United States Department of Labor

Employees’ Compensation Appeals Board

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B.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Roxbury, MA, Employer

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Docket No. 21-0277

Issued: May 6, 2022

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On December 3, 20201 appellant filed a timely appeal from a June 10, 2020 merit decision 

of the Office of Workers’Compensation Programs (OWCP).2 Pursuant to the Federal Employees’

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from June 10, 2020, the date of OWCP’s decision, was 

December 7, 2020. Since using December 14, 2020, the date the appeal was received by the Clerk of the Appellate 

Boards would result in the loss of appeal rights, the date of the postmarkis considered the date of filing. The date of 

the U.S. Postal Service postmark is December 3, 2020, which renders the appeal timely filed.

2 Appellant submitted a timely request for oralargument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board s Rules of Procedure, oral argumentmay be held in the discretion of the Board. 20 C.F.R. § 501.5(a). Appellant 

has not asserted reasons why oral argument is necessary in support of the appeal. The Board, in exercising its 

discretion, denies appellant’s request for oral argumentbecause the issues on appeal can adequately be addressed in a 

decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board 

decision and not serve a useful purpose. As such, the oral argument request is denied, and this decision is based on 

the case record as submitted to the Board.
2

Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

consider the merits of this case.4

ISSUE

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

overpayment of compensation in the amount of $25,186.27 for the period December 1, 2018 

through February 1, 2020, for which he was without fault, because he concurrently received FECA 

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

without an appropriate offset; and (2) whether OWCP properly denied waiver of recovery of the 

overpayment.

FACTUAL HISTORY

On February 12, 2018 appellant, then a 65-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed a hammer toe bunion and a curved toe on 

his left foot due to factors of his federal employment, including prolonged walking on concrete 

pavement for approximately 14 hours per day at work. On December 10, 2018 OWCP accepted 

his claim for hallux rigidus, left foot and other hammer toe(s) (acquired), left foot. Appellant 

stopped work on December 30, 2017. OWCP paid him wage-loss compensation on the 

supplemental rolls, effective February 1, 2018.

In a December 13, 2019 financial disclosure statement (Form CA-1032), appellant 

indicated that he had received benefits from SSA as part of an annuity for federal service. 

On December 17, 2019 OWCP forwarded a Federal Employees Retirement System 

(FERS)/SSA dual benefits worksheet to the SSA to obtain the information necessary to determine

whether an offset of compensation benefits was required. 

On January 22, 2020 SSA completed the dual benefits form, which indicated that appellant 

had been in receipt of SSA age-related retirement benefits since December 2018. The form 

reported his SSA age-related retirement benefit rates with and without a FERS offset as follows: 

beginning December 2018, the SSA rate with FERS was $2,335.90 and without FERS was 

$556.20; beginning January 2019, the SSA rate with FERS was $2,337.10 and without FERS was 

$556.20; and beginning December 2019, the SSA rate with FERS was $2,374.40 and without 

FERS was $565.00. 

On February 3, 2020 OWCP prepared a FERS offset overpayment calculation worksheet 

wherein it calculated the daily FERS offset amount and multiplying the amount by the number of 

days for the period December 1, 2018 through February 1, 2020. The form indicated that, from 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that, following the June 10, 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.
3

December 1 to 31, 2018, appellant received an overpayment of $1,818.81,for the period January 1 

through November 30, 2019, he received an overpayment of $19,609.47, and for the period 

December 1, 2019 through February 1, 2020, he received an overpayment of $3,757.98, for a total 

overpayment of $25,186.27. 

In a letter dated February 3, 2020, OWCP notified appellant that, based on the information 

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

service, his FECA compensation would be reduced to $1,969.78 every 28 days. 

On May 5, 2020 OWCP issued a preliminary overpayment determination, finding that an 

overpayment of compensation in the amount of $25,186.27 had been created for the period 

December 1, 2018 through February 1, 2020 becauseappellant concurrently received FECA wageloss compensation and SSA age-related retirement benefits without an appropriate offset. It 

determined 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 repayment method and advised him that he could request a waiver of the 

overpayment. It further requested that he 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 further 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. 

