United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.T., Appellant

and

U.S. POSTAL SERVICE, PROCESSING &

DISTRIBUTION CENTER, Houston, TX, 

Employer

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Docket No. 20-1257

Issued: July 29, 2022

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 4, 2020 appellant filed a timely appeal from a May 14, 2020 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 $11,419.63 during the period June 1, 2018 through 

May 25, 2019, 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 May 14, 2020 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

Administration (SSA) age-related retirement benefits and FECA wage-loss compensation benefits,

without 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 

$620.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On September 7, 2005 appellant, then a 47-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on September 4, 2005 she sustained muscle spasm and pain to the low 

back and right knee when she pulled a full container with another worker, while in the performance 

of duty. On the reverse side of the claim form, the employing establishment noted appellant’s 

retirement system as Federal Employees Retirement System (FERS). OWCP initially accepted 

the claim for lumbar, thoracic, and right shoulder sprain/strain, and later expanded acceptance of 

the claim to include brachial neuritis or radiculitis, cervical spinal stenosis, and displacement of 

the cervical intervertebral disc without myelopathy. Appellant stopped work on September 5, 

2005 and returned to work on September 16, 2005. OWCP paid her wage-loss compensation on 

the supplemental and periodic rolls.

3

On April 3, 2019 OWCP forwarded a FERS/SSA dual benefits form to SSA requesting

information from SSA regarding appellant’s potential receipt of dual benefits. 

On April 22, 2019 OWCP received a completed FERS/SSA dual benefits form from SSA 

dated April 17, 2019, wherein SSA reported appellant’s SSA age-related retirement benefit rates 

with and without a FERS offset. The form indicated that the SSA rate with FERS was $1,115.70 

effective June 2018 and $1,146.90 effective December 2018. The form further indicated that the 

SSA rate without FERS was $163.90 effective June 2018 and $168.40 effective December 2018. 

OWCP completed a FERS offset overpayment calculation form on May 23, 2019. It 

determined the 28-day FERS offset amount for the days in each period and computed a total 

overpayment of $11,630.78. OWCP listed appellant’s SSA rates with FERS as $1,150.70 effective 

June 1, 2018 and $1,146.90 effective December 1, 2018. The form indicated that from June 1 

through November 30, 2018, appellant received an overpayment of compensation in the amount 

of $5,953.33 and from December 1, 2018 through May 25, 2019, she received an overpayment of 

compensation in the amount of $5,677.45. 

On June 13, 2019 OWCP notified appellant of its preliminary overpayment determination 

that she received an overpayment of compensation in the amount of $11,630.78 as she had received 

FECA wage-loss compensation benefits for the period June 1, 2018 through May 25, 2019 that 

had not been reduced by the portion of her SSA age-related retirement benefits attributable to her 

federal service, and that this portion of her SSA benefit was a prohibited dual benefit. It further 

advised her of its preliminary determination that she was at fault in the creation of the 

overpayment. OWCP 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 

3

In a letter dated March 30, 2010, the Office of Personnel Management informed appellant that her application for 

disability retirement under FERS had been approved. Appellant elected to receive FECA benefits in lieu of FERS 

benefits on June8, 2010.
3

to support her reported income and expenses. Additionally, it provided an overpayment action 

request form and notified her 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 June 19, 2019 appellant requested that OWCP render a decision based upon the written 

evidence regarding possible waiver of recovery of the overpayment. She contested the fact and 

amount of the overpayment as well as the determination that she was at fault in the creation of the 

overpayment. In an attached Form OWCP-20, appellant advised that her total monthly income 

included $758.20 in SSA benefits. She further advised that her monthly expenses included: 

$254.29 for housing, housing insurance, flood insurance, and car insurance; $250.00 for food; 

$100.00 for clothing; $265.72 for utilities, and $1,504.31 for other expenses, for a total of 

$2,374.32 in monthly expenses. Appellant indicated that she had assets of cash on hand of 

$128.00, as well as checking and savings account balances of $7,135.86 and $30,247.09, 

respectively, for total assets of $37,510.85. She contended that SSA paid $735.70 per month from 

June through December 2018 and $758.20 per month from January through June 2019. Appellant 

enclosed a letter from SSA dated May 31, 2018 that noted her monthly benefit had been changed 

to $1,115.70 as of June 2018. An undated letter from SSA informed her that her monthly payment 

before deductions would increase to $1,146.50 in 2019 and that she would receive her next 

payment on January 9, 2019. Appellant submitted checking account statements dated 

November 21, 2018 through May 17, 2019, but did not otherwise document her income, assets, or 

expenses. 

