United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

City of Industry, CA, Employer

__________________________________________

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Docket No. 21-1000

Issued: March 25, 2022

Appearances: Case Submitted on the Record

Manuel B. Madrid, 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 21, 2021 appellant, through counsel, filed a timely appeal from an April 29, 2021 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of his oral argument request, appellant asserted that oral argument should be granted because it would provide 

an opportunity to further explain his need for waiver of the overpayment. The Board, in exercising its discretion, 

denies appellant’s request for oral argument because arguments on appeal can be adequately addressed in a decision 

based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision 

and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case 

record as submitted to the Board.
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider the merits of the case.4

ISSUES

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

of compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18, 

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

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

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

and (3) whether OWCP properly found that appellant abandoned his request for a prerecoupment 

hearing.

FACTUAL HISTORY

On December 7, 2017 appellant, then a 64-year-old maintenance mechanic, filed an 

occupational disease claim (Form CA-2) alleging that he developed bilateral shoulder conditions 

due to factors of his federal employment, including heavy lifting, and repetitive reaching and 

pulling. He did not stop work. On May 10, 2019 OWCP accepted the claim for bilateral complete 

rotator cuff tears or ruptures of the shoulders, calcific tendinitis of the right shoulder, and 

impingement syndrome of the left shoulder.

On October 24, 2019 appellant filed a claim for compensation (Form CA-7) for disability

beginning October 28, 2019. He noted that he had applied for SSA age-related retirement benefits 

at age 66 and received SSA benefits beginning on January 1, 2019 in the amount of $2,388.00 a 

month. Appellant indicated that he was covered by the Federal Employees Retirement Sy stem

(FERS).

On October 28, 2019 appellant underwent a right shoulder arthroscopic rotator cuff repair, 

biceps tenodesis, subacromial decompression, and extensive glenohumeral debridement.

On November 5, 2019 OWCP authorized wage-loss compensation on the supplemental 

rolls effective October 28, 2019. It authorized wage-loss compensation on the periodic rolls 

effective January 4, 2020.

On November 5, 2019 OWCP forwarded a FERS/SSA dual benefits calculation worksheet 

to SSA. On February 19, 2020 the SSA provided OWCP with a February 14, 2020 FERS/SSA 

dual benefit calculation form. The form indicated that appellant became entitled to retirement 

benefits, effective November 2018, and that there were no federal earnings to offset.

3

5 U.S.C. § 8101 et seq.

4 The Board notes that,following the April29, 2021 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.
3

In a March 3, 2020 letter, OWCP informed SSA that it was aware that appellant was 

entitled to retirement benefits effective November 2018. It further noted that he was receiving 

SSA retirement benefits and that he was covered under FERS. OWCP requested additional 

confirmation from SSA that there was no offset necessary.

On July 20, 2020 OWCP received a completed FERS/SSA dual benefit calculation form

from SSA, which reported that appellant had been in receipt of SSA age-related retirement benefits 

since November 2018. SSA reported that: beginning November 2018, appellant’s monthly SSA 

rate with FERS was $2,285.90 and without FERS was $1,129.80; beginning December 2018, 

appellant’s monthly SSA rate with FERS was $2,349.80 and without FERS was $1,161.40; 

beginning January 2019, appellant’s monthly SSA rate with FERS was $2,355.00 and without 

FERS was $1,161.40; and beginning December 2019, appellant’s monthly SSA rate with FERS 

was $2,392.70 and without FERS was $1,179.90.

OWCP completed a FERS offset calculation form on August 12, 2020. It calculated the 

amount that it should have offset from appellant’s wage-loss compensation from October 28, 2019 

through July 18, 2020. OWCP found that for the period October 28 through November 30, 2019, 

the daily offset was $39.35 or $1,337.88 for 34 days, and for the period December 1, 2019 through 

July 18, 2020, the daily offset was $39.98, or $9,235.94 for 231 days. It added the amounts for 

each period and determined that it should have offset a total of $10,573.81 from his wage-loss 

compensation.

In an August 12, 2020 letter, OWCP informed appellant that it would begin deducting 

$1,119.51, the portion of SSA age-related retirement benefits attributable to his federal service, 

from his periodic compensation benefits.