No response was received. 

By decision dated June 10, 2020, OWCP finalized its preliminary overpayment 

determination, finding that appellant had received an overpayment of compensation in the amount 

of $25,186.27 for the period December 1, 2018 through February 1, 2020 because he concurrently 

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

appropriate offset. It further found that he was without fault in the creation of the overpayment, 

but denied waiver of recovery, because he had not submitted evidence in response to its 

preliminary overpayment determination. OWCP required recovery of the overpayment by 

payment in-full within 30 days. 

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 FECA’s implementing regulations requires that OWCP reduce the 

amount of compensation by the amount of SSA benefits that are attributable to federal service of 

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.
4

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 in the amount of $25,186.27 as he concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation for the period December 1, 2018 through 

February 1, 2020, without appropriate offset.

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

age-related retirement benefits attributable to federal service for the same period. 9 The evidence 

of record establishes that appellant had concurrently received wage-loss compensation benefits 

and SSA age-related retirement benefits that were attributable to his federal service from 

December 1, 2018 through February 1, 2020. Consequently, the fact of the 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. SSA provided appellant’s 

SSA age-related retirement benefit rates with FERS and without FERS during the applicable 

period. OWCP found that, since SSA age-related retirement benefits were paid monthly and 

FECA benefits were paid every 28 days, the monthly offset had to be adjusted to a 28 -day payment 

cycle amount. This amount differed for each period beginning December 2018. OWCP calculated 

that the lack of offset from December 1, 2018 through February 1, 2020, resulting in an 

overpayment total of $25,186.27. The Board has reviewed OWCP’s calculations and finds that it 

properly determined that appellant received prohibited dual benefits totaling $25,186.27, thus 

creating an overpayment of compensation in that amount, for the period December 1, 2018 through 

February 1, 2020.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP 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.”

10

 Section 10.438 of OWCP’s regulations provides 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 

7

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

8 FECA Bulletin No. 97-09 (February 3, 1997).

9

Supra note 6; see D.W., Docket No. 20-1533 (issued May 27, 2021); M.R., Docket No. 20-0427 (issued 

October 30, 2020); A.C., Docket No. 18-1550 (issued February 21, 2019); N.B., Docket No. 18-0795 (issued 

January 4, 2019). 

10 5 U.S.C. § 8129.
5

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

Failure to submit the requested information within 30 days of the request shall result in denial of 

waiver.11

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.12 Appellant, 

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

documentation to OWCP.13

In its preliminary overpayment determination, dated May 5, 2020, OWCP requested that 

appellant provide a completed Form OWCP-20 and supporting financial documentation, including 

copies of income tax returns, bank account statements, bills and canceled checks, pay slips, and 

any other records to support income and expenses. It advised that it would deny waiver of recovery 

if he failed to furnish the requested financial information within 30 days. Appellant did not provide 

a completed Form OWCP-20 or otherwise submit financial information necessary for OWCP to 

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

and good conscience.

Consequently, as appellant has not submitted the information required under 20 C.F.R. 

§ 10.438 of OWCP’s regulations, necessary to determine his eligibility for waiver, the Board finds 

that OWCP properly denied waiver of recovery of the overpayment.14

CONCLUSION

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

of compensation in the amount of $25,186.27 as he concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation for the period December 1, 2018 through 

February 1, 2020, without appropriate offset. The Board further finds that OWCP properly denied 

waiver of recovery of the overpayment.

11 20 C.F.R. § 10.438.

12 Id. at § 10.436.

13 Id. at § 10.438;S.P., Docket No. 19-1318 (issued July 31, 2020).

14 See T.E., Docket No. 19-0348 (issued December 11, 2019).
6

ORDER

IT IS HEREBY ORDERED THAT the June 10, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 6, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board