United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.G., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION 

MEDICAL CENTER, Pittsburgh, PA, Employer

__________________________________________

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Docket No. 21-0818

Issued: February 7, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 4, 2021 appellant filed a timely appeal from a March 18, 2021 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 $75,644.11 during the period June 1, 2012 through 

December 5, 2020 for which she was without fault, as she concurrently received Social Security 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 18, 2021decision, OWCP received additional evidence, and appellant 

submitted additional evidence upon appeal. 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

Administration (SSA) age-related retirement benefits and FECA wage-loss compensation without 

an appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment; and 

(3) whether OWCP properly required recovery of the overpayment by deducting $363.50 every 28 

days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On June 1, 2001 appellant, then a 51-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1) alleging that on May 18, 2001 she sustained a massive herniated disc 

and possible rotator cuff tear when repetitively-lifting heavy magnetic resonance imaging (MRI) 

films while in the performance of duty. She stopped work on May 21, 2001. OWCP initially 

accepted the claim for cervical sprain, and later expanded the acceptance of the claim to include 

displacement of the cervical intervertebral disc without myelopathy. In a CA-7 form dated 

August 29, 2001, appellant’s supervisor noted that appellant’s retirement system coverage was 

under the Federal Employees Retirement System (FERS). Appellant was in receipt of 

compensation for temporary total disability since August 20, 2001 and OWCP paid appellant 

wage-loss compensation on the periodic rolls beginning June 16, 2002.

On November 18, 2020 OWCP provided SSA with a FERS/SSA dual benefits form to 

obtain information regarding appellant’s receipt of SSA age-related retirement benefits. 

On December 1, 2020 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

June 2012 through December 2020. SSA noted that appellant received SSA disability benefits 

from October 2005 through May 2012 and from May 2015 through April 2016. Beginning 

June 2012, the SSA rate with FERS was $827.30 and without FERS was $198.80. Beginning 

December 2012, the SSA rate with FERS was $841.30 and without FERS was $202.10. Beginning 

May 2016, the SSA rate with FERS was $1,151.50 and without FERS was $219.20. Beginning 

December 2016, the SSA rate with FERS was $1,154.90 and without FERS was $219.80. 

Beginning December 2017, the SSA rate with FERS was $1,177.90 and without FERS was 

$224.20. Beginning December 2018, the SSA rate with FERS was $1,210.80 and without FERS 

was $230.40. Beginning December 2019, the SSA rate with FERS was $1,230.10 and without 

FERS was $234.00. Beginning December 2020, the SSA rate with FERS was $1,246.00 and 

without FERS was $237.10. 

On December 9, 2020 OWCP prepared a FERS offset overpayment calculation worksheet 

wherein it noted the calculation of appellant’s SSA offset overpayment from June 1, 2012 through 

April 30, 2015 and May 1, 2016 through December 5, 2020. It found that she received an 

overpayment of compensation in the amount of $3,791.72 for the period June 1 through 

November 30, 2012, $18,564.90 for the period December 1, 2012 through April 30, 2015,

$6,577.33 for the period May 1 through November 30, 2016, $11,252.03 for the period 

December 1, 2016 through November 30, 2017, $11,475.84 for the period December 1, 2017 

through November 30, 2018, $11,797.12 for the period December 1, 2018 through November 30, 

2019, $12,018.88 for the period December 1, 2019 through November 30, 2020, and $166.30 for 

the period December 1 through 5, 2020. The total overpayment was determined to be $75,644.11. 

In a letter dated December 9, 2020, OWCP notified appellant that, based on information 

provided by SSA regarding the amount of her age-related retirement benefits, which were 
3

attributable to federal service, her FECA wage-loss compensation had been adjusted. It explained 

that she was in receipt of SSA age-related retirement benefits every four weeks amounting to 

$1,246.00. However, appellant’s federal service increased her monthly Social Security payment 

by $1,008.90, which must be offset by the portion of her SSA retirement benefits attributable to 

her federal service on account of age, resulting in a new net FECA compensation payment of 

$1,073.89, every 28 days. Appellant’s wage-loss compensation benefits were adjusted, effective 

December 6, 2020. 

