United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.M., Appellant

and

U.S. POSTAL SERVICE, GATLINBURG POST 

OFFICE, Gatlinburg, TN, Employer

__________________________________________

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Docket No. 21-0946

Issued: February 11, 2022

Appearances: Case Submitted on the Record

T. Scott Jones, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 4, 2021 appellant, through counsel, filed a timely appeal from a May 21, 2021 

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 over 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 May 21, 2021 decision, appellant submitted additional evidence to OWCP.

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

ISSUE

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

overpayment of compensation in the amount of $32,318.44, for which he was without fault, for 

the period December 1, 2014 through March 28, 2020, 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 

$563.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

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

follows. 

On July 26, 1991 appellant, then a 42-year-old rural mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained “mental and emotional stress and conflict”

due to factors of his federal employment. He stopped work on February 15, 1991. OWCP 

accepted appellant’s claim for conversion disorder and single episode of major depression. It paid 

him wage-loss compensation on the periodic rolls, effective December 11, 1994. 

On March 6, 2020 SSA submitted a completed Federal Employees Retirement System 

(FERS)/SSA dual benefits form to OWCP. The form listed appellant’s monthly SSA age-related 

retirement benefit rates beginning December 2014 with and without appellant’s FERS 

contributions. The form reported that: beginning December 2014, his SSA rate with FERS was 

$1,208.90 and without FERS was $713.90; beginning December 2016, his SSA rate with FERS 

was $1,212.00 and without FERS was $716.00; beginning December 2017, his SSA rate with 

FERS was $1,237.00 and without FERS was $731.00; beginning December 2018, his SSA rate 

with FERS was $1,271.50 and without FERS was $751.50; and beginning December 2019, his 

SSA rate with FERS was $1,291.60 and without FERS was $762.60. 

Effective March 29, 2020, OWCP adjusted appellant’s compensation amount to include 

the offset of his SSA age-related retirement benefits attributable to his federal service. 

On April 8, 2020 OWCP notified appellant of its preliminary overpayment determination 

that he had received an overpayment of compensation in the amount of $32,335.88 because it had 

failed to reduce his wage-loss compensation benefits for the period December 1, 2014 through 

March 29, 2020 by the portion of his SSA age-related retirement benefits that were attributable to 

federal service. It further advised him of its preliminary determination that he was without fault 

in the creation of the overpayment. OWCP also provided a FERS offset calculation worksheet. 

On May 6, 2020 appellant requested a prerecoupment hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

4 Docket No. 20-1332 (issued February19, 2021).
3

By decision dated May 20, 2020, OWCP finalized the April 8, 2020 preliminary

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

in the amount of $32,335.88 for the period December 1, 2014 through March 29, 2020 because he 

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

without appropriate offset. It found that he was without fault in the creation of the overpayment, 

but denied waiver of recovery of the overpayment. OWCP required recovery of the overpayment 

by deducting $563.00 from appellant’s continuing compensation payments every 28 days. 

Appellant, through counsel, appealed to the Board. By decision dated February 19, 2021,

5

the Board affirmed the May 20, 2020 overpayment decision in part, and set it aside, in part. The 

Board affirmed the fact and period of overpayment, finding that appellant had received an 

overpayment of compensation, for the period December 1, 2014 through March 28, 2020, because 

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

without an appropriate offset. The Board further found, however, that OWCP had incorrectly 

calculated the amount of overpayment because the evidence of record established that appellant

was no longer receiving dual benefits as of March 29, 2020. The Board remanded the case for 

recalculation of the amount of overpayment, followed by a de novo decision. 

OWCP subsequently completed a FERS offset overpayment calculation worksheet on 

March 30, 2021. This form indicated that: from December 1, 2014 through November 30, 2016, 

appellant received an overpayment in the amount of $11,929.96; from December 1, 2016 through 

November 30, 2017, appellant received an overpayment in the amount of $5,968.35; from 

December 1, 2017 through November 30, 2018, appellant received an overpayment in the amount 

$6,088.68; from December 1, 2018 through November 30, 2019, appellant received an 

overpayment in the amount of $6,257.14; and from December 1, 2019 through March 28, 2020, 

appellant received an overpayment in the amount of $2,075.31. Based on these figures, OWCP 

calculated the total overpayment amount of $32,318.44. 

