United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.W., Appellant

and

DEPARTMENT OF THE NAVY, ATLANTIC 

MILITARY SEALIFT COMMAND, 

Virginia Beach, VA, Employer

__________________________________________

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Docket No. 22-1012

Issued: January 20, 2023

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 June 21, 2022 appellant filed a timely appeal from a January 5, 2022 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 $58,443.59 for the period September 1, 2009 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the January5, 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

through May 22, 2021, for which he was without fault, because he concurrently received FECA 

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 $431.85 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On August 20, 1998 appellant, then a 44-year-old merchant mariner, filed an occupational 

disease claim (Form CA-2) alleging that he developed pinched nerves in his neck due to factors of 

his federal employment as an able seaman. He noted that he first became aware of his condition 

on June 20, 1992 and realized its relation to his federal employment on July 20, 1998. Appellant

stopped work on July 23, 1998. OWCP accepted his claim for acceleration of cervical 

degenerative disc disease and cervical radiculopathy. It paid appellant wage-loss compensation 

on the supplemental rolls as of July 23, 1998 and on the periodic rolls as of June 16, 2002. 

On March 5, 2020 SSA forwarded a completed Federal Employees Retirement System 

(FERS)/SSA dual benefits form to OWCP, which reported appellant’s SSA age-related retirement 

benefit rates with and without a FERS offset for the period September 2009 through 

December 2019. 

On March 26, 2021 the employing establishment advised that appellant’s retirement code 

was “K” (FERS). 

In a May 19, 2021 FERS/SSA dual benefits form, SSA reported appellant’s SSA agerelated retirement benefit rates with and without a FERS offset for the period September 2009 

through December 2020. Beginning September 2009, the SSA rate with FERS was $633.00 and 

without FERS was $249.00. Beginning December 2011, the SSA rate with FERS was $656.00 

and without FERS was $258.00. Beginning July 2012, the SSA rate with FERS was $655.90 and 

without FERS was $257.90. Beginning December 2012, the SSA rate with FERS was $666.90 

and without FERS was $262.90. Beginning December 2013, the SSA rate with FERS was $676.90 

and without FERS was $266.90. Beginning December 2014, the SSA rate with FERS was $687.90 

and without FERS was $270.90. Beginning December 2015, the SSA rate with FERS was $688.80 

and without FERS was $270.80. Beginning December 2016, the SSA rate with FERS was $690.00

and without FERS was $272.00. Beginning December 2017, the SSA rate with FERS was $704.00 

and without FERS was $277.00. Beginning December 2018, the SSA rate with FERS was $723.50 

and without FERS was $285.50. Beginning December 2019, the SSA rate with FERS was $735.60 

and without FERS was $289.60. Beginning December 2020, the SSA rate with FERS was $744.50 

and without FERS was $293.50.

In a FERS offset overpayment calculation worksheet dated June 15, 2021, OWCP used the 

information provided by SSA on May 19, 2021 to calculate the 28-day FERS offset for the relevant 

periods and calculated a total overpayment in the amount of $58,443.59. It found that from

September 1 through November 30, 2009 appellant received an overpayment in the amount of 

$1,152.00; from December 1, 2009 through November 30, 2010 appellant received an 

overpayment in the amount of $4,620.66; from December 1, 2010 through November 30, 2011 

appellant received an overpayment in the amount of $4,620.66; from December 1, 2011 through
3

June 30, 2012 appellant received an overpayment in the amount of $2,794.75; from July 1 through

November 30, 2012 appellant received an overpayment in the amount of $2,007.49; from 

December 1, 2012 through November 30, 2013 appellant received an overpayment in the amount 

of $4,861.32; from December 1, 2013 through November 30, 2014 appellant received an 

overpayment in the amount of $4,933.52; from December 1, 2014 through November 30, 2015 

appellant received an overpayment in the amount of $5,017.75; from December 1, 2015 through

November 30, 2016 appellant received an overpayment in the amount of $5,043.56; from 

December 1, 2016 through November 30, 2017 appellant received an overpayment in the amount 

of $5,029.78; from December 1, 2017 through November 30, 2018 appellant received an 

overpayment in the amount of $5,138.08; from December 1, 2018 through November 30, 2019 

appellant received an overpayment in the amount of $5,270.44; from December 1, 2019 through

November 30, 2020 appellant received an overpayment in the amount of $5,381.41; and from 

December 1, 2020 through May 22, 2021 appellant received an overpayment in the amount of

$2,572.19. 

