United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.M., Appellant

and

U.S. POSTAL SERVICE, BRICK POST 

OFFICE, Brick, NJ, Employer

__________________________________________

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Docket No. 21-0917

Issued: November 10, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 13, 2021 appellant filed a timely appeal from a November 26, 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.

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $6,474.86 for which she was without fault because she concurrently received FECA 

wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits 

without an appropriate offset for the period April 1 through October 12, 2019; and (2) whether 

OWCP properly denied waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

OWCP accepted that on March 21, 2005 appellant, then a 51-year-old clerk, sustained left 

shoulder impingement syndrome when she pulled flats from a case while in the performance of 

duty. Appellant stopped work on March 22, 2005. On November 8, 2005 and August 24, 2012 

OWCP accepted that appellant sustained recurrences of disability on May 16, June 13, August 12, 

and September 27, 2005 and March 29, 2012. It paid appellant wage-loss compensation on the 

supplemental rolls effective May 10, 2005. 

On October 8, 2019 SSA forwarded a completed Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form to OWCP. The form indicated that, beginning in 

April 2019, appellant’s SSA rate with FERS was $1,415.00 and without FERS was $407.80. 

OWCP, in a letter dated November 4, 2019, informed appellant that her compensation 

would be offset by the portion of her SSA age-related retirement benefits attributable to her federal 

service, effective November 9, 2019.

In a preliminary overpayment determination dated November 13, 2019, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $6,474.86 

because her wage-loss compensation benefits had not been reduced for the period April 1 through 

October 12, 2019 by the portion of her SSA benefits that were attributable to her federal service. 

It calculated the overpayment amount by determining the difference between herSSA amount with 

and without FERS for the stated period and adding this amount to find a total overpayment of 

$6,474.86. OWCP further advised appellant of its preliminary overpayment determination that 

she was without fault in the creation of the overpayment and requested that she complete an 

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

and submit supporting financial documentation. Additionally, itnotified herthat she could request 

a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing. 

OWCP allotted 30 days for appellant to respond. 

On November 25, 2019 appellant completed an overpayment action request form and 

requested that OWCP make a decision based on the written evidence. She claimed that she was 

not aware of an offset because she was receiving SSA age-related retirement benefits and not SSA 

disability benefits. In an accompanying Form OWCP-20 of even date, appellant reported monthly 

income of $2,873.22, including SSA benefits of $1,279.00 and FECA compensation benefits of 

$1,594.22. She reported monthly expenses which included: $1,480.00 for rent; $50.00 for water, 

$120.00 for electric; $40.00 for gas; $25.00 for renter’s insurance; $240.00 for cable and internet 

service; $200.00 for cell phones; $240.00 for car maintenance; $209.00 for car insurance; $250.00 

for food; $150.00 for clothing; $75.00 for prescription and medical co -payments; $75.00 for 

personal necessities; $200.00 for miscellaneous expenses; and $290.00 for credit card payments, 

totaling $3,644.00. Appellantreported no funds. She submitted limited supporting documentation 

of her income and expenses, consisting of bills for cell phone service in the amount of $656.95, 

gas in the amount of $92.97, cable and internet service in the amount of $230.25, water and sewage 

in the amount of $80.39, electric in the amount of $110.19, and a state tax bill for $406.72.

On March 10, 2020 OWCP received an election of benefits form signed by appellant on 

January 14, 2020 in which she elected to receive Office of Personnel Management (OPM) 

retirement benefits, effective March 31, 2020. 
3

OWCP, by decision dated November 26, 2020, finalized the preliminary overpayment 

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

$6,474.86 for the period April 1 through October 12, 2019 for which she was not at fault, because 

her FECA compensation payments were not offset by the portion of her SSA age-related retirement 

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

the overpayment, but denied waiver of recovery because she did not provide financial 

documentation supporting all of her reported expenses. OWCP required recovery of the 

overpayment in full within 30 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 duty.2 However, section 8116 also 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.3 When an overpayment 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.4

Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount

of compensation by the amount of any SSA benefits that are attributable to the federal service of

the employee.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 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 

$6,474.86 for which he was without fault, because she concurrently received FECA wage -loss 

compensation and SSA age-related retirement benefits without an appropriate offset for the period 

April 1 through October 12, 2019.

In its November 20, 2020 decision, OWCP found that an overpayment of compensation 

was created for the period April 1 through October 12, 2019. The overpayment was based on the 

evidence received from SSA with respect to retirement benefits paid to appellant. As noted, a 

claimant cannot receive both compensation for wage loss and SSA age-related retirement benefits 

2

Id. at § 8102(a).

