United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.R., Appellant

and

U.S. POSTAL SERVICE, NIAGARA FALLS 

POST OFFICE, Niagara Falls, NY, Employer

__________________________________________

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Docket No. 21-0243

Issued: January 6, 2022

Appearances: Case Submitted on the Record

Wandra E. Evans, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 14, 2020 appellant, through his representative, filed a timely appeal from an 

October 22, 2020 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 October 22, 2020 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 $17,560.49 intermittently from August 1, 2009 

through June 22, 2019 for which he was without fault, as he concurrently received Social Security 

Administration (SSA) age-related retirement benefits and FECA wage-loss compensation without 

appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment; and 

(3) whether OWCP properly required recovery of the overpayment by deducting $1,250.00 from 

appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On January 30, 2009 appellant, then a 62-year-old custodian, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he sustained injuries to his sacrum, spine, head, and wrists 

when he slipped and fell in snow and slush when pulling a large snowblower while in the 

performance of duty. OWCP initially accepted the claim for sprains of the neck, wrists, and lumbar 

and thoracic regions of the back. It later expanded the acceptance of the claim to include lumbar 

spinal stenosis and left hand osteoarthrosis. Appellant stopped work on January 31, 2009. OWCP 

paid appellant wage-loss compensation on the supplemental rolls beginning March 18, 2009 and 

on the periodic rolls beginning June 7, 2009.

On October 15 and November 16, 2012 OWCP forwarded to SSA Federal Employees 

Retirement System (FERS)/SSA dual benefits calculation forms to obtain information regarding 

appellant’s receipt of SSA age-related retirement benefits.

On November 21, 2012 SSA completed the dual benefits calculation form, which listed 

appellant’s SSA age-related retirement benefit rates with and without a FERS offset from 

August 2009 through December 2012. The form indicated that: beginning August 2009, 

December 2009, and December 2010, appellant’s SSA rate with FERS was $1,229.40 and without 

FERS was $885.70; beginning December 2011, his SSA rate with FERS was $1,273.70 and 

without FERS was $917.50; and beginning December 2012, his SSA rate with FERS was 

$1,295.30 and without FERS was $933.10.

On December 7, 2012 OWCP prepared a FERS offset overpayment calculation worksheet 

wherein it noted the calculation of appellant’s SSA offset overpayment from August 1, 2009 

through December 15, 2012. The total overpayment was determined to be $18,310.04. OWCP 

found that appellant received an overpayment of compensation in the amount of $1,382.35 for the 

period August 1 through November 30, 2009; $4,135.73 for the period December 1, 2009 through 

November 30, 2010; $4,135.73 for the period December 1, 2010 through November 30, 2011; 

$4,297.89 for the period December 1, 2011 through November 30, 2012; and $4,358.34 for the 

period December 1 through 15, 2012.4

By letter dated December 11, 2012, OWCP notified appellant that, based on information 

provided by SSA regarding the amount of his age-related retirement benefits attributable to his 

federal service, it had adjusted his FECA wage-loss compensation and that he would receive a net 

payment $2,275.26 every 28 days after the SSA offset. In a payment report for the period 

December 16, 2012 through January 12, 2013, it was noted that a FERS/SSA offset in the amount 

4 The number of days between December 1 and 15, 2012 was incorrectly noted as 365 days.
3

of $334.34 had been deducted from appellant’s compensation payments. Miscellaneous 

deductions were noted as $376.58. The record reflects that appellant received a net payment of 

$2,609.60 every 28 days up to December 15, 2012, and then $2,275.26 as of December 16, 2012. 

The record reflects that appellant received two payments of $2,275.26 for the period December 16, 

2012 to January 12, 2013. One payment was issued on the periodic rolls on January 12, 2013 and 

the second payment was issued on the supplemental rolls on March 1, 2013. The record also 

reflects that appellant received two payments of $2,268.28 for the period January 13 through 

February 9, 2013. One payment was issued on the periodic rolls on February 9, 2013 and the 

second payment was issued on the supplemental rolls on March 1, 2013.

On May 23, 2019 OWCP provided SSA with another FERS/SSA dual benefits calculation 

form.