On March 30, 2021 OWCP issued a de novo preliminary overpayment determination, 

finding that appellant had received an overpayment of compensation in the amount of $32,318.44

because it had failed to reduce his wage-loss compensation benefits for the period December 1, 

2014 through March 28, 2020, by the portion of his SSA age-related retirement benefits that were 

attributable to his federal service. It further advised him of its preliminary determination that he 

was without fault in the creation of the overpayment. OWCP requested that appellant submit an 

updated overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable 

payment method and advised him that he could request a waiver of the overpayment. It further 

requested that he provide supporting financial documentation, including copies of income tax 

returns, bank account statements, bills, pay slips, and any other records to support his reported 

income and expenses. Additionally, OWCP provided an overpayment action request form and 

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 April 14, 2021 appellant completed an overpayment action request form and requested 

that OWCP issue a decision based on the written evidence. He noted his disagreement that the 

overpayment occurred and requested a waiver of recovery of the overpayment. 

5

Id.
4

Appellant completed a Form OWCP-20 on April 14, 2021. He listed his monthly income 

as $816.00 in SSA benefits and $1,919.42 in “other” benefits for a total monthly income of 

$2,735.42. Appellant noted that his monthly expenses included housing of $63.00, food of 

$400.00, clothing of $150.00, utilities of $575.00, and other expenses of $600.00. He provided a 

list of other debts paid by monthly installments of $397.00, $341.00, and $300.00 for total monthly 

expenses of $2,826.00. Appellant indicated that he had a checking account balance of $4,033.00 

and other personal property valued at $50,000.00, for a total of $54,033.00. 

By decision dated May 21, 2021, OWCP finalized its preliminary overpayment 

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

of $32,318.44, for the period December 1, 2014 through March 28, 2020, because he concurrently 

received SSA age-related retirement benefits and FECA wage-loss compensation without 

appropriate offset. It also found that he was without fault in the creation of the overpayment, but 

denied waiver of recovery of the overpayment. While appellant reported on the Form OWCP-20 

dated April 14, 2021 that he had total monthly income of $2,735.00, OWCP determined that he 

received $2,530.42 in FECA benefits and $816.00 in SSA benefits, for a total monthly income of 

$3,346.42. OWCP determined that recovery of the overpayment would require deducting $563.00

every 28 days from appellant’s continuing compensation payments. 

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.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 OWCP’s implementing regulations requires that OWCP reduce the 

amount of compensation by the amount of any SSA age-related retirement benefits that are 

attributable to the employee’s federal service.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 properly determined that appellant received an overpayment 

of compensation in the amount of $32,318.44 for the period December 1, 2014 through March 28, 

2020, for which he was without fault, because he concurrently received FECA wage -loss 

compensation benefits and SSA age-related retirement benefits without an 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); L.J., 59 ECAB 264 (2007).

9 FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
5

The Board preliminarily notes that it found in its February 19, 2021 decision that appellant 

received an overpayment of compensation for the period December 1, 2014 through March 28, 

2020, for which he was without fault. Findings made in prior Board decisions are res judicata

absent further review by OWCP under section 8128 of FECA. 10 Therefore, the Board’s prior 

finding regarding the fact and period of the overpayment is not subject to further consideration.

On remand, by de novo decision dated May 21, 2021, OWCP found that appellant received 

an overpayment of compensation in the amount of $32,318.44. To determine the amount of the 

overpayment, the portion of SSA’s benefits that were attributable to federal service must be 

calculated. OWCP received documentation from SSA with respect to the specific amount of SSA 

age-related retirement benefits that were attributable to federal service. SSA provided its rate with 

FERS and without FERS for specific periods from December 1, 2014 through March 28, 2020. 

