United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

U.S. POSTAL SERVICE, MILWAUKEE 

PROCESSING & DISTRIBUTION CENTER, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 20-0716

Issued: June 1, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 February 13, 2020 appellant filed a timely appeal from a September 13, 2019 merit 

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

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

ISSUES

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

overpayment of compensation in the amount of $42,638.67 during the period March 1, 2015 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the September 13, 2019 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

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

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

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 

$399.31 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On March 13, 1998 appellant, then a 50-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that on that date she sustained lower back, neck, and left jaw pain when she stepped 

with her right foot onto plastic tie straps and fell to the floor, landing on her left hip and shoulder, 

while in the performance of duty. OWCP initially accepted the claim for right rotator cuff tear, 

and later expanded the acceptance of the claim to include mild cervical and lumbar strains, 

herniated discs at the L3-4, L5-S1, and C5-6 levels, displacement of cervical and lumbar 

intervertebral discs without myelopathy, aftercare for healing traumatic fracture of vertebra, joint 

stiffness, urinary incontinence, anterior cervical discectomy and fusion at C5-6, left L3-4 lumbar 

hemilaminectomy and discectomy, and L5-S1 decompression. It assigned the claim OWCP File 

No. xxxxxx551.3 OWCP paid appellant compensation on the periodic rolls effective 

June 16, 2002.

A June 26, 2002 Notification of Personnel Action (PS Form 50) listed appellant’s 

retirement coverage as the Federal Employees Retirement System (FERS). On EN1032 forms 

dated April 27, 2015, April 6, 2016, and March 27, 2017, appellant replied “No” as to whether she 

was in receipt of SSA benefits as a part of an annuity for federal service. On EN1032 forms dated 

March 21, 2018 and March 16, 2019 she indicated that she was in receipt of SSA benefits.

On April 3, 2019 OWCP requested information from SSA regarding appellant’s potential 

receipt of FERS/SSA dual benefits.

On April 29, 2019 OWCP received a completed FERS/SSA dual benefits form from SSA 

dated April 24, 2019, wherein SSA calculated appellant’s SSA age-related retirement benefit rates 

with and without a FERS offset. The form indicated that the SSA rate with FERS was $1,568.10 

effective March 2015 and December 2015, $1,572.80 effective December 2016, $1,604.20 

effective December 2017, and $1,649.10 effective December 2018. The form further indicated 

that the SSA rate without FERS was $757.30 effective March 2015 and December 2015, $759.50 

effective December 2016, $774.60 effective December 2017, and $796.20 effective 

December 2018.

OWCP completed a FERS offset overpayment calculation worksheet on July 15, 2019. It 

determined the 28-day FERS offset amount for the days in each period and computed a total 

3 Under OWCP File No. xxxxxx143, appellant’s claim was accepted for a rotator cuff sprain of shoulder and upper 

arm that occurred on January 28, 1999. She returned to full-time restricted-duty work on January 3, 2000. Following 

an absence for military leave from June 3, 2000 through June 11, 2000, appellant began working six hours per shift. 

She was again released to full-time restricted-duty work effective January 12, 2001. Appellantwas absent from work 

to attend military training to become a warrant officer from January 21 through March 1, 2001. She returned to fulltime restricted-duty work in March 2001 and again began performing six hours of restricted-duty work on or around 

May 5, 2001. Appellantstopped work effective June 9, 2001 as she was totally disabled.
3

overpayment of $42,638.67. This form indicated: from March 1 through November 30, 2015, 

appellant received an overpayment of compensation in the amount of $7,350.66; from 

December 1, 2015 through November 30, 2016, she received an overpayment of compensation in 

the amount of $9,783.06; from December 1, 2016 through November 30, 2017, she received an 

overpayment of compensation in the amount of $9,786.41; from December 1, 2017 through 

November 30, 2018, she received an overpayment of compensation in the amount of $9,982.55; 

and from December 1, 2018 through June 22, 2019, she received an overpayment of compensation 

in the amount of $5,735.99. 

In a letter dated July 16, 2019, OWCP notified appellant that, based on information 

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

federal service, her FECA wage-loss compensation had been adjusted. 

On August 14, 2019 OWCP notified appellant of its preliminary overpayment 

determination that she received an overpayment of compensation in the amount of $42,638.67 as 

she had received FECA wage-loss compensation benefits for the period March 1, 2015 through 

June 22, 2019 that had not been reduced by the portion of her SSA age-related retirement benefits 

attributable to her federal service, and that this portion of her SSA benefit was a prohibited dual 

benefit. It further advised her of its preliminary determination that she was withoutfault in creating 

the overpayment. OWCP requested that appellant complete the enclosed overpayment recovery 

questionnaire (Form OWCP-20) and submit supporting financial documentation, including copies 

of income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other 

records to support income and expenses. Additionally, it provided an overpayment action request 

form and notified her that, within 30 days of the date of the letter, she could request a telephone 

conference, a final decision based on the written evidence, or a prerecoupment hearing. No 

response was received.