On May 30, 2019 SSA completed the dual benefits calculation form, which listed 

appellant’s SSA age-related retirement benefit rates with a FERS offset and without a FERS offset 

from August 2009 through December 2018. The SSA representative noted that appellant became 

eligible to receive SSA age-related retirement benefits in August 2009. The form indicated that: 

beginning August and December 2009 and December 2010, appellant’s SSA rate with FERS was 

$1,229.40 and without FERS was $880.10; beginning December 2011, his SSA rate with FERS 

was $1,273.70 and without FERS was $911.70; beginning December 2012, his SSA rate with 

FERS was $1,295.30 and without FERS was $927.20; beginning December 2013, his SSA rate 

with FERS was $1,314.70 and without FERS was $941.00; beginning December 2014 and 

December 2015, his SSA rate with FERS was $1,337.00 and without FERS was $957.00; 

beginning December 2016, his SSA rate with FERS was $1,341.00 and without FERS was 

$959.90; beginning December 2017, his SSA rate with FERS was $1,367.80 and without FERS 

was $979.10; and beginning December 2018, his SSA rate with FERS was $1,406.10 and without 

FERS was $1,006.40.

In a payment report for the period May 26 through June 22, 2019, miscellaneous 

deductions from appellant’s FECA wage-loss compensation in the amount of $25.28 were noted. 

On June 24, 2019 OWCP prepared a FERS offset overpayment calculation worksheet 

wherein it noted the calculation of appellant’s SSA offset overpayment from August 1, 2009 

through June 22, 2019. The total overpayment was determined to be $44,213.68. OWCP found 

that appellant received an overpayment of compensation in the amount of $1,404.88 for the period 

August 1 through November 30, 2009; $4,203.12 for the period December 1, 2009 through 

November 30, 2010; $4,203.12 for the period December 1, 2010 through November 30, 2011; 

$4,367.87 for the period December 1, 2011 through November 30, 2012; $4,429.34 for the period 

December 1, 2012 through November 30, 2013; $4,496.72 for the period December 1, 2013 

through November 30, 2014; $4,572.53 for the period December 1, 2014 through November 30, 

2015; $4,585.05 for the period December 1, 2015 through November 30, 2016; $4,585.76 for the 

period December 1, 2016 through November 30, 2017; $4,677.21 for the period December 1, 2017 

through November 30, 2018; and $2,688.09 for the period December 1, 2018 through 

June 22, 2019.

By letter dated June 24, 2019, OWCP notified appellant that, based on information 

provided by SSA regarding the amount of his SSA age-related retirement benefits attributable to 

federal service, it had adjusted his FECA wage-loss compensation and that he would receive 

$2,508.31 every 28 days after the SSA offset.
4

In a payment report for the period June 23 through July 20, 2019, miscellaneous deductions 

from appellant’s FECA wage-loss compensation in the amount of $463.31 were noted. 

On August 2, 2019 OWCP advised appellant of its preliminary overpayment determination 

that he had received an overpayment of compensation in the amount of $44,213.68 for the period 

August 1, 2009 through June 22, 2019 because he concurrently received FECA wage-loss 

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

a FERS offset calculation sheet setting forth the claimed basis of the overpayment. OWCP

determined that he was without fault in the creation of the overpayment. It requested that the 

employee submit a completed overpayment recovery questionnaire (Form OWCP-20) to 

determine a fair repayment method. OWCP requested 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. OWCPfurther provided him with 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 August 14, 2019 appellant requested a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review. He contested the overpayment and submitted a

completed Form OWCP-20, which delineated his income, expenses, and assets. A hearing was 

held on November 6, 2019.

By decision dated January14, 2020, the hearing representative found that appellant was 

overpaid from August 1, 2009 through December 15, 2012. The hearing representative remanded 

the case, however for OWCP to recalculate the amount of overpayment, as a review of appellant’s 

compensation payments indicated that OWCP began deducting the FERS/SSA offset from 

appellant’s payments effective December 16, 2012. The hearing representative noted that it 

appeared that the offset continued from that date, and that on remand, OWCP should confirm that 

each time appellant’s benefits were suspended, the offset continued to be applied and that OWCP 

should properly determine any remaining offset and the correct overpayment amount.

