords of firewood for $250.00. Appellant

submitted bills from a utility company dated October 24 and November 26, 2018 in the amount of 

$89.27 and $121.15, respectively; mortgage bills dated November 1, 2018 and January 1, 2019 in 

the amount of $699.70; telephone bills dated November 9 and December 9, 2018 and January 9, 

2019 in the amount of $61.90, $86.14, and $86.13 respectively; and six-month auto policy bills 

for $449.49 and $456.36. He submitted a credit union statement dated December 31, 2018, which 

revealed that he had $18,325.55 in a money market account and $10,073.26 in a shared account.

OWCP also received a statement with the title “Expenses.” Appellant noted that he bought 

a two-story, 100-year-old cabin about 3 years ago with plans to do most of the needed work on the 

house himself. He noted that estimates on solar installation ranged from $22,000.00 to $28,000.00. 

Appellant contended that having his benefits cut would make some improvements untenable. He

reported that he had just over $60,000.00 in the bank. Appellant alleged that it would be ruinous 

to require him to pay for OWCP’s error. 

A prerecoupment hearing was held on January 23, 2019. Appellant explained that he did 

not even know how much money he got from SSA. He alleged that he submitted all the 

documentation that was requested of him, that he refused money from the government because he 

did not want the government to pay for certain items, and described the work and awards that he 

had received as a fire inspector. The hearing representative advised appellant to complete the 

Form OWCP-20 and provide supporting documentation so that OWCP could determine whether 

he qualified for waiver of recovery of the overpayment based on his financial information. 

On January 31, 2019 OWCP received appellant’s completed Form OWCP-20. Appellant

advised that his income consisted of $1,188.00 in supplemental benefits and $1,365.48 in 

Department of Veterans Affairs disability benefits for a total monthly income of $2,553.48. He

listed expenses as $699.70 for a mortgage, $450.00 for food, “average-less” for clothing, $533.00 

for utilities, $456.36 for automobile insurance, $137.00 for electric, $40.00 for gas, $86.14 for 

telephone, $143.60 for auto expenses, $70.00 for fuel, $100.00 for miscellaneous health, $100.00 

in supplements, $250.00 for seasonal firewood, and $200.00 for house repairs. Appellant reported 

funds of $2,482.00 in his checking account, $8,500.56 in his savings account, and $18,300.00 in a 

money market account. He also indicated that he was informed that he had four certificate of 

deposits (CDs) estimated at $10,000.00 each. Appellant estimated the value of his house to be 

$122,000.00. 

In an undated letter, appellant noted that he would never knowingly defraud his own 

government. He described several situations where he refused prescriptions for a whirlpool/spa, 

endless pool, and walk-in shower because he thought it was asking too much of the government. 

Appellant noted that he was a veteran and fire protection specialist for the government and 

described the hazardous environment to which he had been exposed. He alleged that it was 

unfathomable to him to be held responsible for the government’s mistake. Appellant indicated 

that while he had money saved in the bank, he went without many things for many years in order 

to accrue that money. 
5

By decision dated April 9, 2019, an OWCP hearing representative affirmed the August 20, 

2018 preliminary overpayment determination with modification. She found that appellant had 

received an overpayment of compensation in the amount of $27,889.50 for the period February 1, 

2014 through July 21, 2018 because he received SSA benefits in addition to his wage-loss 

compensation benefits under FECA without a proper offset. However, the hearing representative 

found that appellant was without fault in the creation of the overpayment. She denied waiver of 

recovery of the overpayment, however, because appellant’s monthly income exceeded his monthly 

expenses by more than $50.00 and his assets exceeded the resource base of $6,200.00. The hearing 

representative required recovery of the overpayment by deducting $400.00 every 28 days from 

appellant’s 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.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

Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the 

amount of compensation by the amount of any SSA age-related retirement benefits that are 

attributable to the employee’s federal service.5 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.6

ANALYSIS -- ISSUE 1

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

$27,889.50 for the period February 1, 2014 through July 21, 2018, for which he was not at fault, 

because he concurrently received FECA benefits and SSA age-related retirement benefits without 

an appropriate offset.

SSA paid appellant age-related retirement benefits retirement February 1, 2014. OWCP 

paid wage-loss compensation benefits until July 21, 2018 without offsetting the portion of the SSA 

age-related retirement benefits due to his federal service. As discussed, a claimant cannot receive 

both compensation for wage loss and the portion of SSA age-related retirement benefits that are 

attributable to his federal service for the same period.7 Because appellant received SSA benefits 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

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

7

Id.; see also L.G., Docket No. 19-1274 (issued July 10, 2020).
6

based on his federal service concurrently with wage-loss compensation benefits from OWCP 

without an appropriate offset, OWCP properly determined that appellant received an overpayment 

of compensation.

