United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Burlingame, CA, Employer

__________________________________________

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Docket No. 21-0455

Issued: February 28, 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 February 2, 2021 appellant filed a timely appeal from a January 7, 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 $64,756.00 for the period April 1, 2016 through 

September 12, 2020, for which she was without fault, because she concurrently received FECA 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the January7, 2021 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

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 

$400.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On March 12, 2001 appellant, then a 47-year-old modified mail carrier, filed an 

occupational disease claim (Form CA-2) alleging that factors of her federal employment

aggravated her knee osteoarthritis on or about February 14, 2000. OWCP accepted the claim for 

permanent aggravation of bilateral osteoarthritis of the lower legs. It paid appellant wage-loss 

compensation on the supplemental rolls as of June 25, 2002 and on the periodic rolls as of 

September 8, 2002. A notification of personnel action PS Form 50 dated March 3, 2003 indicated 

that herretirement system coverage was under the Federal Employees Retirement System (FERS). 

On February 26 and April 29, 2020 OWCP forwarded a FERS/SSA dual benefits form to 

SSA to obtain information regarding appellant’s receipt of SSA benefits. 

On July 13, 2020 OWCP received a completed FERS/SSA dual benefits form from SSA,

which reported that appellant had been in receipt of SSA age-related retirement benefits since 

April 2016. SSA reported that: beginning April 2016, appellant’s monthly SSA benefit rate with 

FERS was $1,265.00 and without FERS was $148.90; beginning December 2016, appellant’s 

monthly SSA benefit rate with FERS was $1,269.00 and without FERS was $149.20; beginning 

December 2017, appellant’s monthly SSA benefit rate with FERS was $1,294.00 and without 

FERS was $152.20; beginning December 2018, appellant’s monthly SSA benefit rate with FERS 

was $1,331.00 and without FERS was $156.40; beginning December 2019, appellant’s monthly

SSA benefit rate with FERS was $1,352.00 and without FERS was $158.90; and beginning 

January 2020, appellant’s monthly SSA benefit rate with FERS was $1,773.50 and without FERS 

was $208.00. 

The record reflects that as of September 13, 2020 appellant received a net compensation 

payment of $1,363.96 every 28 days. 

OWCP completed a FERS offset overpayment calculation worksheet on 

September 17, 2020. It calculated the overpayment amount by determining the daily FERS offset 

amount and multiplying that amount by the number of days for the period April 1, 2016 through 

September 12, 2020. The form indicated that, from April 16 through November 30, 2016, 

appellant received an overpayment of $8,977.86, from December 1, 2016 through November 30, 

2017, she received an overpayment of $13,474.52,from December 1, 2017 through November 30, 

2018, she received an overpayment of $13,739.24,from December 1, 2018 through November 30, 

2019, she received an overpayment of $14,133.92, from December 1 through 31, 2019, she

received an overpayment of $1,219.32, and from January 1 through September 12, 2020, she

received an overpayment of $13,212.13, for a total overpayment of $64,756.99. 

On September 18, 2020 OWCP issued a preliminary overpayment determination finding 

that an overpayment of compensation in the amount of $64,756.99 had been created. It explained 

that the overpayment occurred because appellant’s SSA age-related retirement benefits that she 
3

received from April 1, 2016 through September 12, 2020 were partially based on credits earned 

while working for the Federal Government, and that this portion of her SSA benefit constituted a 

prohibited dual benefit. OWCP found that she was without fault in the creation of the 

overpayment. It requested that appellant complete an enclosed overpayment recovery 

questionnaire (Form OWCP-20) and submit 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. Additionally, OWCP provided an overpayment 

action request form and advised her that, within 30 days of the date of the letter, she could request 

a final decision based on the written record or request a prerecoupment hearing. 

On the overpayment action request form dated October 4, 2020, appellant requested that 

OWCP make a decision based on the written evidence regarding possible waiver of the 

overpayment. She requested waiver of recovery of the overpayment, explaining that it would be 

very difficult for her to pay backany money. On a completed Form OWCP-20, appellantindicated 

that her total monthly income was $3,920.00. She noted that her monthly expenses were $3,550.00 

for rent or mortgage, $300.00 for food, $100.00 for clothing, $450.00 for utilities, and $400.00 for 

other expenses. Appellant indicated that she also owned a rental house for which she paid a 

monthly mortgage of $1,117.00, including insurance, taxes, and repairs. She also indicated that 

she had $1,600.00 in assets. Supporting financial documentation was not received.