OWCP provided its calculations of the amount that should have been offset for each relevant 

period based on the information provided by SSA’s dual benefits form and determined that

appellant received an overpayment in the amount of $32,318.44. 

The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the 

period December 1, 2014 through March 28, 2020 and finds that an overpayment of $32,318.44

was created.

11

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 

Thus, a finding that appellant was without fault does not automatically result in waiver of the 

overpayment. OWCP must then exercise its discretion to determine whether recovery of the 

overpayment would defeat the purpose of FECA or would be against equity and good conscience. 13 

Section 10.436 of OWCP’s implementing regulations provides that 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 

from data provided by the Bureau of Labor Statistics.14 An individual is deemed to need 

10 T.C., Docket No. 21-0612 (issued December 2, 2021); T.W., Docket No. 20-0836 (issued July 21, 2021);

Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998). See also 20 C.F.R. § 501.6(d). 

11 J.T., Docket No. 21-0010 (issued September 30, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

12 5 U.S.C. § 8129.

13 A.C., Docket No. 18-1550 (issued February 21, 2019); L.S., 59 ECAB 350 (2008).

14 20 C.F.R. § 10.436. OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00 

for an individual or $10,300.00 for an individual with a spouse or 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) (September 2020).
6

substantially all of his or her current income to meet current ordinary and necessary living expenses 

if monthly income does not exceed monthly expenses by more than $50.00.15 

Section 10.437 of OWCP’s implementing regulations provides that 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 attempting to repay the debt

and when an individual, in reliance on such payments or on notice that such payments would be 

made, gives up a valuable right or changes his or her position for the worse. 16 OWCP’s procedures 

provide that, to establish that a valuable right has been relinquished, an individual must 

demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and 

that his or her action was based primarily or solely on reliance on the payment(s) or on the notice 

of payment.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 his 

financial information to determine if recovery of the overpayment would defeat the purpose of 

FECA.

The Board finds that OWCP properly determined that appellant did not require 

substantially all of his income to meet ordinary living expenses. The evidence of record 

demonstrated that he had total current monthly income of $816.00 in SSA benefits and $2,530.42 

in FECA benefits for a total monthly income of $3,346.42. Based on the financial information 

that appellant had provided, he had total monthly expenses of $2,826.00. As his monthly income 

exceeds his ordinary and necessary living expenses by more than $50.00, the Board finds that he 

did not need substantially all of his income for ordinary and necessary living expenses. 19

On appeal, counsel argues that the reported $816.00 in SSA income are for appellant’s 

wife, not himself. Counsel has not, however, provided any evidence to support appellant’s

contention. Accordingly, the Board finds that appellant’s monthly income exceeds his total 

monthly expenses by more than $50.00. 

15 Id. at Chapter 6.400.4(a)(3) (September 2020). 

16 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

17 Supra note 14at Chapter 6.400.4(c)(3) (September 2020).

18 Supra note 11.

19 See V.G., Docket No. 20-1520 (issued September 21, 2021); see also M.C., Docket No. 19-0699 (issued 

February12, 2020).
7

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.

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. 20

Section 10.441(a) of OWCP’s regulations21 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.”

22

ANALYSIS -- ISSUE 3

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

$563.00 every 28 days from appellant’s continuing compensation payments.

The record supports that, in requiring repayment of the overpayment by deducting $563.00 

from appellant’s compensation payments every 28 days, OWCP took into consideration the 

financial information he submitted as well as the f actors 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 $563.00 from his continuing compensation 

every 28 days.23

CONCLUSION

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

$32,318.44, for the period December 1, 2014 through March 28, 2020, for which he was without 

fault, as he concurrently received SSA age-related retirement benefits and FECA wage-loss 

compensation 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 $563.00 every 28 days from his continuing compensation payments.

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

21 Id. at § 10.441(a).

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

23 See J.R., Docket No. 17-181 (issued August12, 2020); L.G., Docket No. 19-1274 (issued July 10, 2020).
8

ORDER

IT IS HEREBY ORDERED THAT the May 21, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 11, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board