On August 13, 2020 OWCP notified appellant of its preliminary overpayment 

determination that he had received an overpayment of compensation in the amount of $10,573.82

because it had failed to reduce his wage-loss compensation benefits for the period October 28,

2019 through July 18, 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 provided appellant with an overpayment 

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

it notified him 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.5

On September 11, 2020 appellant requested a prerecoupment hearing and completed an 

overpayment action request form requesting waiver of recovery of the overpayment. He advised 

that he had used the compensation on necessary expenditures that he would otherwise not have 

been able to afford and could not repay the overpayment without financial hardship. On the Form 

OWCP-20 appellant listed total monthly income of $7,497.00 and total monthly expenses of 

$6,444.00. He listed real estate assets of $80,000.00 and $90,000.00, with mortgage balances of 

$48,700.00 and $53,700.00, respectively, as well as a vacant lot worth $3,000.00. Appellant listed 

5 By decision dated September 14, 2020, OWCP affirmed the August13, 2020 preliminary overpayment findings.

On January 25, 2021 OWCP vacated a September 14, 2020 decision finalizing the preliminary overpayment 

determination.
4

other assets totaling $5,200.00 including $500.00 in cash, $1,200.00 in checking, $500.00 in 

savings, and stocks and bonds worth $3,000.00.

On March 5, 2021 OWCP’s hearing representative informed appellant of the time and 

location of his prerecoupment hearing scheduled for April 15, 2021 at 2:45 p.m.Eastern Standard 

Time (EST) regarding OWCP’s August 13, 2020 preliminary finding of the overpayment. It 

mailed the notice to appellant’s last known address of record and provided instructions on how to 

participate. Appellant did not appear at the hearing or request postponement of the hearing.

By decision dated April 29, 2021, OWCP’s hearing representative, after conducting a 

review of the written record, found that appellant failed to attend the scheduled hearing and failed 

to request postponement of the hearing. She, therefore, determined that appellant had abandoned 

his hearing request. OWCP’s hearing representative further finalized the preliminary overpayment 

determination, finding that appellant had received a $10,573.82 overpayment of compensation 

from October 28, 2019 through July 18, 2020 because he had concurrently received FECA wageloss compensation and SSA age-related retirement benefits without the appropriate offset. She 

also found that appellant was without fault in the creation of the overpayment, but denied waiver 

of recovery of the overpayment as appellant’s monthly income of $7,497.00 exceeded his monthly 

expenses of $6,444.14 by more than $50.00 and as he had assets of approximately $75,000.00 

exceeding the base of $10,300.00 for an individual with a spouse. OWCP’s hearing representative 

explained that, because he failed to meet both prongs of a two-prong test of whether recovery of 

the overpayment would defeat the purpose of FECA, it was not necessary to consider waiver of 

recovery on this basis. She further found appellant had not submitted evidence that he made any 

financial decision that changed his position for the worse as a result of the receipt of the overpaid 

benefits and, therefore, had not established that recovery of the debt would be against equity and 

good conscience.

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 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.8 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 

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M.,Docket No. 17-1802 (issued August20, 2018).
5

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 found that appellant received an overpayment of 

compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18, 2020 

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

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

Appellant began receiving SSA age-related retirement benefits in November 2018. OWCP 

paid appellant wage-loss compensation for total disability following his accepted employment 

injury beginning October 28, 2019. As noted, a claimant cannot receive FECA compensation for 

wage-loss and SSA age-related retirement benefits attributable to federal service for the same 

period.10 Accordingly, the Board finds that fact of overpayment has been established.11

To determine the amount of the overpayment, the portion of SSA age-related retirement 

benefits 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 the SSA rates with FERS and without FERS for 

specific periods from October 28, 2019 through July 18, 2020. OWCP set forth its calculations of 

the amount that should have been offset during the relevant period based on information provided 

by SSA for the period October 28, 2019 through July 18, 2020.

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

period October 28, 2019 through July 18, 2020 and finds that an overpayment of compensation in 

the amount of $10,573.82 was created.12

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA13 provides that an overpayment must be recovered 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. Thus, a 

finding that appellant was without fault does not automatically result in waiver of the overpayment. 

