United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.C., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Oakdale, LA, Employer

__________________________________________

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Docket No. 19-1976

Issued: January 25, 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

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On September 27, 2019 appellantfiled a timely appeal from a June 25, 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 appellant received an overpayment of compensation in the 

amount of $11,199.31 for the period November 1, 2017 through March 30, 2019, for which he was 

without fault because he concurrently received FECA wage-loss compensation and Social Security 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the June 25, 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 evidence for 

the first time on appeal. Id. 
2

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 $200.00 from appellant’s continuing 

compensation payments, every 28 days.

FACTUAL HISTORY

On July 15, 1998 appellant, then a 46-year-old federal employee, filed a traumatic injury 

claim (Form CA-1) alleging that he was injured while in the performance of duty. On July 29, 

1998 OWCP accepted the claim for lumbar sprain and displacement of the lumbar intervertebral 

disc without myelopathy. It paid appellant wage-loss compensation on the periodic rolls

commencing June 16, 2002. 

On December 10, 2018 OWCP provided SSA with a Federal Employees’ Retirement 

System (FERS)/SSA dual benefits form. It listed the computation period as November 26, 2013 

and continuing.

On January 11, 2019 SSA completed the dual benefits form, which reported appellant’s 

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

November 2017 through December 2018. Beginning November 2017, the SSA rate with FERS 

was $1,573.00 and without FERS was $929.80. Beginning December 2017, the SSA rate with 

FERS was $1,604.40 and without FERS was $948.30. Beginning December 2018, the SSA rate 

with FERS was $1,649.30 and without FERS was $974.80. SSA indicated that prior to 

November 2017 appellant received disability benefits.

In a letter dated April 12, 2019, OWCP informed appellant that it determined that he had 

been receiving SSA age-related retirement benefits and FECA wage-loss compensation at the same 

time, without an appropriate offset, resulting in a dual prohibited benefit. It explained that his 

FECA benefits would be adjusted based on the FERS portion of his SSA benefits attributable to 

his federal service.

An April 16, 2019 manual adjustment form and FERS offset overpayment calculation 

worksheet noted each alleged period of overpayment and provided calculations which resulted in 

a total overpayment to appellant of $11,199.31 during the period November 1, 2017 through 

March 30, 2019.

An April 16, 2019 periodic disability rolls payment plate for appellant’s compensation 

from March 31 to April 17, 2019 indicated that appellant’s FERS/SSA offset was deducted from 

his compensation. In a letter dated April 16, 2019, OWCP informed appellant that his FECA 

compensation would be offset by $662.62 due to his receipt of FERS/SSA dual benefits.

In a preliminary overpayment determination dated May 21, 2019, OWCP informed 

appellant that he had received an overpayment of compensation in the amount of $11,199.31 for 

the period November 1, 2017 through March 30, 2019 because it failed to offset his compensation 

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

service. 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-
3

20) to determine a fair repayment method and advised him that he could request waiver of recovery 

of the overpayment. It also 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 his reported income and expenses. OWCP advised appellant that it would deny 

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

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. No 

response was received from appellant.

By decision dated June 25, 2019, OWCP finalized the May 21, 2019 preliminary 

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

$11,199.31 for the period November 1, 2017 through March 30, 2019 because it had failed to 

offset his compensation payments by the portion of his SSA age-related retirement benefits that 

were attributable to his federal service. It further found that he was without fault in the creation 

of the overpayment because he could not have reasonably known that an improper payment 

occurred. However, OWCP denied waiver of recovery of the overpayment because the evidence 

of record was insufficient to establish that recovery would defeat the purpose of FECA or would 

be against equity and good conscience. It required recovery of the overpayment by deducting 

$200.00 from appellant’s continuing wage-loss compensation payments every 28 days.

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.3 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.4

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.5 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. 6

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March19, 2019); S.M., Docket No. 17-1802 (issued 

August 20, 2018).

6 FECA Bulletin No. 97-09 (February3, 1997); see also E.M., Docket No. 19-0857 (issued December 31, 2019); 

N.B., Docket No. 18-0795 (issued January 4, 2019).
4

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $11,199.31 for the period November 1, 2017 through March 30, 

2019 because he concurrently received FECA wage-loss compensation and SSA age-related 

retirement benefits without an appropriate offset.

