United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland Heights, OH, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-0148

Issued: June 7, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On November 10, 2020 appellant, through counsel, filed a timely appeal from an

October 21, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to consider the merits of this case.3

 

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 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the October 21, 2020 decision, appellant submitted additional evidence to OWCP. 

However, the Board’s Rules of Procedures 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. 
2

ISSUES

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

overpayment of compensation in the amount of $35,131.35 for which he was without fault, for the 

period January 1, 2017 through August 15, 2020, because he concurrently received FECA wageloss compensation and Social Security Administration (SSA) age-related retirement benefits 

without an appropriate offset; (2) whether it properly denied waiver of recovery of the 

overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting 

$236.58 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On October 24, 2011 appellant then a 60-year-old window clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he injured his right knee when he lost his balance as 

he was stepping off of a rubber floor mat while in the performance of duty.4 His retirement plan 

was listed as Federal Employees Retirement System (FERS). OWCP accepted his claim for right 

knee sprain and subsequently expanded it to include right knee medial meniscus tear and anterior 

cruciate ligament (ACL) tear of the right knee. OWCP paid him wage-loss compensation on the 

supplemental rolls beginning December 7, 2011 and on the periodic rolls, effective May 6, 2012.5 

Appellant returned to a limited-duty position on November 14, 2015. From November 16, 2015,

appellant was paid on the supplemental rolls and pursuant to a wage-earning capacity 

determination, effective June 11, 2016. 

By decision dated July 1, 2016, OWCP reduced appellant’s compensation, effective 

November 14, 2015, based on his capacity to earn wages as a sales and service associate.

On August 30, 2016 OWCP received a FERS/SSA dual benefits calculation form wherein 

SSA advised that offset was not applicable because appellant was receiving disability benefits. 

On March 23, 2020 OWCP sent a FERS/SSA dual benefits calculation form to SSA.6

On July 22, 2020 OWCP received a completed FERS/SSA dual benefits calculation form 

from SSA wherein SSA advised that, effective January 2017, appellant reached retirement age and 

became eligible for SSA age-related retirement benefits. SSA calculated appellant’s SSA agerelated retirement benefit rates with FERS offset and without a FERS offset from January 1, 2017

through December 1, 2019. Beginning January and April 2017, the SSA rate with FERS was 

 

4 Appellant has a previous claim for a back injury that occurred on September 24, 2008, which OWCP accepted for 

closed dislocation of the lumbar vertebra, under OWCP File No. xxxxxx222. On February 6, 2010 he filed a claim 

for head and back injuries after a fall that day. That claim was accepted for post-traumatic headache, lumbar sprain, 

and coccyx fracture. On August 29, 2011 appellant filed a claim for bilateral hand pain that was accepted for bilateral 

hand osteoarthritis, under OWCP File No. xxxxxx710. These claims have been administratively combined with the 

current claim, with OWCP File No. xxxxxx222 designated as the master.

5 On February 3, 2012 the employing establishment advised appellant that the Office of Personnel Management 

(OPM) approved his disability retirement application. The effective date of retirement was January 13, 2012. On a 

March 7, 2012 Form CA-1105 appellant elected to receive FECA benefits.

6

In a letter dated March 24, 2020, the employing establishment indicated that, due to appellant’s current restrictions 

listed on the duty status report (Form CA-17), there was no work available for him to perform. 
3

$1,545.90 and without FERS was $780.60. Beginning December 2017, the SSA rate with FERS 

was $1,576.80 and without FERS was $796.20. Beginning January 2018, the SSA rate with FERS 

was $1,593.90 and without FERS was $796.20. Beginning December 2018, the SSA rate with 

FERS was $1,638.50 and without FERS was $818.40. Beginning January 2019, the SSA rate with 

FERS was $1,652.90 and without FERS was $831.40. Beginning December 2019, the SSA rate 

with FERS was $1,679.30 and without FERS was $831.40.

On September 2, 2020 OWCP prepared a FERS offset calculation worksheet wherein it 

noted the calculation of appellant’s SSA offset overpayment from January 1, 2017 through 

August 15, 2020 and computed a total overpayment amount of $35,131.35. This form indicated 

that, beginning January 1 through March 31, 2017, appellant received an overpayment in the 

amount of $2,270.67. Beginning April 1 through November 30, 2017, he received an overpayment 

in the amount of $6,156.04. Beginning December 1 through 31, 2017, appellant received an 

overpayment in the amount of $797.76. Beginning January 1 through November 30, 2018, he 

received an overpayment in the amount of $8,783.47. Beginning December 1 through 31, 2018, 

appellant received an overpayment in the amount of $838.12. Beginning January 1 through 

November 30, 2019, he received an overpayment in the amount of $9,045.53. Beginning 

December 1, 2019 through August 15, 2020, appellant received an overpayment in the amount of 

$7,239.76 

In a preliminary overpayment determination dated September 3, 2020, OWCP informed 

appellant that he received an overpayment of compensation in the amount of $35,131.35 because 

he received SSA age-related retirement benefits from January 1, 2017 through August 15, 2020 

that were partially based on credits earned while working in the Federal Government and this 

constituted a prohibited dual benefit. It determined that he 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 reasonable payment method, and advised him that 

he could request waiver of recovery of the overpayment. It further requested that he provide 

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

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

expenses. Additionally, OWCP further notified appellant that, within 30 days of the date of the 

letter, he could request a telephone conference, a final decision based on the written evidence, or 

a prerecoupment hearing.

