United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Oakland, CA, Employer

__________________________________________

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Docket No. 22-0745

Issued: November 7, 2022

Appearances: Case Submitted on the Record

Eddie Reyna, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 30, 2022 appellant, through her representative, filed a timely appeal from an 

October 4, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s October 4, 2021 decisionwas April2, 2022. As this fell 

on a Saturday, the appeal was due the next business day, which was Monday, April 4, 2022, rendering the appeal 

timely filed. See 20 C.F.R. § 501.3(f)(3).
2

Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether OWCP properly found that appellant received an overpayment 

of compensation in the amount of $58,146.99 during the periods November 1, 2013 through 

November 11, 2017 and May 28, 2018 through April 27, 2019 for which she was without fault, 

because she concurrently received Social Security Administration (SSA) age-related retirement 

benefits and FECA wage-loss 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 $441.49 from appellant’s continuing compensation payments 

every 28 days.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On July 11, 2005 appellant, then a 56-year-old processing clerk, filed an occupational 

disease claim (Form CA-2) alleging that she sustained left shoulder, hand, and wrist conditions 

causally related to factors of her federal employment including lifting trays and working with 

machines. Her retirement coverage on the reverse side of the form was noted as Federal 

Employees Retirement System (FERS). OWCP accepted the claim for left shoulder, wrist, and 

hand strain on July 25, 2005. It later expanded the acceptance of appellant’s claim to include left 

shoulder rotator cuff tendinitis and adhesive capsulitis, and left carpal tunnel syndrome. OWCP 

paid her compensation on the supplemental rolls from July 11, 2005 through January 19, 2008 and 

on the periodic rolls from January 20, 2008 through November 19, 2011. By decision dated 

November 16, 2011, it reduced appellant’s compensation based upon her wage-earning capacity 

for the constructive position of an appointment clerk/reception clerk, and again paid her on the 

periodic rolls based upon her loss of wage-earning capacity (LWEC) determination.

By decision dated December 4, 2017, OWCP granted appellant a schedule award for nine 

percent permanent impairment of the left upper extremity, which ran for 28.08 weeks for the period 

from November 12, 2017 through May 27, 2018.

OWCP resumed appellant’s payments on the periodic rolls for her LWEC determination 

as of May 28, 2018.

On April 11, 2019 OWCP provided SSA with a FERS/SSA dual benefits calculation form.

3

5 U.S.C. § 8101 et seq.

4 Docket No. 20-0860 (issued March 23, 2021).
3

On April 15, 2019 SSA completed the dual benefits calculation form, which indicated 

appellant’s SSA benefit rates with a FERS offset and without a FERS offset from November 2013 

through December 2018.

In a May 16, 2019 letter, OWCP indicated that it determined that appellant had 

concurrently received both FECA and FERS/SSA benefits, resulting in a prohibited dual benefit. 

It explained that her FECA compensation would be calculated using an SSA offset beginning 

May 25, 2019.

A May 16, 2019 FERS offset calculation worksheet noted each alleged period of 

overpayment and provided calculations, which resulted in a total overpayment to appellant of 

$64,598.71 during the period November 1, 2013 through April 27, 2019. For the periods 

December 1, 2016 through November 30, 2017 and for December 1, 2017 through November 30, 

2018, the number of days of overpayment was noted to be 365 for each period.

In a preliminary overpayment determination dated May 31, 2019, OWCP informed 

appellant that she received an overpayment of compensation in the amount of $64,598.71 because 

the SSA/FERS offset was not applied to payments for the period November 1, 2013 through 

April 27, 2019. It determined that she was without fault in the creation of the overpayment.

OWCP requested that appellant submit a completed overpayment recovery questionnaire (Form 

OWCP-20) to determine a fair repayment method and advised her that she could request waiver 

of recovery of the overpayment. It requested financial information, including copies of income 

tax returns, bank account statements, bills, pay slips, and any other records to support income and 

expenses. OWCP advised appellant that it would deny waiver if she failed to furnish the requested 

financial information within 30 days. It provided her with an appeal request form and further 

notified her that, within 30 days of the date of the letter, she could request a final decision based 

on the written evidence, or a prerecoupment hearing.

