United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.T., Appellant

and

DEPARTMENT OF THE NAVY, MARE 

ISLAND NAVAL SHIPYARD, Vallejo, CA, 

Employer

__________________________________________

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Docket No. 20-0524

Issued: October 27, 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

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On January 6, 2020 appellant filed a timely appeal from a December 19, 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.

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $6,934.82 during the period August 1, 2016 

1 The Board notes that, following the December 19, 2019 decision, the Board and 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

5 U.S.C. § 8101 et seq.
2

through October 12, 2019, for which she was without fault, as she concurrently received Social 

Security Administration (SSA) age-related retirement benefits and FECA wage-loss compensation 

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 

$470.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On August 10, 1987 appellant, then a 49-year-old procurement clerk (typing), filed an 

occupational disease claim (Form CA-2) alleging that she developed low back pain due to factors 

of her federal employment.4 She noted that she first became aware of her condition on June 12, 

1985 and realized its relation to her federal employment on April 15, 1987. Appellant did not stop 

work. On September 20, 1989 OWCP accepted her claim for aggravation of bulging disc L3-S1. 

It paid appellant’s wage-loss compensation on the supplemental rolls through March 9, 1989 and

then on the periodic rolls beginning April 7, 1991.

A notification of personnel action (Form SF-50) from the employing establishment 

indicated that appellant’s retirement coverage was under the Federal Employees Retirement 

System (FERS).

On August 16, 2019 OWCP forwarded SSA a FERS/SSA dual benefits calculation 

worksheet to determine whether an offset of compensation benefits was required.

On October 7, 2019 OWCP received SSA’s completed FERS/SSA dual benefits 

calculation worksheet dated October 2, 2019, wherein SSA listed appellant’s SSA age-related 

retirement benefit rates with and without a FERS offset as follows: beginning August 2016 the 

monthly SSA rate with FERS was $1,147.10 and without FERS was $970.90; beginning

December 1, 2016 appellant’s SSA rate with FERS was $1,150.50, and without FERS was 

$973.80; beginning December 1, 2017 appellant’s SSA rate with FERS was $1,173.50, and 

without FERS was $993.20; and beginning December 1, 2018 appellant’s SSA rate with FERS 

was $1,206.30 and without FERS was $1,021.00.

On October 21, 2019 OWCP notified appellant that FECA requires that her continuing 

compensation benefits be reduced by that portion of SSA retirement benefits attributable to her 

federal service.

OWCP completed a FERS offset overpayment calculation form on November 8, 2019. It 

determined the overpayment amount by multiplying the FERS offset amount by the number of 

3 Docket No. 08-0128 (issued June4, 2008); Docket No. 92-2117 (issued December 21, 1993).

4 The case record indicates that a ppellant received disability benefits from SSA from November 1988 through 

July 2016.
3

days in each period August 1, 2016 through October 21, 2019. OWCP found that: from August 1

through November 30, 2016, appellant received an overpayment of compensation in the amount 

of $708.67; from December 1, 2016 through November 30, 2017 appellant received an 

overpayment of compensation in the amount of $2,126.23; from December 1, 2017 through 

November 30, 2018 appellant received an overpayment of compensation in the amount of 

$2,169.54; and from December 1, 2018 through October 21, 2019 appellant received an 

overpayment of compensation in the amount of $1,930.38. This resulted in a total overpayment 

in the amount of $6,934.82.

On November 8, 2019 OWCPmade a preliminary overpayment determination, finding that 

appellant had received an overpayment of compensation in the amount of $6,934.82, for which 

she was without fault, because her wage-loss compensation benefits for the period August 1, 2016 

through October 12, 2019 that had not been reduced to offset her SSA age-related retirement 

benefits attributable to federal service. It further advised her of its preliminary determination that 

she was withoutfault in the creation of the overpayment. OWCP requested that appellant complete 

the enclosed overpayment recovery questionnaire (Form OWCP-20) and 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. Additionally, OWCP notified 

appellant that, within 30 days of the date of the letter, she could request a final decision based on 

the written record or a prerecoupment hearing.

On December 2, 2019 OWCP received an undated Form OWCP-20. Appellant advised 

that she had none of the incorrectly paid checks or payments in her possession. She did not 

otherwise complete the form. Appellant provided a copy of her 2018 federal income tax re turn.