On September 29, 2020 appellant submitted an overpayment action request form, indicting

his disagreement with the amount of the overpayment and requested a waiver because he was 

found to be without fault in the creation of the overpayment. In an attached statement of even 

date, he noted his disagreement with the overpayment and indicated that he had been working 

subject to a loss of wage-earning capacity determination and wondered if the SSA overpayment 

formula was based on full-time income. 

By decision dated October 21, 2020, OWCP’s hearing representative finalized the 

preliminary overpayment determination, finding that appellant had received an overpayment of 

compensation in the amount of $35,131.35 for the period January 1, 2017 through August 15, 2020

because it failed to offset his compensation payments by the portion of his SSA age-related 

retirement benefits that were attributable to his federal service. OWCP further found that he 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 
4

the purpose of FECA or be against equity and good conscience. It required recovery of the 

overpayment by deducting $236.58 from appellant’s 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.7 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.8

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.9 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 

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

benefit.10

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $35,131.35 for which he was without fault, for the period 

January 1, 2017 through August 15, 2020 because he concurrently received FECA wage-loss 

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

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

SSA retirement benefits attributable to federal service for the same period.11 The record supports

that appellant received FECA wage-loss compensation beginning December 7, 2011 and effective 

June 11, 2016 pursuant to a wage-earning capacity determination. Appellant received SSA agerelated retirement benefits beginning January 2017. The information provided by SSA established 

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

service commencing January 1, 2017. Thus, the record establishes that he received an 

overpayment of FECA wage-loss compensation.12

 

7 5 U.S.C. § 8102(a).

8

Id. at § 8116.

9 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

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

11 20 C.F.R. § 10.421(d); supra note 6; L.D., Docket No. 19-0606 (issued November 21, 2019); A.C., Docket No. 

18-1550 (issued February 21, 2019); S.M., supra note 9. 

12 Id.
5

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 appellant’s specific SSA age-related retirement benefits 

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

specific periods January 1, 2017 through August 15, 2020. OWCP provided its calculations for 

each relevant period based on SSA’s worksheet and determined that appellant received an 

overpayment in the amount of $35,131.35. The Board has reviewed OWCP’s calculations and 

finds that it properly determined that appellant received prohibited dual benefits totaling 

$35,131.35 for the period January 1, 2017 through August 15, 2020.

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.13

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.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 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.15 However, appellant had the responsibility to provide financial information to 

OWCP,16 but failed to do so.

In its preliminary determination, dated September 3, 2020, OWCP requested that appellant 

provide a completed Form OWCP-20 and 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. It advised him that it would deny waiver of recovery if 

he failed to furnish the requested financial information within 30 days. Appellant did not provide 

the requested Form OWCP-20 or submit any financial information necessary for OWCP to 

 

13 5 U.S.C. § 8129.

14 20 C.F.R. § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

15 Id. at § 10.436.

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

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, OWCP properly denied waiver of 

recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations 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 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.17

ANALYSIS -- ISSUE 3

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

$236.58 from appellant’s continuing compensation payments every 28 days.

OWCP provided appellant a Form OWCP-20 with its September 3, 2020 preliminary 

determination. It afforded him the opportunity to provide appropriate financial information and 

documentation to OWCP. Appellant did not complete the Form OWCP-20 or provide the 

necessary financial information to support his income and expenses prior to the final October 21, 

2020 overpayment decision. The overpaid individual is responsible for providing information 

about income, expenses, and assets as specified 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 there is no evidence of record to 

establish that OWCP erred in directing recovery of the $35,131.35 overpayment at the rate of 

$236.58 every 28 days from appellant’s continuing compensation payments.20

CONCLUSION

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

of compensation in the amount of $35,131.35 for which he was without fault, for the period 

 

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

1062 (1988).

18 Id. at § 10.438(a).

19 See J.A., Docket No. 19-1946 (issued July 13, 2020); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) 

Procedure Manual, Part 6 -- Debt Liquidation, Responsibility for the Collection and Settlement of Debts, Chapter 

6.300.2 (September 2020). Id. at § 10.436; 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).
7

January 1, 2017 through August 15, 2020, because he concurrently received FECA wage-loss 

compensation benefits 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 $236.58 from his continuing 

compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the October 21, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 7, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board