By decision dated January 7, 2021, OWCP finalized its preliminary overpayment 

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

$64,756.00, for the period April 1, 2016 through September 12, 2020, because it had failed to 

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

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

the overpayment, but denied waiver of recovery of the overpayment because the evidence of record 

was insufficient to establish that recovery of an overpayment would defeat the purpose of FECA 

or would be against equity and good conscience. OWCP required recovery of the overpayment by 

deducting $400.00 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 of an employee resulting from personal injury sustained while in the performance of his 

or her federal employment.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 When an overpayment of compensation has 

been made to an individual because of an error of fact or law, adjustment shall be made under 

regulations prescribed by the Secretary of Labor by decreasing later payments to which the 

individual is entitled.5

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

Id. at § 8129(a).
4

Section 10.421(d) of FECA implementing regulations requires that OWCP reduce the 

amount of compensation by the amount of SSA age-based 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 OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $64,756.00, for the period April 1, 2016 through September 12, 

2020, as she concurrently received FECA wage-loss compensation and SSA age-related retirement 

benefits without an appropriate offset.

As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA 

age-related retirement benefits attributable to federal service for the same period.8 The evidence 

of record establishes that appellant had concurrently received wage-loss compensation benefits 

and SSA age-related retirement benefits that were attributable to her federal service from April 1, 

2016 through September 12, 2020. Consequently, the fact of the overpayment has been 

established.

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

benefits that were attributable to federal service must be calculated. OWCP received 

documentation from SSA with respect to the specific amounts of SSA age-related retirement 

benefits that were attributable to federal service. SSA provided its rate with FERS and without 

FERS during the specific period April 1, 2016 through September 12, 2020. OWCP provided its 

calculations for each relevant period based on SSA’s worksheet.

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

period April 1, 2016 through September 12, 2020 and finds that an overpayment of compensation

in the amount of $64,756.00 has been established. 

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an individual who is without fault in creating or 

accepting an overpayment is still subject to recovery of the overpayment unless adjustment or 

recovery would defeat the purpose of FECA or would be against equity and good conscience. 9

6

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

7 FECA Bulletin No. 97-09 (issued February3, 1997); see M.S.,Docket No. 20-0068 (issued May 14, 2021).

8

Supra note 6; see D.W., Docket No. 20-1533 (issued May 27, 2021); M.R., Docket No. 20-0427 (issued 

October 30, 2020); A.C., Docket No. 18-1550 (issued February 21, 2019); N.B., Docket No. 18-0795 (issued 

January 4, 2019).

9

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C., Docket No. 19-0699 (issued 

February12, 2020).
5

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.10

Recovery of an overpayment will defeat the purpose of FECA if 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. 11 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.12

OWCP’s regulations provide 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.13 Failure to submit the requested information 

within 30 days of the request shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished. 14

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. 15

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

defeat the purpose of FECA or be against equity and good conscience because she did not provide

any necessary supporting financial information. In its preliminary overpayment determination 

dated September 18, 2020, OWCP explained the importance of providing the completed

overpayment questionnaire and supporting financial documentation, including copies of income 

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

11 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 6.400.4a.(2) (September 2020).

12 Id. at § 10.437(a)(b).

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

14 Id. at § 10.438(b).

15 Id. at § 10.436.
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tax returns, bank account statements, bills, pay slips, and any other records to su pport income, 

expenses, and assets. While appellant completed the Form OWCP-20, she did not provide 

documentation supporting her reported income, expenses, or assets. As she did not submit the 

information required under section 10.438 of OWCP’s regulations, which was necessary to 

determine her eligibility for waiver, OWCP properly denied waiver of recovery of the

overpayment.

16

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(a) of OWCP s regulations18 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 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.”

19

ANALYSIS -- ISSUE 3

The Board finds that OWCP improperly required recovery of the overpayment by 

deducting $400.00 from appellant’s continuing compensation payments every 28 days. 

The record reflects that appellant received FECA compensation benefits on the periodic 

rolls in the net amount of $1,363.96 every 28 days as of September 13, 2020. While she completed 

the Form OWCP-20, she did not provide documentation supporting her reported income, expenses, 

or assets.

OWCP’s procedures provide that, if no response to the preliminary overpayment 

determination is received, which provides supporting financial documentation, OWCP should set 

the rate of recovery at 25 percent of the 28-day net compensation amount until the balance of the 

overpayment is paid in full.20 The Board notes that 25 percent of $1,363.96 is $341.00. The Board 

therefore finds that OWCP abused its discretion by deducting$400.00 from appellant’s continuing 

compensation payments, every 28 days.

16 D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued March 2, 2017).

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

18 Id. at § 10.441(a).

19 Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

20 Supra note 11at Chapter 6.500.8(c)(1) (September 2018); M.W., Docket No. 20-1107 (issued March 17, 2021).
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CONCLUSION

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

of compensation in the amount of $64,756.99, for the period April 1, 2016 through September 18, 

2020, as she concurrently received FECA wage-loss compensation and SSA age-related retirement 

benefits without an appropriate offset. The Board further finds that OWCP properly denied waiver 

of recovery of the overpayment. The Board also finds that OWCP improperly required recovery 

of the overpayment by deducting $400.00 from appellant’s continuing compensation payments 

every 28 days. 

ORDER

IT IS HEREBY ORDERED THAT the January 7, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and reversed in part.

Issued: February 28, 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