In a July 12, 2019 letter from appellant’s representative, appellant requested waiver of 

recovery of the overpayment. In an attached Form OWCP-20 of even date, she indicated that her 

total monthly income included $3,339.50 in SSA benefits, in addition to $3,362.00 in income from 

her spouse’s pension and interest. Appellant indicated that her total monthly expenses included 

$326.00 in rent or mortgage payments, including property tax; $2,100.00 for food; $550.00 for 

clothing; $760.00 for utilities; and $2,375.00 in other expenses. She indicated that her funds 

included real estate with a market value of $850,000.00 on a mortgage of $450,000.00 under her 

spouse’s and son’s names; $250.00 cash on hand; a balance of $371,534.00 in a checking account; 

and a balance of $13,311.00 in a savings account. Appellant provided tax returns and bank 

statements in support of the provided figures. She contended that she was without fault and that 

the offset had affected her health and daily life expenses. 

By decision dated September 5, 2019, OWCP finalized the May 31, 2019 preliminary 

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

amount of $64,598.71 for the period November 1, 2013 through April 27, 2019 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 failed to establish that recovery of an overpayment would defeat the purpose 
4

of FECA or would be against equity and good conscience. OWCP requested payment in full within 

30 days. 

On March 3, 2020 appellant appealed the September 5, 2019 decision of OWCP to the 

Board. 

By decision dated March 23, 2021, the Board affirmed in part and set aside in part the 

September 5, 2019 decision and remanded the case for further proceedings consistent with the 

Board’s decision. The Board found that ,as appellant was paid schedule award compensation for 

the period November 12, 2017 through May 27, 2018, no overpayment occurred for that period, 

as retirement benefits paid by the Office of Personnel Management or SSA can be paid 

concurrently with schedule award compensation under FECA without deduction from FECA 

benefits.5

Following the Board’s remand, a June 21, 2021 FERS offset calculation worksheet listed 

appellant’s monthly SSA age-related retirement benefit rates with FERS and without FERS for the 

periods November 1, 2013 through November 11, 2017 and May 28, 2018 through April 27, 2019. 

It reported that, beginning November 1, 2013, her SSA rate with FERS was $1,038.80 and without 

FERS was $96.30; beginning December 1, 2013, her rate with FERS was $1,054.30 and without 

FERS was $97.70; beginning December 1, 2014, her rate with FERS was $1,072.20 and without 

FERS was $99.30; beginning December 1, 2016, her rate with FERS was $1,075.40 and without 

FERS was $99.60; beginning May 28, 2018, her rate with FERS was $1,096.80 and without FERS 

was $101.50; and beginning December 1, 2018, her rate with FERS was $1127.50 and without 

FERS was $104.40. It thereafter noted each alleged period of overpayment and provided 

calculations, which resulted in a total overpayment to appellant of $58,146.99 during the periods 

November 1, 2013 through November 11, 2017 and May 28, 2018 through April 27, 2019. 

In a preliminary overpayment determination dated June 21, 2021, OWCP informed 

appellant that she received an overpayment of compensation in the amount of $58,146.99 because 

the SSA/FERS offset was not applied to payments for the periods November 1, 2013 through 

November 11, 2017 and May 28, 2018 through April 27, 2019. It determined that she was without 

fault in the creation of the overpayment. OWCP requested that appellant submit a completed 

overpayment recovery questionnaire (Form OWCP-20) to determine a fair repayment method and 

advised her that she could request a waiver of recovery of the overpayment. It requested financial 

information, including copies of income tax returns, bank account statements, bills, pay slips, and 

any other records to support income and expenses. OWCP advised appellant that it would deny 

waiver if she failed to furnish the requested financial information within 30 days. It provided an 

appeal request form and further notified appellant that within 30 days of the date of the letter she 

could request a final decision based on the written evidence, or a prerecoupment hearing. 