By decision dated December 19, 2019, OWCP finalized its preliminary determination that 

appellant had received an overpayment of compensation in the amount of $6,934.82 for the period 

August 1, 2016 through October 12, 2019. It further found that she was without fault in the 

creation of the overpayment, but denied waiver of recovery of the overpayment, because the Form 

OWCP-20 was incomplete. OWCP required recovery of the overpayment by deducting $470.00

from appellant’s continuing compensation payments beginning January 5, 2019.

LEGAL PRECEDENT

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.5 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.6

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 

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.
4

attributable to the employee’s federal service.7 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. 8

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant received a $6,934.82 

overpayment during the period August 1, 2016 through October 12, 2019 because she concurrently 

received FECA wage-loss compensation and SSA age-related retirement benefits, without an 

appropriate offset. 

In its December 19, 2019 decision, OWCP found that an overpayment of compensation 

was created for the period August 1, 2016 through October 12, 2019. The overpayment 

determination 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. 9 The 

information provided by SSA indicated that appellant received SSA age-related retirement benefits 

that were attributable to federal service during the period August 1, 2016 through 

October 12, 2019. Consequently, the fact of overpayment has been established. 

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 benefit

rates that were attributable to her federal service. SSA provided her age-related retirement benefit

rates with FERS, and without FERS for specific periods commencing August 1, 2016 through 

October 12, 2019. OWCP provided its overpayment calculations for each relevant period based 

on SSA’s FERS offset calculation worksheet in its November 8, 2019 preliminary overpayment 

determination.

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

period August 1, 2016 through October 12, 2019 and finds that it properly determined an 

overpayment of compensation in the amount of $6,934.82 was created.10

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 

7

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).

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

9

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).

10 L.L., Docket No. 18-1103 (issued March5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).
5

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

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests 

within OWCP’s discretion pursuant to statutory guidelines.12

Recovery of an overpayment will defeat the purpose of FECA if 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. 13 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. 14

Additionally, 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 Failure to submit the requested information 

within 30 days of the request shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished. 17

ANALYSIS -- ISSUE 2

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

11 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; A.F., Docket No. 19-0054 (issued 

June 12, 2019).

12 A.C., Docket No. 18-1550 (issued February 21, 2019); Robert Atchison, 41 ECAB 83, 87 (1989).

13 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 6.400.4(a)(2) (September 2018).

14 N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 (issued April26, 2019); id. at 

Chapter 6.400.4.a(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 Id. at § 10.438(b).
6

As OWCP found appellant without fault in the creation of the overpayment, waiver of 

recovery of the overpayment 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, however, did not provide a fully completed Form OWCP-20 or provide 

supporting financial documentation to OWCP.

19

In its preliminary determination dated November 8, 2019, OWCP advised appellant that it 

would deny waiver of recovery if she failed to furnish the requested financial information within 

30 days. Appellant did not submit a fully completed Form OWCP-20, nor did she provide 

supporting financial documentation. As a result, OWCP did not have the necessary financial 

information to determine whether waiver of recovery of the overpayment would defeat the purpose 

of FECA or would be against equity and good conscience. 20 The Board thus finds that OWCP 

properly denied waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations 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. 21

ANALYSIS -- ISSUE 3

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

$470.00 every 28 days from appellant’s continuing compensation payments. 

The record supports that, in requiring recovery of the overpayment by deducting $470.00 

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

set forth in section 10.441 and found that this method of recovery would minimize any resulting 

hardship on appellant. Appellant failed to provide sufficient information regarding her income, 

expenses, and assets, and OWCP followed minimum collection guidelines by requiring 

installments large enough to collect the full debt promptly. Therefore, OWCP properly required 

18 Id. at § 10.436.

19 Id. at § 10.438(b); D.M., Docket No. 20-0694 (issued December 31, 2020); M.D., Docket No. 19-1500 (issued 

February24, 2020); T.J., Docket No. 19-1242 (issued January 13, 2020).

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

21 20 C.F.R. § 10.441(a); A.F., supranote 11; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).
7

recovery of the overpayment by deducting $400.00 from her continuing compensation payments 

every 28 days.22

CONCLUSION

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

$6,934.82 during the period August 1, 2016 through October 12, 2019, for which she was without

fault, as she concurrently received FECA wage-loss compensation and SSA age-related retirement 

benefits without 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 

$470.00 every 28 days from her continuing compensation payments.

22 Supra note 13 at Chapter 6.500.8(c)(1) (September 2018); see also K.C., Docket No. 21-0430 (issued 

August 13, 2021).
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ORDER

IT IS HEREBY ORDERED THAT the December 19, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 27, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board