In a June 16, 2021 letter, OWCP informed appellant that his wage-loss compensation 

benefits would be reduced effective May 23, 2021 as a result of the portion of his SSA benefits 

attributed to his federal service since September 1, 2009 which had not been offset due to his 

FECA compensation benefits under 20 C.F.R. § 10.421(d). Appellant was to receive $1,751.97 

every 28 days as of May 23, 2021. 

In a preliminary overpayment determination dated July 8, 2021, OWCP notified appellant 

that he had received an overpayment of compensation in the amount of $58,443.59 because his 

wage-loss compensation benefits had not been reduced for the period September 1, 2009 through 

May 22, 2021 by the portion of his SSA age-related retirement benefits attributable to his federal 

service. It explained each period in the FERS offset calculation and found a total overpayment of 

$58,443.59. OWCP further advised appellant of its preliminary determination that he was without 

fault in the creation of the overpayment and requested that he complete an overpayment action 

request form and an overpayment recovery questionnaire (Form OWCP-20), and submit 

supporting financial documentation, including copies of income tax returns, bank account 

statements, bills and canceled checks, pay slips, and any other records to support income and 

expenses. Additionally, it notified him that he could request a final decision based on the written 

evidence or a prerecoupment hearing within 30 days.

On July 22, 2021 appellant requested a prerecoupment hearing regarding possible waiver 

of recovery of the overpayment with OWCP’s Branch of Hearings and Review. Appellant 

submitted a completed Form OWCP-20 dated July 22, 2021, wherein he noted monthly income of 

$5,229.89 and monthly expenses of $4,294.00. No supporting financial documentation was 

received. 

By decision dated September 8, 2021, an OWCP hearing representative conducted a 

preliminary review and determined that the case was not in posture for a hearing as there was no 

narrative explanation in the decision which explained the overpayment calculation. Thus, the 

hearing representative remanded the case to OWCP to issue a new preliminary overpayment 

determination which explained how the overpayment was calculated. 
4

In a preliminary overpayment determination dated September 27, 2021, OWCP notified 

appellant that he had received an overpayment of compensation in the amount of $58,443.59 

because his wage-loss compensation benefits had not been reduced for the period September 1, 

2009 through May 22, 2021 by the portion of his SSA age-related retirement benefits that were 

attributable to his federal service. It calculated the overpayment amount by determining the 

difference between his SSA amount with and without FERS for each stated period and added this 

amount to find a total overpayment of $58,443.59. OWCP further advised appellant of its 

preliminary determination that he was without fault in the creation of the overpayment. It

requested that he complete an overpayment action request form and a Form OWCP-20, and submit 

supporting financial documentation, including copies of income tax returns, bank account 

statements, bills and canceled checks, pay slips, and other records to support his reported income 

and expenses. Additionally, OWCP notified appellant that he could request a final decision based 

on the written evidence or a prerecoupment hearing within 30 days. No response was received.

OWCP, by decision dated January 5, 2022, finalized the preliminary overpayment 

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

$58,443.59 for the period September 1, 2009 through May 22, 2021 for which he was not at fault, 

because his FECA compensation payments were not offset by the portion of his SSA age -related 

retirement benefits attributable to his federal service. It found that he was without fault in the 

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

insufficient to establish that recovery of an overpayment would def eat the purpose of FECA or 

would be against equity and good conscience. OWCP noted that appellant did not respond to its 

preliminary overpayment determination. It required recovery of the overpayment by deducting 

$431.85 from his 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 

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 states that FECA 

benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA 

age-related retirement benefits earned as a federal employee is part of the FERS retirement 

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August20, 2018).
5

package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual 

benefit.6

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $58,443.59 for the period September 1, 2009 through May 22, 

2021, for which he was without fault, because he concurrently received FECA wage -loss 

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

Documentation of record from the employing establishment confirms that appellant was 

under Code “K” signifying FERS. 

