United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BOB STUMP DEPARTMENT OF VETERANS 

AFFAIRS MEDICAL CENTER, Prescott, AZ, 

Employer

__________________________________________

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Docket No. 22-0846

Issued: September 9, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 10, 2022 appellant, through counsel, filed a timely appeal from a May 6, 2022 

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 over 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 May 6, 2022 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 $7,954.01 for the period March 1, 2018 through 

August 17, 2019, for which she was without fault, because she concurrently received FECA wageloss 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 

$203.95 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On October 2, 1997 appellant, then a 45-year-old registered nurse, filed a traumatic injury 

claim (Form CA-1) alleging that on October 1, 1997 she injured her back when lifting and 

transferring a patient while in the performance of duty. OWCP accepted the claim for lumbar 

sprain and displacement of a lumbar intervertebral disc without myelopathy. On October 29, 2001 

appellant underwent a discectomy and fusion at L4-5 and L5-S1. On November 5, 2001 she 

underwent a lumbar discectomy. 

Appellant sustained intermittent periods of total and partial disability from employment. 

OWCP paid her wage-loss compensation based on her wage-earning capacity beginning 

June 4, 2007. Appellant subsequently stopped work on March 27, 2018 and did not return. 

On June 24, 2019 OWCP sent a Federal Employees Retirement System (FERS)/SSA dual 

benefits form to SSA for completion.4

On July 6, 2019 SSA completed the FERS/SSA dual benefits form and provided 

appellant’s monthly benefits with and without FERS for the period March through

December 2018. SSA indicated that effective March 2018, appellant’s SSA rate with FERS was 

$1,136.60 and without FERS was $691.70, and effective December 2018, her SSA rate with FERS 

was $1,168.40 and without FERS was $711.00.

In a FERS offset overpayment calculation form completed September 5, 2019, OWCP 

calculated the amount that it should have offset from appellant’s compensation for each period 

from March 1, 2018 through August 17, 2019. It found that, from March 1 through November 30, 

2018, appellant received an overpayment of $4,033.43 and from December 1, 2018 through 

August 17, 2019, she received an overpayment of $3,920.57. Based on these figures, OWCP 

calculated the total overpayment amount of $7,954.01.

In correspondence dated September 5, 2019, OWCP advised appellant that it was reducing 

her wage-loss compensation by the portion of her SSA benefits attributable to her federal service. 

On September 12, 2019 OWCP notified appellant of its preliminary overpayment 

determination that she had received a $7,954.10 overpayment of compensation for the period 

March 1, 2018 through August 17, 2019 because she concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation without an appropriate offset. It further 

advised her of its preliminary determination that she was without fault in the creation of the 

4 On a June 11, 2007claim for compensation (Form CA-7), the employing establishment indicated that appellant 

had FERS as herretirement system. 
3

overpayment. OWCP requested that appellant submit a completed overpayment recovery 

questionnaire (Form OWCP-20) to determine a reasonable payment method and advised her that 

she could request waiver of recovery of the overpayment. Additionally, it provided an 

overpayment action request form and notified appellant 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.

On September 20, 2019 appellant requested a telephonic prerecoupment hearing before a 

representative of OWCP’s Branch of Hearings and Review. In an overpayment recovery 

questionnaire dated October 8, 2019, she provided her monthly income and expenses. Appellant 

noted that she only received wage-loss compensation for partial disability. She provided 

supporting financial information. 

Following a preliminary review, by decision dated January 3, 2020, OWCP’s hearing 

representative vacated the September 1, 2019 preliminary overpayment determination. The 

hearing representative found that OWCP had not sufficiently explained how it calculated the 

amount of the overpayment.

On March 24, 2020 OWCP notified appellant of its preliminary overpayment 

determination that she had received a $7,954.10 overpayment of compensation from March 1, 

2018 through August 17, 2019 because she concurrently received SSA age-related retirement 

benefits and FECA wage-loss compensation without an appropriate offset. It further advised her 

of its preliminary determination that she was without fault in the creation of the overpayment. 

OWCP noted that it had previously received appellant’s completed October 2019 OWCP-20 form 

and her attached 90-pages of supporting documentation and that it would use that information to 

evaluate waiver and determine a reasonable rate of recovery of the overpayment. It indicated that 

she could submit a new OWCP-20 form. OWCP again informed appellant that she could request 

a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing

within 30 days.

In an OWCP-20 form dated April 13, 2020, appellant requested waiver of recovery of the 

overpayment. She asserted that she had informed OWCP of her SSA benefits and was not aware 

that she was being overpaid. 