In its June 25, 2019 decision, OWCP found that an overpayment of compensation was 

created for the period November 1, 2017 through March 30, 2019. The overpayment was based 

on the evidence received from SSA with respect to age-related retirement benefits paid to 

appellant. A claimant cannot receive both FECA wage-loss compensation and SSA age-related 

retirement benefits attributable to federal service for the same period.7 The information provided 

by SSA indicated that appellant received SSA age-related retirement benefits that were attributable 

to federal service during the period November 1, 2017 through March 30, 2019. Therefore OWCP 

properly established fact of overpayment. 

To determine the amount of the overpayment, the portion of the 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. SSA provided their benefitrates with FERS and without FERS for specific periods 

commencing November 1, 2017 through March 30, 2019. OWCP provided its calculations for 

each relevant period based on a FERS offset overpayment calculation worksheet and in its May 21, 

2019 preliminary overpayment determination. No contrary evidence was provided.

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

period November 1, 2017 through March 30, 2019 and finds that an overpayment of compensation 

in the amount of $11,199.31 was created.8

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.”

9

 Section 10.438 of OWCP 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. 

7

5 U.S.C. § 8116(d)(2); see L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued 

May 17, 2019).

8 C.M., Docket No. 19-1451 (issued March 4, 2020). 

9

5 U.S.C. § 8129.
5

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

waiver.10

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.11

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 current 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. 12 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 $50.00.13

OWCP’s procedures provide that the 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.14 An individual’s liquid assets include, but are not limited to, cash and 

the value of stocks, bonds, saving accounts, mutual funds, and certificates of deposit. Nonliquid 

assets include, but are not limited to, the fair market value of an owner’s equity in property such 

as a camper, boat, second home, furnishings/supplies, vehicle(s) above the two allowed per 

immediate family, retirement account balances (such as Thrift Savings Plan or 401(k)), jewelry, 

and artwork.15

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.

16

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the $11,199.31 

overpayment of compensation.

10 20 C.F.R. § 10.438.

11 Id. at §§ 10.434-10.437.

12 Id. at § 10.436.

13 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 

6.400.4a(3) (September 2018). 

14 Id. at Chapter 6.400.4a(2).

15 Id. at Chapter 6.400.4b(3)(a)(b).

16 20 C.F.R. § 10.438.
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.17 Appellant did not 

provide the financial information to OWCP which it had requested.18

In its preliminary determination dated May 21, 2019, OWCP explained the importance of 

providing the completed overpayment recovery questionnaire (Form OWCP-20) and financial 

information. It advised appellant that it would deny waiver of recovery if he failed to furnish the 

requested financial information within 30 days. Appellant has not submitted a completed 

overpayment recovery questionnaire or otherwise submitted financial information regarding 

monthly income and expenses. As a result, OWCP did not have the necessary financial 

information to determine if recovery of the overpayment would defeat the purpose of FECA or if 

recovery would be against equity and good conscience.19

Consequently, as appellant did not submit the financial information required under section 

10.438 of OWCP’s regulations, the Board finds that OWCP properly denied waiver of recovery 

of the overpayment.20

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. 21 Section 

10.441(a) of the regulations provides:

“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.”

22

17 See N.C., Docket No. 18-1070 (issued January 9, 2019); C.Y.,Docket No. 18-0263 (issued September 14, 2018).

18 Under 20 C.F.R. § 10.438(b), failure to submit the requested information within 30 days of the request for 

information about income, expenses, and assets shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished. See A.F., Docket No. 19-0054 (issued 

June 12, 2019).

19 See S.M., Docket No. 17-1802 (issued August 20, 2018).

20 Supra note 18.

21 20 C.F.R. § 10.441(a).

22 Id. 
7

ANALYSIS -- ISSUE 3

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

$200.00 from appellant’s continuing compensation payments every 28 days.

As noted, appellant did not complete the Form OWCP-20, nor did he submit financial 

information as requested. The overpaid individual is responsible for providing information about 

income, expenses, and assets as specified by OWCP. 23 When an individual fails to provide 

requested financial information, OWCP should follow minimum collection guidelines designed to 

collect the debt promptly and in full.24 As appellant failed to timely submit information to OWCP 

as requested, the Board finds that there is no evidence of record to demonstrate that it erred in 

directing recovery of the $11,199.31 overpayment of compensation at the rate of $200.00 from his 

continuing compensation payments.25

CONCLUSION

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

$11,199.31 for the periods November 1, 2017 through March 30, 2019 for which he was without 

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

compensation without an 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 $200.00 days from appellant’s continuing compensation payments every 28 days.

23 20 C.F.R. § 10.437(a)(b).

24 T.J., Docket No. 19-1242 (issued January13, 2020). 

25 Id.
8

ORDER

IT IS HEREBY ORDERED THAT the June 25, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 25, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board