To determine the amount of the overpayment, OWCP must calculate the portion of the 

SSA benefits that were attributable to federal service. It received documentation from SSA 

providing appellant’s SSA rate with FERS and without FERS for the period February 1, 2014 

through July 21, 2018. OWCP provided its calculations for each period based on an SSA 

worksheet in an overpayment worksheet explaining the overpayment calculation which has a 

minor addition error of 10 cents.

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

period February 1, 2014 through July 21, 2018 and finds that an overpayment of compensation in 

the amount of $27,889.50 was created.8 

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.9 

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 

overpayment would defeat the purpose of FECA or would be against equity and good conscience.10 

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.11 An individual’s liquid assets include, but 

are not limited to case, the value of stocks, bonds, savings accounts, mutual funds, and certificates 

of deposits.12 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, and furnishings and supplies.13 An 

 

8 See R.B., Docket No. 19-0571 (issued June 12, 2020); L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., 

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

9 5 U.S.C. § 8129(a)-(b).

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

11 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(3) (September 2018).

12 Federal (FECA) Procedure Manual, id. at Chapter 6.400.4(b)(3) (September 2018).

13 Id. 
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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 

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.15 OWCP’s procedures 

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

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.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 The hearing 

representative considered appellant’s financial assets to determine if recovery of the overpayment 

would defeat the purpose of FECA. Appellant provided his currently monthly income and 

expenses in a Form OWCP-20 on January 31, 2019, as well as a summary of his assets. The 

hearing representative properly determined that appellant listed available assets of $69,282.72, 

which included $2,482.16 in his checking account, $8,500.56 in a credit union account, $18,300.00 

in a money market account, and approximately $40,000 in CDs. The evidence of record therefore 

established that appellant’s assets exceeded the base asset amount of $6,200.00 for an individual.

18

 

It was therefore unnecessary for OWCP to consider whether his monthly income exceeded his 

monthly ordinary and necessary expenses by more than $50.00.

Additionally, the evidence 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. Furthermore, he has not known that he would experience 

severe financial hardship in attempting to repay the debt as his current monthly income exceeds 

 

14 Federal (FECA) Procedure Manual, supra note 11, at Chapter 6.400.4(a)(3) (September 2018). 

15 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

16 Federal (FECA) Procedure Manual, supra note 11 at Chapter 6.400.4c(3) (September 2018).

17 Supra note 12.

18 See I.U., Docket No. 20-0129 (issued July 31, 2020).
8

his monthly expenses and he is still in receipt of ongoing compensation benefits. Accordingly, 

OWCP properly denied waiver of the overpayment.19

On appeal appellant alleges that payment would impact his income and quality of life 

seriously as he is now 70 years old and had no way of implementing any addition to his income. 

As noted, a finding that a claimant was without fault does not automatically result in waiver of the 

overpayment.20 OWCP must determine whether recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience. As explained above, OWCP properly 

denied waiver of recovery as recovery of the overpayment would not defeat the purpose of FECA 

or be against equity and good conscience.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations21 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.22

ANALYSIS -- ISSUE 3

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

$400.00 from appellant’s continuing compensation payments every 28 days. 

The record supports that, in requiring repayment of the overpayment by deducting $400.00 

from appellant’s compensation payments every 28 days, OWCP took into consideration the 

financial information he submitted as well as the factors set forth in 20 C.F.R. § 10.441 and found 

that this method of recovery would minimize resulting hardship. Therefore, OWCP properly 

required recovery of the overpayment by deducting $400.00 every 28 days.23

CONCLUSION

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

$27,889.50 for the period February 1, 2014 through July 21, 2018, for which he was without fault, 

because he concurrently received FECA benefits and SSA age-related retirement benefits without 

 

19 See id.; see also J.R., Docket No. 17-0181 (issued August 12, 2020).

20 Supra note 13.

21 20 C.F.R. § 10.441(a).

22 Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020). 

23 See L.G., Docket No. 19-1274 (issued July 10, 2020).
9

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 $400.00 from 

his continuing compensation payments every 28 days. 

ORDER

IT IS HEREBY ORDERED THAT the April 9, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 25, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board