By decision dated September 13, 2019, OWCP finalized its preliminary overpayment 

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

$42,638.67 because the SSA/FERS offset was not applied to FECA payments for the period 

March 1, 2015 through June 22, 2019. It further found that she was not at fault in the creation of 

the overpayment, but denied waiver of recovery of the overpayment, because she had not submitted 

any evidence in response to the preliminary overpayment determination. OWCP required 

repayment of the overpayment by deducting $399.31 from appellant’s continuing compensation 

benefits beginning September 15, 2019.

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.4 Section 8116 limits the right of an employee to receive compensation. While an employee 

4

5 U.S.C. § 8102(a).
4

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 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.6 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.7

ANALYSIS -- ISSUE 1

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

$42,638.67 during the period March 1, 2015 through June 22, 2019, for which she was without 

fault, because she concurrently received FECA wage-loss compensation benefits and SSA agerelated retirement benefits, without appropriate offset.

The record indicates that, while appellant was receiving wage-loss compensation under 

FECA, she also received SSA age-related retirement benefits attributable to her federal service 

during the relevant period. A claimant cannot receive both compensation for wage-loss and SSA 

age-related retirement benefits attributable to federal service for the same period. 8 Consequently, 

the fact of the overpayment has been established.

To determine the amount of the overpayment, the portion of SSA benefits that were 

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. The SSA provided the SSA rate with FERS and without FERS for specific periods 

from March 1, 2015 through June 22, 2019. OWCP provided its calculations of the amount that 

should have been offset during the relevant period based on information provided by SSA for the 

period March 1, 2015 through June 22, 2019 in its August 14, 2019 preliminary overpayment 

determination. 

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

period March 1, 2015 through June 22, 2019 and finds that an overpayment of compensation in 

the amount of $42,638.67 was created.9

5

Id. at § 8116.

6

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).

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

8

See D.M., Docket No. 19-1369 (issued June 30, 2020).

9

See L.W. supra note 6; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued 

June 21, 2018).
5

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 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

The guidelines for determining whether recovery of an overpayment would defeat the 

purpose of FECA or would be against equity and good conscience are set forth in sections 10.434 

to 10.437 of OWCP’s regulations.12 Section 10.436 provides that 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 expense, 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 For waiver of 

recovery of the overpayment under the defeat the purpose of FECA standard, appellant must show 

that he or she needs substantially all of his or her current income to meet current ordinary and 

necessary living expenses, and that assets do not exceed the resource base.14 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 $50.00.15

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 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 

10 5 U.S.C. § 8129.

11 20 C.F.R. § 10.438.

12 Id. at §§ 10.434-10.437.

13 Id. at § 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. Federal (FECA) Procedure Manual, Part 6 --Debt Management, Initial Overpayment 

Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s 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. Id. at Chapter 6.400.4a(2).

14 Id.

15 Id.
6

conscience. However, appellant had the responsibility to provide financial information to 

OWCP,16 but failed to do so.

In its preliminary overpayment determination, dated August 14, 2019, 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 cancelled checks, pay 

slips, and any other records to support income and expenses. It advised her that it would deny 

waiver of recovery if she failed to furnish the requested financial information within 30 days. 

Appellant did not provide the requested Form OWCP-20 or submit any 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.

Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438 

of OWCP’s regulations to determine her eligibility for waiver, OWCP properly denied 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. 17

Section 10.441 of OWCP’s regulations provides that, when an overpayment of 

compensation 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 hardship.18

ANALYSIS -- ISSUE 3

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

$399.31 from appellant’s continuing compensation every 28 days.

The record supports that, in requiring repayment of the overpayment by deducting $399.31 

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

appellant had not submitted the requested financial information as well as the other factors set 

forth in 20 C.F.R. § 10.441 and found that this method of recovery would minimize resulting 

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

17 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

18 Id.
7

hardship. Therefore, OWCP properly required recovery of the overpayment by deducting $399.31 

from appellant’s continuing compensation every 28 days.19

CONCLUSION

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

$42,638.67 for the period March 1, 2015 through June 22, 2019, for which she was without fault, 

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

compensation 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 $399.31 from her continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the September 13, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 1, 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

19 See J.R., Docket No. 17-0181 (issued August 12, 2020); L.G., Docket No. 19-1274 (issued July 10, 2020).