United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Dallas, TX, Employer

__________________________________________

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Docket No. 21-1019

Issued: April 5, 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 June 25, 2021 appellant, through counsel, filed a timely appeal from a May 18, 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 to consider the merits of the 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 May 25, 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 $8,402.67 for the period September 1, 2016

through November 7, 2020 for which he was without fault, because he concurrently received 

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

benefits without 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

On March 8, 2006 appellant, then a 55-year-old tractor trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that on March 9, 2006 he injured his right eye and both knees 

when he slipped, lost his balance, and fell head first from his vehicle while in the performance of 

duty. He stopped work on the date of injury. OWCP accepted the claim for open wound of the 

forehead, bilateral knee sprain, medial meniscus tear of the left knee, neck sprain, bilateral wrist 

sprain/traumatic arthropathy, bilateral carpal tunnel syndrome, sensory disorders of the eyelid, 

brachial neuritis or radiculitis, post-concussion syndrome, and post-traumatic intractable vascular 

migraine headache. It paid appellant wage-loss compensation on the supplemental rolls as of 

April 24, 2006 and on the periodic rolls as of October 29, 2006. Appellant was separated from 

employment on June 21, 2008.

On March 22, 2019 and October 21, 2020 OWCP forwarded a FERS/SSA dual benefits 

worksheet to SSA.

On October 28, 2020 SSA provided OWCP with a completed FERS/SSA dual benefit 

form. The form indicated that appellant became entitled to SSA age-related retirement benefits,

effective September 2016. The form further indicated that, with FERS, appellant was entitled to 

monthly payments of $2,370.70, effective September 2016; $2,377.80, effective December 2016;

$2,425.30, effective December 2017; $2,493.20, effective December 2018; and $2,533.00,

effective December 2019. Without FERS, he was entitled to a monthly payment rate of $2,209.50,

effective September 2016; $2,216.10, effective December 2016; $2,260.40, effective December

2017; $2,323.60, effective December 2018; and $2,360.70, effective December 2019.

OWCP completed a FERS offset overpayment calculation worksheet on 

November 5, 2020. It calculated the amount that it should have offset from appellant’s wage-loss 

compensation from September 1, 2016 through November 7, 2020. OWCP found that, effective

September 1, 2016, the monthly offset was $161.20 or $148.80 every 28 days; effective 

December 1, 2016, the monthly offset was $161.70 or $149.26 every 28 days; effective 

December 1, 2017, the monthly offset was $164.90 or $152.22 every 28 days; effective 

December 1, 2018, the monthly offset was $169.60 or $156.55 every 28 days; and effective 

December 1, 2019, the monthly offset was $172.30 or $159.05 every 28 days. It divided the 28-

day offset amount to find the daily amount, which it multiplied by the number of days in each 

period from September 1, 2016 through November 7, 2020 to find the amount that it had overpaid 

appellant for each period. OWCP added the amounts for each period and determined that it should 

have offset a total of $8,402.67 from his wage-loss compensation.
3

In a November 10, 2020 letter, OWCP informed appellant that it would begin deducting 

$159.05, the portion of SSA age-related retirement benefits attributable to his federal service, from 

his ongoing 28-day periodic compensation payments.

On November 10, 2020 OWCP notified appellant of its preliminary overpayment 

determination that he had received an overpayment of compensation in the amount of $8,402.67

because it had failed to reduce his wage-loss compensation for the period September 1, 2016

through November 7, 2020 by the portion of his SSA age-related retirement benefits that was 

attributable to federal service. It further advised him of its preliminary determination that he was 

without fault in the creation of the overpayment. OWCP requested that appellant complete an 

enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial

documentation, including income tax returns, bank account statements, bills and cancelled checks, 

pay slips, and any other records to support her reported income and expenses. Additionally, it

provided an overpayment action request form and advised her that, within 30 days of the date of 

the letter, she could request a final decision based on the written record or request a prerecoupment 

hearing.

On December 4, 2020 appellant requested waiver of recovery of the overpayment and a 

prerecoupment hearing. The hearing was held telephonically on March 11, 2021.

On December 15, 2020 appellant provided a completed Form OWCP-20 listing total 

monthly income of $6,311.08 including his SSA benefits of $2,388.00 and his wife’s SSA benefits 

of $989.00, Department of Veterans Affairs (VA) benefits of $1,234.68, and Teamsters pension of 

$1,700.00. He listed total monthly expenses of $5,014.46. Appellant listed assets totaling 

$2,761.18 including $124.00 in cash, and $2,637.18 in his checking account.