3

Id. at § 8116.

4

Id. at § 8129(a).

5

20 C.F.R. § 10.421(d); see R.R.,Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued 

March 19, 2019); L.J., 59 ECAB 264 (2007).

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

attributable to federal service for the same period.7 The information provided by SSA established 

that appellant received SSA age-related retirement benefits that were attributable to federal service 

beginning April 1, 2019. OWCP, however, neglected to offset her FECA benefits until 

October 12, 2019. Accordingly, the Board finds that it properly determined that appellant received 

an overpayment of wage-loss compensation for the period April 1 through October 12, 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. 8

Recovery of an overpayment would defeat the purpose of FECA if such recovery would 

cause hardship 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, also, if the beneficiary’s assets do not exceed a specified amount 

as determined by OWCP.9 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.10

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.11 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.12

7

5 U.S.C. § 8116(d)(2); see W.C., Docket No. 20-1241 (issued February9, 2021); R.D., Docket No. 19-1598

(issued April 17, 2020); C.M., Docket No. 19-1451 (issued March 4, 2020); L.W., Docket No. 19-0787 (issued 

October 23, 2019); J.T., Docket No. 18-1791 (issued May 17, 2019).

8

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued 

December 21, 2017).

9

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

10 Id. at § 10.437(a)(b).

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

12 Id. at § 10.438(b).
5

ANALYSIS -- ISSUE 2

The Board further 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. 13

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

defeat the purpose of FECA because she has not provided the necessary supporting financial 

information. Appellant submitted a completed Form OWCP-20 on November 25, 2019 and noted 

a total monthly income of $2,873.22 and total monthly expenses of $3,644.00. However, she only 

submitted limited supporting financial documentation of her cell phone, utility, and cable bills, 

and a state tax bill. No other documentation supporting her purported income or expenses was 

submitted. Although appellant had been advised to submit documentation substantiating all her 

income and expenses in OWCP’s preliminary overpayment determination dated November 13, 

2019, she failed to provide sufficient documentation of her income and expenses as required by 

section 10.438 of its regulations.14 OWCP, therefore, 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.15

Appellant also has not established that recovery of the overpayment would be against 

equity and good conscience because she has not shown, for the reasons noted above, that she would 

experience severe financial hardship in attempting to repay the debt or that she relinquished a 

valuable right or changed her position for the worse in reliance on the payment, which created the 

overpayment.16 Consequently, 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

Because appellant has not established that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, she has failed to establish that OWCP 

acted improperly by denying waiver of recovery of the $6,474.86 overpayment.18

13 Id. at § 10.436.

14 A.W., Docket No. 20-1210 (issued June 3, 2021); P.B., Docket No. 20-0862 (issued November 25, 

2020); R.W.,Docket No. 18-1059 (issued February 6, 2019).

15 Supra notes 11 and 14.

16 See D.B., Docket No. 21-0009 (issued June 7, 2021); P.B., supra note 14; G.G.,Docket No. 19-0684 (issued 

December 23, 2019); V.T.,Docket No. 18-0628 (issued October 25, 2018).

17 See D.B., id.; G.G., id.; A.F.,Docket No. 19-0054 (issued June 12, 2019);see S.B.,Docket No. 16-1795 (issued 

March 2, 2017).

18 See A.W., supra note 14; S.W.,Docket No. 20-0363 (issued November 23, 2020); B.C.,Docket No. 19-0629 

(issued June 2, 2020).
6

CONCLUSION

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

$6,474.86 for which he was without fault, because she concurrently received FECA wage -loss 

compensation and SSA age-related retirement benefits without an appropriate offset for the period 

April 1 through October 12, 2019. The Board further finds that OWCP properly denied waiver of 

recovery of the overpayment.19

ORDER

IT IS HEREBY ORDERED THAT the November 26, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 10, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

19 With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP 

seeks recovery from continuing compensation benefits. D.J.,Docket No. 19-1163 (issued September 22, 2020); J.R.,

Docket No. 19-1418 (issued March 4, 2020). As appellant was not in receipt of continuing wage-loss compensation 

at the time of OWCP’s overpayment determination, the Board does not have jurisdiction over the method of recovery 

of the overpayment in this case. See id.; MiguelA. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295 

(2000); 20 C.F.R. § 10.441.