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

appellant that she had received an overpayment of compensation in the amount of $75,644.11 

because she had received SSA age-related retirement benefits based upon her federal service, 

without appropriate offset, at the same time she received FECA wage-loss compensation for the 

period June 1, 2012 through December 5, 2020. It explained that the overpayment occurred 

because appellant’s compensation was not reduced by the FERS/SSA amount. OWCP found 

appellant without fault in the creation of the overpayment and forwarded an overpayment action 

request form and an overpayment recovery questionnaire (Form OWCP-20). It requested that she 

provide supporting financial documentation including income tax returns, bank account 

statements, bills and cancelled checks, pay slips, and any other records to support her reported 

income and expenses. 

In a Form OWCP-20 dated February 4, 2021, appellant requested waiver of recovery of

the overpayment. She listed her monthly income as consisting of $746.00 in SSA benefits. 

Appellant’s monthly expenses were listed as: $900.00 for rent; $300.00 for food; $200.00 for 

clothing; $150.00 for gas; $95.00 for electricity; and $100.00 for water and other expenses of 

$892.00. Her assets included $4.00 in cash and $48.00 in a savings account. OWCP did not 

receive supporting financial information along with her Form OWCP-20. 

By decision dated March 18, 2021, OWCP finalized the preliminary overpayment 

determination of January 21, 2021, finding that appellant received an overpayment of 

compensation in the amount of $75,644.11 for the period June 1, 2012 through December 5, 2020 

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

compensation for that period without appropriate offset. It found that the FERS offset form that 

OWCP received on December 1, 2020 indicated that, contrary to appellant’s figure on the Form 

OWCP-20, her monthly SSA payment as of that date was $1,246.00. OWCP noted that she also 

received a compensation payment from OWCP in the amount of $1,454.60 as of 

February 28, 2021. Therefore, itfound that appellant’s total monthly income was $2,700.60. With 

regard to the figures for her monthly expenses, OWCP noted that she did not detail what her 

$892.00 in “miscellaneous” expenses covered, and as such OWCP could not determine whether 

they were for necessities or not, and that the figure of $200.00 per month for clothing appeared to 

be excessive. It denied waiver of recovery of the overpayment because there was no evidence of 

record that recovery of the overpayment would defeat the purpose of FECA or be against equity 

and good conscience. OWCP required recovery by deducting $363.50 every 28 days from 

appellant’s continuing compensation payments.

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 
4

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 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.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

ANALYSIS -- ISSUE 1

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

$75,644.11 for the period June 1, 2012 through December 5, 2020 because she concurrently 

received SSA age-related retirement benefits and FECA wage-loss compensation for that period 

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.7 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 on

December 1, 2020 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 June 2012 through December 2020. The SSA also noted that appellant 

received SSA disability benefits, as opposed to age-related retirement benefits, for the periods 

October 2005 through May 2012 and May 2015 through April 2016.8

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

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).

6 FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

7

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

8 The Board notes that OWCP properly omitted the period May1, 2015 through April30, 2016 from its calculation 

of the amount and period of appellant’s overpayment, as SSA indicated that appellant was not in receipt of age-related 

retirement benefits for this period.
5

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

period June 1, 2012 through December 5, 2020 and finds that an overpayment of compensation in 

the amount of $75,644.11 was created.9

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 The waiver or refusal to waive an overpayment of compensation by OWCP is a 

matter that rests within OWCP’s discretion pursuant to statutory guidelines.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 10.436

to 10.438 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 

Section 10.437 of OWCP’s implementing regulations provides that 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 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 his or her position for the worse. 14 OWCP’s procedures 

provide thatto establish that a valuable right has been relinquished, an individual must demonstrate 

that the right was in fact valuable, that he or she was unable to get the right back, and that his or 

her action was based primarily or solely on reliance on the payment(s) or on the notice of 

payment.15

9

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

June 21, 2018).

10 5 U.S.C. § 8129.