By decision date May 18, 2021, OWCP’s hearing representative finalized the preliminary 

overpayment determination, finding that appellant had received an $8,402.67 overpayment of 

compensation from September 1, 2016 through November 7, 2020 because he had concurrently 

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

appropriate offset. He also found that appellant was without fault in the creation of the 

overpayment, but denied waiver of recovery of the overpayment. OWCP’s hearing representative

listed appellant’s monthly income as $7,497.00 because he had not included his FECA benefits of 

$2,689.53 a month, resulting in a total monthly income of $9,001.21. He found that appellant’s 

monthly income exceeded his monthly expenses of $5,014.46 by more than $50.00 a month, such 

that recovery of the overpayment would not defeat the purpose of FECA. OWCP’s hearing 

representative explained that, because appellant failed to meet the first prong of two-prong test of 

whether recovery of the overpayment would defeat the purpose of FECA, it was not necessary to 

consider waiver of recovery on this basis. He further found appellant had not submitted evidence 

that he made any financial decision that changed his position for the worse as a result of the receipt 

of the overpaid benefits and, therefore, had not established that recovery of the debt would be 

against equity and good conscience. OWCP’s hearing representative required recovery of the 

overpayment by deducting $500.00 every 28 days from appellant’s continuing compensation 

payments.
4

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.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 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. 7

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $8,402.67 for the period September 1, 2016 through 

November 7, 2020 for which he was without fault, because he concurrently received FECA wageloss compensation benefits and SSA age-related retirement benefits without appropriate offset.

As noted, a claimant cannot concurrently receive FECA wage-loss compensation and SSA

age-related retirement benefits attributable to federal service for the same period. 8 OWCP paid 

appellant wage-loss compensation for total disability for the period September 1, 2016 through 

November 7, 2020. The information provided by SSA establishes that he began receiving SSA 

age-related retirement benefits on September 1, 2016. Accordingly, the Board finds that fact of 

overpayment has been established.9

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 the SSA rates with FERS and without FERS for 

specific periods from September 1, 2016 through November 7, 2020. OWCP set forth its 

calculations of the amount that should have been offset during the relevant period based on 

information provided by SSA for the period September 1, 2016 through November 7, 2020.

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

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

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

8

Supra note 5.

9

See S.H.,Docket No. 20-1157 (issued December 23, 2020); K.H.,Docket No. 18-0171 (issued August 2, 2018).
5

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

period September 1, 2016 through November 7, 2020 and finds that an overpayment of 

compensation in the amount of $8,402.67 was created.10

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA11 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.12

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.13

ANALYSIS -- ISSUE 2

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

As OWCP found appellant not at 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. 14 It considered his 

financial information to determine if recovery of the overpayment would defeat the purpose of 

FECA.

The Board finds that OWCP properly determined that appellant did not require 

substantially all of his income to meet ordinary living expenses. It found that, after its review of 

the evidence of record, he had total current monthly income of $9,001.21 and total monthly 

expenses of $5,014.46, which left more than $50.00 of disposable income with which to repay the 

debt. As appellant’s monthly income exceeds his ordinary and necessary living expenses by more 

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

11 Supra note 3.

12 J.T., Docket No. 21-0010 (issued September 30, 2021); G.L.,Docket No. 19-0297 (issued October 23, 2019).

13 20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of 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).

14 Id. at § 10.436.
6

than $50.00, the Board finds that he did not need substantially all of his income for ordinary and 

necessary living expenses.

As appellant failed to establish that recovery of the overpayment of compensation would 

either defeat the purpose of FECA or be against equity and good conscience, the Board finds that 

OWCP did not abuse its discretion in denying 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. 15

Section 10.411 of OWCP’s regulations 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 

soon as the error is discovered or his or her attention is called to 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.”

16

ANALYSIS -- ISSUE 3

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

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

The record supports that, in requiring repayment of the overpayment by deducting $500.00 

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 $500.00 from his continuing compensation 

every 28 days.17

CONCLUSION

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

$8,402.67 for the period September 1, 2016 through November 7, 2020, for which he was without 

fault, because he concurrently received FECA wage-loss compensation and SSA age-related 

retirement benefits without appropriate offset. The Board further finds that OWCP properly 

15 20 C.F.R. § 10.441; see J.T., supra note 12; M.P.,Docket No. 18-0902 (issued October 16, 2018).

16 Id. at § 10.441(a).

17 See V.G., Docket No. 20-1520 (issued September 21, 2021); J.R.,Docket No. 17-0181 (issued August12, 2020); 

L.G., Docket No. 19-1274 (issued July 10, 2020).
7

denied waiver of recovery of the overpayment and properly required recovery of the overpayment 

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

ORDER

IT IS HEREBY ORDERED THAT the May 18, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 5, 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