On January 24, 2020 OWCP prepared a FERS offset overpayment calculation worksheet 

wherein it explained its calculations of appellant’s SSA offset overpayment from August 1, 2009 

through December 15, 2012. The total overpayment amount was determined to be $14,361.00. 

OWCP found that appellant received an overpayment of compensation in the amount of $9,811.11 

for the period August 1, 2009 through November 30, 2011, $4,367.87 for the period December 1, 

2011 through November 30, 2012, and $182.03 for the period December 1 through 15, 2012. 

On January 24, 2020 OWCP issued a de novo preliminary overpayment determination, 

finding that an overpayment of compensation in the amount of $14,361.00 had been created for 

the period August 1, 2009 through December 15, 2012 because he concurrently received FECA 

wage-loss compensation and SSA age-related retirement benefits without an appropriate offset. It 

included a copy of the FERS offset overpayment calculation worksheet setting forth the claimed 

basis of the overpayment. OWCP determined that he was without fault in the creation of the 

overpayment. It requested that the employee submit a completed overpayment recovery 

questionnaire (Form OWCP-20) to determine a fairrepayment method. OWCP requested 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. OWCP further provided 
5

him with 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 January 31, 2020 appellant requested a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review. He contested the overpayment and requested waiver 

of recovery as he had been found without fault in the creation of the overpayment.

On April 6, 2020 a hearing representative found that the case was not in posture for a 

prerecoupment hearing because, while the January 24, 2020 preliminary overpayment 

determination of had found an overpayment for the period August 1, 2009 through December 15, 

2012, it had not made determinations of any other periods of overpayment. The hearing 

representative set aside the preliminary overpayment determination of January 24, 2020 and 

remanded the case for recalculation of appellant’s full overpayment amount for the period 

August 1, 2009 through June 22, 2019.

OWCP reviewed the record of appellant’s compensation payment history from 

September 23, 2012 through June 22, 2019, which included a record of miscellaneous deductions 

taken during that period. 

On April 9, 2020 OWCP prepared a FERS offset overpayment calculation worksheet 

wherein it noted the calculation of appellant’s SSA offset overpayment from August 1, 2009 

through June 22, 2019. The total overpayment was determined to be $17,760.49. OWCP found 

that appellant received an overpayment of compensation in the amount of $9,811.11 for the period 

August 1, 2009 through November 30, 2011, $4,367.87 for the period December 1, 2011 through 

June 30, 2012, $182.03 for the period December 1 through 15, 2012, $339.78 for the period 

January 13 through February 9, 2013, $371.61 for the period November 2 through 30, 2018, and 

$2,688.09 for the period December 1, 2018 through June 22, 2019.

On April 9, 2020 OWCP issued a preliminary overpayment determination finding that an 

overpayment of compensation in the amount of $17,760.49 has been created because appellant 

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

based upon his federal service, without appropriate offset. It provided calculations for the 

following periods of overpayment based on the FERS/SSA offset: August 1, 2009 through 

November 30, 2011; December 1 through November 30, 2012; December 1 through 15, 2012; 

January 13 through February 9, 2013; November 2 through 30, 2018; and December 1, 2018 

through June 22, 2019. OWCP determined that he was without fault in the creation of the 

overpayment. It requested that the employee submit a completed overpayment recovery 

questionnaire (Form OWCP-20) to determine a fair repayment method. OWCPrequested 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. OWCP further provided 

him with 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 April 24, 2020 appellant requested a prerecoupment hearing 

before a representative of OWCP’s Branch of Hearings and Review. He requested waiver of 

recovery of the overpayment as he was without fault in the creation of the overpayment. By letter 

dated August 7, 2020, appellant’s then-counsel requested that the hearing request be converted to 

a request for review of the written record.
6

In a Form OWCP-20 dated August 25, 2020, appellant indicated that he had a total monthly 

income of $5,067.98 and listed total monthly expenses of $3,177.08. He advised that he had 

$150.00 in cash, a checking account balance of $61,615.83, a savings account balance of 

$54,795.86, and a Thrift Savings Plan account balance of $199,755.42, for total funds of 

$316,317.11. Appellant submitted financial documentation in support of his reported income, 

expenses, and assets.