By decision dated May 6, 2022, OWCP finalized its preliminary overpayment 

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

$7,954.02 for the period March 1, 2018 through August 17, 2019 because she concurrently 

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

appropriate offset. It explained how it had calculated the amount of the overpayment. OWCP 

further found that appellant was without fault in the creation over the overpayment but denied 

waiver of recovery of the overpayment. It determined that she had not responded to its March 24, 

2020 preliminary overpayment determination with a completed OWCP-20 form or provided any 

financial documentation supporting her waiver request. OWCP required repayment of the 

overpayment by deducting $203.95 from appellant’s continuing 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 
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 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 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 $7,954.01 for the period March 1, 2018 through August 17, 

2019, for which she was without fault, because she concurrently received FECA wage -loss 

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

OWCP paid appellant wage-loss compensation for partial disability on the periodic rolls 

beginning June 4, 2007. Appellant received SSA age-related retirement benefits beginning 

March 1, 2018. As noted, a claimant cannot receive concurrent FECA compensation for wageloss and SSA age-related retirement benefits attributable to federal service.9

 The information 

provided by SSA indicated that a portion of appellant’s SSA age-related retirement benefits were 

attributable to her federal service. Accordingly, the Board finds that fact of overpayment has been 

established.10 

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 appellant’s SSA age-related retirement benefit rates 

with FERS and without FERS from March through December 2018. OWCP provided its 

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

received an overpayment in the amount of $7,954.01. The Board has reviewed OWCP’s 

calculation of dual benefits received by appellant for the period March 1, 2018 through August 17, 

2019 and finds that an overpayment of compensation in the amount of $7,954.01 was created.11

5

5 U.S.C. § 8102.

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 February 3, 1997);see also N.B., Docket No. 18-0795 (issued January 4, 2019).

9

Supra note 7. See F.K., Docket No. 20-1609 (issued June 24, 2021); A.C., Docket No. 18-1550 (issued 

February21, 2019).

10 See L.K., Docket No. 20-1574 (issued June23, 2021); S.H., Docket No. 20-1157 (issued December 23, 2020).

11 See J.S., Docket No. 22-0369 (issued June 7, 2022); N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., 

Docket No. 18-1103 (issued March 5, 2019).
5

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA12 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.13

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. 14 An individual’s liquid assets 

include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual 

funds, and certificates of deposits. 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 10.437 provides that recovery of an overpayment is against equity and good 

conscience when an individual who received an overpayment would experience severe financial 

hardship attempting to repay the debt and when an individual, in reliance on such payments or on 

notice that such payments would be made, gives up a valuable right or changes her position for the 

worse.16

ANALYSIS -- ISSUE 2

The Board finds that the case is not in posture for decision on the issue of whether OWCP 

properly denied waiver of recovery of the overpayment.

In its March 24, 2020 preliminary overpayment determination, OWCP advised appellant 

that it would use her October 2019 OWCP-20 form and the attached 90 pages of financial 

documentation to evaluate the issues of waiver and reasonable rate of recovery of the overpayment. 

However, in its May 6, 2022 decision, it denied waiver of recovery after finding that she had not 

responded to its March 24, 2020 preliminary overpayment determination with a completed 

OWCP-20 form or any supporting evidence. OWCP failed to consider appellant’s previously 

12 Supra note 2.

13 I.R., Docket No. 22-0088 (issued May 5, 2022); G.L., Docket No. 19-0297 (issued October 23, 2019).

14 20 C.F.R. § 10.436. OWCP procedures provide that a claimant is deemed to need substantially all 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 6.400.4)(2) and (3) (September 2020).

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

16 20 C.F.R. § 10.437(b)(1).
6

submitted October 2019 completed OWCP-20 form and supporting documentation as indicated. 

Additionally, the Board has held that OWCP must rely on current financial information when 

determining eligibility for waiver and recovery of an overpayment.17 OWCP’s regulations provide 

that waiver is possible when the individual from whom recovery is sought needs substantially all 

of his or her “current income” to meet “current ordinary and necessary living expenses.”18 OWCP 

should have requested that appellant submit updated financial information and financial 

documentation prior to its decision denying waiver of recovery.19 Consequently, the case will be 

remanded for OWCP to obtain updated financial information from appellant. After this and other 

such development as deemed necessary, OWCP shall issue a de novo decision.20

CONCLUSION

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

of compensation in the amount of $7,954.01 for the period March 1, 2018 through August 17, 

2019, for which she was without fault, because she concurrently received FECA wage -loss 

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

Board further finds that the case is not in posture for decision on the issue of whether OWCP 

properly denied waiver of recovery of the overpayment.

17 See M.B., Docket No. 20-0573 (issued August23, 2021); C.S., Docket No. 17-2013 (issued April11, 2018); I.P., 

Docket No. 12-1683 (issued January 25, 2013); Ronald E. Smith, 36 ECAB 652 (1985).

18 20 C.F.R. § 10.436(a).

19 M.B., supra note 17; see also Frank C. Leone, Docket No. 02-1146 (issued September 2, 2003).

20 In view of the Board’s disposition of Issue 2, Issue 3 is rendered moot.
7

ORDER

IT IS HEREBY ORDERED THAT the May 6, 2022 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part and the case is remanded for 

further proceedings consistent with this decision of the Board.

Issued: September 9, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board