United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.G., Appellant

and

U.S. POSTAL SERVICE, LA SALLE POST 

OFFICE, Niagara Falls, NY, Employer

__________________________________________

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Docket No. 22-0172

Issued: August 15, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 15, 2021 appellant, through counsel, filed a timely appeal from an 

October 27, 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 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 27, 2021decision, appellant submitted additional evidence to OWCP. 

However, the Board’s Rules of Procedures 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 $37,213.62, for the period January 1, 2015 through 

April 24, 2021,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 $356.28 from 

appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On May 18, 2006 appellant, then a 49-year-old letter carrier, filed a notice of recurrence 

(Form CA-2a) alleging that he developed bilateral foot and ankle pain due to factors of his federal 

employment as a result of repetitively lifting and carrying parcels and mounting and dismounting

of his vehicle on a daily basis. OWCP converted this claim to an occupational disease claim (Form 

CA-2) and accepted bilateral ankle arthritis. It paid appellant wage-loss compensation on the 

supplemental rolls from May 20 through July 8, 2006, on the periodic rolls from July 9, 2006 

through August 4, 2007 and November 25, 2007 through September 27, 2008, and pursuant to a 

loss of wage-earning capacity determination from August 5 through November 24, 2007 and 

September 28, 2008 through June 18, 2022.

4

On April 8, 2021 OWCP sent a Federal Employees Retirement System (FERS)/SSA dual 

benefits calculation form to SSA for completion. 

On April 20, 2021 SSA provided a completed FERS/SSA dual benefits calculation form 

wherein SSA advised that, effective January 2015, appellant reached retirement age and became 

eligible for SSA age-related retirement benefits. It calculated his SSA age-related retirement 

benefit rates with FERS offset and without a FERS offset from January 2015 through 

December 2020. Beginning January 2015, the SSA rate with FERS was $1,953.00 and without 

FERS was $1,477.00. Beginning December 2016, the SSA rate with FERS was $1,958.80 and 

without FERS was $1,481.40. Beginning December 2017, the SSA rate with FERS was $1,997.90 

and without FERS was $1,510.90. Beginning December 2018, the SSA rate with FERS was 

$2,053.80 and without FERS was $1,553.20. Beginning December 2019, the SSA rate with FERS 

was $2,086.60 and without FERS was $1,577.90. Beginning December 2020, the SSA rate with 

FERS was $2,113.60 and without FERS was $1,598.40. 

On April 21, 2021 OWCP prepared a FERS fiscal payrate memorandum wherein it noted 

the calculation of appellant’s SSA offset overpayment from January 1, 2015 through April 24, 

2021 and computed a total overpayment amount of $37,213.62. It determined that during the 

period January 1, 2015 through November 30, 2016 appellant received an overpayment in the 

amount of $10,984.62. Beginning December 1, 2016 through November 30, 2017 he received an 

overpayment in the amount of $5,744.54. Beginning December 1, 2017 through November 30, 

2018 appellant received an overpayment in the amount of $5,860.05. Beginning December 1, 

4

In a notification of personnel action (PS Form 50) dated September 24, 2015,the employing establishment advised 

that appellant voluntarily retired. The effective date of retirement was August31, 2015. Appellant’sretirement plan 

was listed as FERS. 
3

2018 through November 30, 2019, he received an overpayment in the amount of $6,023.70. 

Beginning December 1, 2019 through November 30, 2020, appellant received an overpayment in 

the amount of $6,137.94. Beginning December 1, 2020 through April 24, 2021, he received an 

overpayment in the amount of $2,462.77. 

In a preliminary overpayment determination dated April 21, 2021, OWCP notified 

appellant of its preliminary finding that he received an overpayment of compensation in the 

amount of $37,213.62 because the SSA/FERS offset was not applied to his age-related retirement 

benefits for the period January 1, 2015 through April 24, 2021. 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 payment method 

and advised him that he could request waiver of recovery of the overpayment. It further requested 

that he provide supporting financial documentation, including copies of income tax returns, bank 

account statements, bills, canceled checks, pay slips, and any other records that support income 

and expenses. Additionally, OWCP provided an overpayment action request form and further 

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. 