By decision dated October 22, 2020, OWCP’s hearing representative finalized the 

preliminary overpayment determination, finding that appellant had received an overpayment of 

compensation in the amount of $17,560.49 because OWCP failed to offset his compensation 

payments by the portion of his SSA age-related retirement benefits that were attributable to his 

federal service for the following periods: August 1, 2009 through November 30, 2011; 

December 1 through November 30, 2012; December 1 through 15, 2012; January 13 through 

February 9, 2013; November 2 through 30, 2018; and December 1, 2018 through June 22, 2019. 

The hearing representative further found that appellant was without fault in the creation of the 

overpayment, but denied waiver of recovery of the overpayment because the evidence of record 

failed to establish that recovery of the overpayment would defeat the purpose of FECA or would 

be against equity and good conscience. The hearing representative noted that appellant’s monthly 

discretionary income of over $1,800.00 and sufficient cash assets were sufficient to repay the debt 

in full. The hearing representative found that OWCP would recover the overpayment by deducting 

$1,250.00 every 28 days from appellant’s continuing compensation payments. 

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA 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.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 the implementing regulations requires that OWCP reduce the amount 

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

federal service of the employee.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 an overpayment 

of compensation intermittently from August 1, 2009 through June 22, 2019 for which he was 

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802 

(issued August 20, 2018).

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

without fault, as he concurrently received SSA age-related retirement benefits and FECA wageloss compensation without appropriate offset. 

The record indicates that, while appellant was in receipt of wage-loss compensation under 

FECA, he also intermittently received SSA age-related retirement benefits attributable to federal 

service without appropriate offset. As previously noted, OWCP is required 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.9 Fact of overpayment has, therefore, been established. 

The Board further finds, however, that the case is not in posture for decision with regard 

to the amount of the overpayment. On remand from the April 6, 2020 hearing representative 

decision OWCP recalculated the overpayment. The total overpayment was determined to be 

$17,760.49. OWCP found that appellant received an overpayment of compensation in the amount 

of $9,811.11 for the period August 1, 2009 through November 30, 2011, $4,367.87 for the period 

December 1, 2011 through June 30, 2012, $182.03 for the period December 1 through 15, 2012,

$339.78 for the period January 13 through February 9, 2013, $371.61 for the period November 2 

through 30, 2018, and $2,688.09 for the period December 1, 2018 through June 22, 2019. 

However, it did not fully explain how it determined the intermittent periods and calculated the 

amounts. 

A claimant is entitled to an overpayment decision that clearly explains how the amount 

was calculated.10 The Board finds that the overpayment decision in this case does not provide 

such an explanation. Therefore, the amount of overpayment has not been established.

On remand OWCP shall explain how it determined the intermittent periods and prepare 

detailed calculations setting forth the corresponding amounts of overpayment. Following this and 

other such further development as deemed necessary OWCP shall issue a de novo preliminary

overpayment determination.11

CONCLUSION

The Board finds that appellant received an overpayment of compensation,for which he 

was without fault, as he concurrently received Social Security Administration (SSA) age-related 

retirement benefits and FECA wage-loss compensation benefits without appropriate offset. The 

Board further finds that the amount of the overpayment is not in posture for decision. 

9

Id.; supra note 7.

10 See L.J., Docket No. 19-0800 (issued October 17, 2019); A.J.,Docket No. 18-1152 (issued April1, 2019); J.W.,

Docket No. 15-1163 (issued January 13, 2016);O.R., 59 ECAB 432 (2008) with respect to overpayment decisions, 

OWCP must provide clear reasoning showing how the overpayment was calculated);see JennyM. Drost, 56 ECAB 

587 (2005) (to comply with OWCP’s overpayment procedures, an overpayment decision must contain a clearly 

written explanation indicating how the overpayment was calculated).

11 In light of the Board’s disposition of Issue 1, Issues 2 and 3 rendered moot.
8

ORDER

IT IS HEREBY ORDERED THAT the October 22, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed in part, and set aside in part. The case is remanded

for further proceedings consistent with this decision of the Board. 

Issued: January 6, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board