OWCP paid appellant FECA wage-loss compensation on the periodic rolls beginning 

February 28, 1999. The case record establishes that he concurrently received SSA age-related 

retirement benefits beginning September 1, 2009, 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.7 Thus, the record establishes 

that appellant received an overpayment of FECA wage-loss compensation.8

OWCP received documentation from SSA with respect to appellant’s specific SSA agerelated retirement benefits that were attributable to federal service. SSA provided its rates with 

FERS and without FERS for specific periods September 2009 through December 2020. OWCP 

then provided its calculations for the period September 1, 2009 through May 22, 2021 based on 

SSA’s dual benefits form and determined that appellant received an overpayment in the amount of 

$58,443.59.

The Board has reviewed OWCP’s calculations and finds that it properly determined that 

appellant received prohibited dual benefits totaling $58,443.59 for the period September 1, 2009 

through May 22, 2021. 

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

6 FECA Bulletin No. 97-09 (issued February 3, 1997);see also P.P., Docket No. 22-0819 (issued November 23, 

2022); N.B.,Docket No. 18-0795 (issued January 4, 2019).

7

20 C.F.R. § 10.421(d); id.; L.D., Docket No. 19-0606 (issued November 21, 2019); A.C., Docket No. 18-1550 

(issued February 21, 2019);S.M., supranote 5.

8

Id.

9

5 U.S.C. § 8129.
6

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.10 An individual is deemed to meet current 

ordinary and necessary living expenses if monthly income does not exceed monthly expenses by 

more than $50.00.11

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

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. The 

information is also used to determine the repayment schedule, if necessary. 13

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 

conscience.14 However, appellant had the responsibility to provide financial information and 

supporting documentation to OWCP, but failed to provide the latter.

15

OWCP requested that appellant provide a completed Form OWCP-20 with 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. Appellant 

10 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).

11 Id. at Chapter 6.400.4.a(3); see also N.J.,Docket No. 19-1170 (issued January 10, 2020);M.A., Docket No. 

18-1666 (issued April26, 2019).

12 20 C.F.R. § 10.437(a)(b).

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

14 Id. at § 10.436.

15 Id. at § 10.438;P.P., supra note 6; S.P.,Docket No. 19-1318 (issued July 31, 2020).
7

subsequently submitted a completed Form OWCP-20 dated July 22, 2021, but did not submit 

financial documentation to support his reported income, assets, and expenses. Thus, OWCP did 

not have financial documentation necessary 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 his eligibility for waiver, the Board finds that OWCP properly 

denied waiver of recovery of the overpayment compensation.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations provides in pertinent part that, 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 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 any hardship.16

When an individual fails to provide requested information or supporting financial 

documentation regardingincome, expenses, and assets, OWCP should follow minimum collection 

guidelines.17

ANALYSIS -- ISSUE 3

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

$431.85 from appellant’s continuing compensation payments every 28 days.

The overpaid individual is responsible for providing information and supporting financial 

documentation regarding income, expenses, and assets as required by OWCP.18 When an 

individual fails to provide requested financial information, OWCP should follow minimum 

collection guidelines designed to collect the debt promptly and in full. 19 As appellant did not 

submit supporting financial documentation to OWCP as requested, the Board finds that OWCP 

properly required recovery of the $58,443.59 overpayment at the rate of $431.85 from his

continuing compensation payments every 28 days.

20

16 Id. at § 10.441(a);A.S.,Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056, 

1062 (1988).

17 Supra note 10 at Chapter 6.500.8c(1) (September 2020).

18 20 C.F.R. § 10.438(a).

19 See P.P., supra note 6;J.A.,Docket No. 19-1946 (issued July 13, 2020);Frederick Arters, 53 ECAB 397 (2002); 

supra note 10 at Chapter 6.500.3 (September 2020). Id. at § 10.436; id. at Chapter 6.400.4a(2).

20 See J.A., id.; E.K., Docket No. 18-0587 (issued October 1, 2018);S.B.,Docket No. 16-1795 (issued 

March 2, 2017).
8

CONCLUSION

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

of compensation in the amount of $58,443.59 for the period September 1, 2009 through May 22, 

2021, for which he was without fault, because he 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 and properly 

required recovery of the overpayment by deducting $431.85 from his continuing compensation 

payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the January 5, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 20, 2023

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