In overpayment action requests forms dated May 10 and 14, 2021, appellant requested a 

prerecoupment hearing. He disagreed with the overpayment and requested waiver of recovery of 

because he was found without fault in the creation of the overpayment. The prerecoupment hearing 

was held on August 10, 2021.

In a Form OWCP-20 completed on August 19, 2021, appellant reported that his total 

monthly income included $2,113.00 from SSA, his wife’s income of $1,200.00, Department of 

Veterans Affairs (VA) benefits of $144.14 monthly, “state” benefits of $956.28, resulting in total 

monthly income of $4,413.42. He reported expenses totaling $1,925.00. Appellant indicated 

monthly expenses of $50.00 for telephone, $300.00 for fuel, $1,100.00 for water, $125.00 for 

electricity, $100.00 for gas, $200.00 for food, and $50.00 for clothing. He further noted cash on 

hand of $1,141.75, a checking account balance of $1,073.75, and a savings account balance of 

$68.28. Appellant attached statement from his family physician noting that he received $144.14 

in disability benefits from the VA. He also submitted an insurance explanation of benefits form 

for medical service provided on January 18, 2021.

By decision dated October 27, 2021, OWCP finalized the preliminary overpayment 

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

of $37,213.62 for the period January 1, 2015 through April 24, 2021, 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 of the overpayment because the evidence of record failed to e stablish 

that recovery of an overpayment would defeat the purpose of FECA or be against equity and good 

conscience. OWCP required recovery of the overpayment by deducting $356.28 every 28 days 

from appellant’s continuing compensation payments. 

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 
4

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 

attributable to the employee’s federal service.7 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 

age-related retirement benefits 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 $37,213.62, for the period January 1, 2015 through April 24, 

2021 for which he was without fault, because he concurrently received FECA wage-loss 

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

The evidence of record indicates that, while appellant was receiving FECA wage-loss 

compensation, he was also receiving SSA age-related retirement benefits that were attributable to 

his federal service without appropriate offset. A claimant cannot concurrently receive FECA 

wage-loss compensation and SSA age-related retirement benefits attributable to federal service for 

the same period.9 The information provided by SSA established that appellant had received SSA 

age-related retirement benefits that were attributable to his federal service commencing 

January 1, 2015. Thus, the record establishes that appellant received an overpayment of FECA 

wage-loss compensation.10

To determine the amount of the overpayment, the portion of the SSA age-related retirement 

benefits attributable to federal service must be calculated. OWCP received documentation from 

SSA with respect to appellant’s specific SSA age-related retirement benefits that were attributable 

to federal service. SSA provided appellant’s SSA age-related retirement benefits rates with FERS 

and without FERS for the period January 1, 2015 through April 24, 2021. OWCP provided its 

calculations for each relevant period based on SSA’s worksheet and determined that appellant 

received an overpayment in the amount of $37,213.62. 

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

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

8 FECA Bulletin No. 97-09 (issued February3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

9

20 C.F.R. § 10.421(d); supra note 6; L.D., Docket No. 19-0606 (issued November 21, 2019); A.C., Docket No. 

18-1550 (issued February 21, 2019); S.M., supra note7.

10 Id.
5

The Board has reviewed OWCP’s calculations and finds that it properly determined that 

appellant received prohibited dual benefits totaling $37,213.62, thus, creating an overpayment of 

compensation in that amount for the period January 1, 2015 through April 24, 2021 

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.11

Recovery of an overpayment will defeat the purpose of FECA when 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.12 An individual is deemed to meet current 

ordinary and necessary living expenses if monthly income does not exceed monthly expenses by 

more than $50.00.13

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.14

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 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. 15

ANALYSIS -- ISSUE 2

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

11 5 U.S.C. § 8129.

12 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 2020).

13 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).

14 20 C.F.R. § 10.437(a) and (b). 