By decision dated May 14, 2020, OWCP finalized its preliminary overpayment 

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

$11,419.63, for the period June 1, 2018 through May 25, 2019. It enclosed a FERS offset 

overpayment calculation form dated May 14, 2020 which indicated that as of June 1, 2018 

appellant’s SSA rate with FERS was $1,115.70 and as of December 1, 2018 was $1,146.90.

OWCP further found that she was without fault in the creation of the overpayment, but denied 

waiver of recovery of the overpayment, finding that “the overpayment cannot be waived because 

there is no evidence to support that this overpayment should be waived.” It required repayment of 

the overpayment by deducting $620.00 from appellant’s continuing compensation benefits 

beginning May 24, 2020.

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.4 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.5

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 

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.
4

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 has established that appellant received an overpayment of 

compensation in the amount of $11,419.63 during the period June 1, 2018 through May 25, 2019, 

for which she without fault, as she concurrently received SSA age-related retirement benefits and 

FECA wage-loss compensation benefits, without appropriate offset.

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.

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 federal service during 

the period June 1, 2018 through May 25, 2019. Consequently, the fact of overpayment has been 

established.9

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 June 1, 2018 through May 25, 2019. In the May 14, 2020 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 

period June 1, 2018 through May 25, 2019 and finds that an overpayment of compensation in the 

amount of $11,419.63 has been established. OWCP obtained documentation from SSA 

establishing that appellant’s SSA rate with FERS was $1,115.70 as of June 1, 2018, and $1,146.90 

as of December 1, 2018. Therefore, appellant received an overpayment of FECA compensation 

in the amount of $11,419.63 during the period June 1, 2018 through May 25, 2019.

6

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).

7 FECA Bulletin No. 97-09 (issued February3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

8 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

See L.B., Docket No. 19-1322 (issued January 27, 2020).
5

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. 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

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.12 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. 13

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.14 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.15

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the overpayment.

10 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).

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

12 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).

13 Id. at § 10.437(a)(b).

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

15 Id. at § 10.438(b).
6

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. 16

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 June 13, 2019, OWCP explained the importance of providing the completed overpayment 

questionnaire and supporting financial documentation, including copies of income tax returns, 

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

assets. While appellant completed the Form OWCP-20, and submitted checking account records,

she did not provide other 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.17

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.18

Section 10.441(a) of OWCP s regulations19 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.”

20

ANALYSIS -- ISSUE 2

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

$620.00 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 $2,480.32 every 28 days as of March 1, 2020. While she completed the 

16 Id. at § 10.436.

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

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

19 Id. at § 10.441(a).

20 Id.;see C.M., Docket No. 19-1451 (issued March 4, 2020).
7

Form OWCP-20, she did not provide sufficient 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.21 The Board notes that 25 percent of $2,480.32 is $620.00. The Board 

therefore finds that OWCP properly required recovery of the overpayment from appellant’s 

continuing compensation payments at the rate of $620.00 every 28 days.

CONCLUSION

The Board finds that appellant received an overpayment of compensation during the period 

June 1, 2018 through May 25, 2019, in the amount of $11,419.63, for which she was without fault,

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

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

of the recovery of the overpayment, and properly required recovery of the overpayment by 

deducting $620.00 from appellant’s continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the May 14, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 29, 2022

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

21 Supra note 12at Chapter 6.500.8(c)(1) (September 2018); M.W.,Docket No. 20-1107 (issued March 17, 2021).