11 A.C., Docket No. 18-1550 (issued February 21, 2019);see Robert Atchison, 41 ECAB 83, 87 (1989).

12 20 C.F.R. at §§ 10.436-10.438.

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 2020). 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 20 C.F.R. § 10.437;see E.H., Docket No. 18-1009 (issued January 29, 2019).

15 Federal (FECA) Procedure Manual, supranote 13at Chapter 6.400.4(c)(3) (September 2020).
6

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 

and no further request for waiver shall be considered until the requested information is furnished.16

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. 17 It considered her 

financial information, as presented in her completed Form OWCP-20 to determine if recovery of 

the overpayment would defeat the purpose of FECA.

OWCP determined that appellant did not require substantially all of her income to meet 

ordinary living expenses. It found that, after its review of the documents of record, she had total 

current monthly income of $2,700.60, including $1,246.00 in SSA age-related retirement benefits 

and wage-loss compensation from OWCP in the net amount of $1,454.60. OWCP found that 

appellant’s total monthly expenses were, at maximum, $2,637.00 based on appellant’s Form 

OWCP-20, but that the amount of $200.00 per month for clothing appeared to be excessive, and 

$892.00 in miscellaneous expenses were not explained with regard to whether they were for 

necessities. Deducting these latter expenses resulted in total monthly expenses of $1,545.00, 

which left $1,155.60 of disposable income with which to repay the debt. As appellant’s monthly 

income exceeded her ordinary and necessary living expenses by more than $50.00, OWCP found 

that she did not need substantially all of her income for ordinary and necessary living expenses. 18 

The Board also notes that, although appellant was advised by OWCP to submit documentation to 

establish her purported income and expenses, she did not submit supporting financial 

documentation as required by section 10.438 of its regulations. OWCP was, therefore,required 

by regulation to deny appellant’s request for waiver as it did not have the financial information 

necessary to determine if appellant needed substantially all of her current income to meet current 

ordinary and necessary living expenses and, also, if her assets exceeded a specified amount as 

determined by OWCP.

19

 

Appellant also did not establish that she was entitled to waiver on the basis that recovery 

of the overpayment would be against equity and good conscience. She did not provide any 

financial information to show that she would experience severe financial hardship in attempting to 

repay the debt or that she gave up a valuable right in reliance on her wage -loss compensation 

16 20 C.F.R. § 10.438.

17 Id. at § 10.436.

18 See M.C., Docket No. 19-0699 (issued February12, 2020).

19 Supra note 15. 
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benefits. Appellant, therefore, did not establish that recovery of the overpayment was against 

equity and good conscience.20

As appellant failed to establish that recovery of the overpayment of compensation would 

either defeat the purpose of FECA or be against equity and good conscience, the Board finds that 

OWCP did not abuse its discretion in denying waiver of recovery of the overpayment. 21

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. 22

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.23

ANALYSIS -- ISSUE 3

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

$363.50 every 28 days from appellant’s continuing compensation.

The overpaid individual is responsible for providing information about income, expenses, 

and assets as specified by OWCP.24 When an individual fails to provide requested financial 

information, OWCP should follow minimum collection guidelines designed to collect the debt 

promptly and in full.25 OWCP took into consideration the financial information she submitted as 

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

minimize resulting hardship. Therefore, it properly required recovery of the overpayment by 

deducting $363.50 from appellant’s continuing compensation every 28 days.26

20 M.A., Docket No. 18-1666 (issued April26, 2019).

21 See supra note 11.

22 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

23 Id.

24 Id. at § 10.438;see also A.F., Docket No. 19-0054 (issued June12, 2019).

25 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.2 

(September 2018).

26 See J.R., Docket No. 17-0181 (issued August 12, 2020); L.G., Docket No. 19-1274 (issued July 10, 2020).
8

CONCLUSION

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

$75,644.11 during the period June 1, 2012 through December 5, 2020, for which she was without 

fault, as she concurrently received SSA age-related retirement benefits while receiving 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 $363.50 from her continuing compensation every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the March 18, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 7, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board