On July 20, 2021 appellant replied to OWCP’s preliminary overpayment determination and 

requested waiver as she was found without fault in the creation of the overpayment. In an attached 

Form OWCP-20, she advised that her total monthly income included $3,459.00 in SSA benefits

and $3,748.75 from other income. Appellant further advised that her monthly expenses included: 

$242.00 for housing, $3,300.00 for food, $500.00 for clothing, $810.00 for utilities, and $2,800.00 

5

Id.
5

in other expenses. She indicated that she had assets of cash on hand of $175.00, a checking account 

balance of $225,593.00, a savings account balance of $13,800.00, and personal property and other 

funds in the amount of $128,155.00, for total assets of $367,723.00.

By decision dated October 4, 2021, OWCP finalized its preliminary overpayment 

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

$58,146.99 for the periods November 1, 2013 through November 11, 2017 and May 28, 2018 

through April 27, 2019. It provided calculation of the overpayment. OWCP further found that 

appellant was without fault in the creation of the overpayment, but denied waiver of recovery of 

the overpayment, finding that her current ordinary and necessary living expenses were exceeded 

by more than $50.00. It required repayment of the overpayment by deducting $441.49 from her

continuing compensation benefits beginning October 10, 2021.

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 

duty.6 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.7

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.8 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.9

ANALYSIS -- ISSUE 1

The Board finds that OWCP has established that appellant received an overpayment of 

compensation in the amount of $58,146.99 during the periods November 1, 2013 through 

November 11, 2017 and May 28, 2018 through April 27, 2019 for which she was without fault, as 

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

benefits without appropriate offset.

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

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).

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

As previously noted, a claimant cannot receive both FECA wage-loss compensation and 

SSA age-related retirement benefits attributable to federal service for the same period.10 The 

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

benefits and SSA age-related retirement benefits that were attributable to federal service during 

the periods November 1, 2013 through November 11, 2017 and May 28, 2018 through 

April 27, 2019. Consequently, the fact of overpayment has been established.11

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 period November 1, 2013 through April 27, 2019. In the October 4, 2021 final 

decision, 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 

periods November 1, 2013 through April 27, 2019 and finds that an overpayment of compensation 

in the amount of $58,146.99 has been established. OWCP obtained documentation from SSA 

establishing her SSA rates with and without FERS during the periods November 1, 2013 through 

November 11, 2017 and May 28, 2018 through April 27, 2019. Therefore, the Board finds that 

appellant received an overpayment of FECA compensation in the amount of $58,146.99 during 

the periods November 1, 2013 through November 11, 2017 and May 28, 2018 through 

April 27, 2019.

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. 12

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.13

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 

10 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 February21, 2019); N.B.,Docket No. 18-0795 (issued January 4, 2019).

11 See L.B., Docket No. 19-1322 (issued January 27, 2020).

12 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).

13 A.C., supra note 10; see Robert Atchison, 41 ECAB 83, 87 (1989).
7

not exceed a specified amount as determined by OWCP. 14 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. 15

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.16 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. 17

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.18 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 total monthly income of $7,207.75. OWCP found that appellant’s total monthly expenses 

were $4,773.65. 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.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 

14 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).

15 Id. at § 10.437(a)(b).

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

17 Id. at § 10.438(b).

18 Id. at § 10.436.

19 See M.C., Docket No. 19-0699 (issued February 12, 2020).
8

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

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(a) of OWCP s regulations23 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.”

24

ANALYSIS -- ISSUE 3

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

$441.49 every 28 days from appellant’s continuing compensation.

The record supports that, in requiring repayment of the overpayment by deducting $441.49 

from appellant’s compensation payments every 28 days, 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, OWCP properly 

required recovery of the overpayment by deducting $441.49 every 28 days from appellant’s 

continuing compensation.25

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

21 See supra note 15.

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

23 Id. at § 10.441(a).

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

25 See J.R., Docket No. 17-0181 (issued August 12, 2020); L.G., Docket No. 19-1274 (issued July 10, 2020).
9

CONCLUSION

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

$58,146.99 for the period November 1, 2013 through November 11, 2017 and May 28, 2018 

through April 27, 2019 for which she was without fault, because she concurrently received SSA 

age-related retirement benefits and FECA wage-loss 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 $441.49 from her continuing 

compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the October 4, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 7, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board