15 Id. at § 10.438(a); M.S.,Docket No. 18-0740 (issued February 4, 2019).
6

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. 16

Appellant advised on a Form OWCP-20 that he had income totaling $4,413.42. However, 

he omitted his monthly FECA benefits of $1,425.13, which brings his total income to $5,838.55. 

Form OWCP-20 listed expenses as of $50.00 for telephone, $300.00 for fuel, $1,100.00 for water, 

$125.00 for electricity, $100.00 for gas, $200.00 for food, and $50.00 for clothing. Appellant

further noted cash on hand of $1,141.75, a checking account balance of $1,073.75, and a savings 

account balance of $68.28. He did not provide any financial documentation to support his income 

and expenses listed on the form.

Based upon the information provided on the Form OWCP-20, appellant’s household 

income totaled $5,839.30 while his expenses totaled $1,925.00. As his monthly income exceeds 

his monthly expenses by $3,914.13, he does not need substantially all of his monthly income to 

meet current and ordinary living expenses.

The Board further finds that appellant has not established that recovery of the overpayment 

would be against equity and good conscience because it has not been shown, for the reasons noted 

above, that he would experience severe financial hardship in attempting to repay the debt, or that 

a valuable right had been relinquished, or that a position had been changed for the worse in reliance 

on the payment, which created the overpayment.17 Therefore, OWCP properly denied waiver of 

recovery of the overpayment.

Because it has not been established that, recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not 

abused its discretion by denying waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 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 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. 18

ANALYSIS -- ISSUE 3

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

$356.28 from appellant’s continuing compensation payments every 28 days.

16 5 U.S.C. § 8129.

17 L.D., Docket No. 18-1317 (issued April17, 2019); WilliamJ. Murphy, 41 ECAB 569, 571-72 (1989).

18 20 C.F.R. § 10.441(a); A.S., Docket No. 19-0171 (issued June 12, 2019); DonaldR. Schueler, 39 ECAB 1056, 

1062 (1988).
7

The Board initially notes that appellant did not provide financial documentation to support 

his income and expenses prior to the final October 27, 2021 overpayment decision. The overpaid 

individual is responsible for providing information about income, expenses, and assets as specified 

by OWCP.19 When an individual fails to provide requested financial information, OWCP should 

follow minimum collection guidelines designed to collect the debt promptly and in full. 20 

In determining whether appellant could repay the overpayment through $356.28 

deductions from continuing compensation payments, OWCP took into account his financial 

information as well as factors set forth in 20 C.F.R. § 10.441 and found that this method of 

recovery would minimize any resulting hardship, not necessarily eliminate it, while at the same 

time liquidating the debt in a reasonably prompt fashion.21 The Board finds that OWCP gave due 

regard to the financial information provided on the overpayment recovery questionnaire and found 

that his monthly income exceeded monthly expenses by $3,913.55. There is no evidence of record 

to establish that OWCP erred in directing recovery of the $37,213.62 overpayment at the rate of 

$356.28 from appellant’s continuing compensation payments every 28 days.

22

CONCLUSION

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

of compensation in the amount of $37,213.62 for the period January 1, 2015 through April 24, 

2021, for which he was without fault, because he concurrently received FECA wage -loss 

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

Board further finds that OWCP properly denied waiver of recovery of the overpayment and 

19 Id. at § 10.438(a).

20 See J.A., Docket No. 19-1946 (issued July 13, 2020); Frederick Arters, 53 ECAB 397 (2002); supranote 12 at

Chapter 6.300.2 (September 2020). Id. at § 10.436; id. at Chapter 6.400.4.a(2).

21 See L.F., Docket No. 15-0489 (issued May 11, 2015) (the Board affirmed an OWCP hearing representative’s 

denial of waiver of recovery of an overpayment because appellant and his spouse had over $17,000.00 in their savings 

account, and as such his assets exceeded the specified resource base).

22 See J.A., supra note 20; E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued 

March 2, 2017).
8

properly required recovery of the overpayment by deducting $356.28 every 28 days from his 

continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the October 27, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 15, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board