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

defeat the purpose of FECA or would be against equity and good conscience. 14

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

10 Supra note 8. See J.T., Docket No. 21-0010 (issued September 30, 2021); A.C., Docket No. 18-1550 (issued

February21, 2019).

11 See S.H.,Docket No. 20-1157 (issued December 23, 2020); K.H.,Docket No. 18-0171 (issued August 2, 2018).

12 See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L.,Docket No. 18-1103 (issued March 5, 2019).

13 Supra note 3.

14 J.T., supra note 10; G.L.,Docket No. 19-0297 (issued October 23, 2019).
6

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of 

FECA if recovery would cause hardship because the beneficiary needs substantially all of his or 

her 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.15

ANALYSIS -- ISSUE 2

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

As OWCP found appellant not at 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 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. OWCP found that, after its review 

of appellant’s financial documents of record, he had total current monthly income of $7,497.00 

and total monthly expenses of $6,444.14, which left more than $1,052.00 of disposable income 

with which to repay the debt. As appellant’s 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.

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. 17

LEGAL PRECEDENT -- ISSUE 3

A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request, 

to a hearing before an OWCP representative.18 Unless otherwise directed in writing by the 

claimant, the hearing representative will mail a notice of the time, place, and method of the oral 

15 20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her 

current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00. Its procedures further provide that 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 6.400.4a(2) and (3) (September 2018).

16 Id. at § 10.436.

17 Supra note 15. 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. A.S., Docket No. 20-1314 (issued February 23, 

2021); L.L.,Docket No. 19-0097 (issued March 20, 2020); A.B.,Docket No. 18-0915 (issued October 24, 2018). As 

appellant was not in receipt of continuing wage-loss compensation at the time of OWCP’s final overpayment 

determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case. See 

id.; Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.

18 Supra note 3 at § 8124(b).
7

hearing to the claimant and to any representative at least 30 days before the scheduled hearing 

date.19

A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned 

only under very limited circumstances.20 With respect to abandonment of hearing requests, 

Chapter 2.1601(g) of OWCP’s procedures21 and section 10.622(f) of its regulations22 provide in 

relevant part that failure of the claimant to appear at the scheduled hearing, failure to request a 

postponement, and failure to request in writing within 10 days after the date set for the hearing that 

another hearing be scheduled shall constitute abandonment of the request for a hearing. Under 

these circumstances, the Branch of Hearings and Review will issue a formal decision finding that 

the claimant has abandoned his or her request for a hearing and return the case to the district 

office.23

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly determined that appellant abandoned his request for 

a prerecoupment hearing.

OWCP’s Branch of Hearings and Review received appellant’s September 11, 2020 request 

for a telephonic prerecoupment hearing. In a March 5, 2021 letter, OWCP provided appellant 30 

days written notice of the hearing, which was scheduled for April 15, 2021 at 2:45 p.m. EST. It 

mailed the March 5, 2021 notice of hearing to appellant’s last known address of record, and it was 

not returned as undeliverable. Absent evidence to the contrary, a notice mailed in the ordinary 

course of business is presumed to have been received by the intended recipient.24 The presumption 

is commonly referred to as the “mailbox rule.”

25

 It arises when the record reflects that the notice 

was properly addressed and duly mailed.26 The current record is devoid of evidence to rebut the 

presumption that appellant received OWCP’s March 5, 2021 notice of hearing.

The hearing notice was properly addressed to appellant’s last known address of record.

27

 

Appellant did not call-in as instructed for the April 15, 2021 scheduled telephonic hearing and 

19 Supra note 8 at § 10.617(b).

20 R.L., Docket No. 20-0186 (issued September 14, 2020); C.Y.,Docket No. 18-0263 (issued September 14, 2018); 

Claudia J. Whitten, 52 ECAB 483 (2001).

21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.6(g) (October 2011).

22 Supra note 9 at § 10.622(f).

23 Id.

24 C.Y., supra note 20; KennethE. Harris, 54 ECAB 502(2003).

25 Id.

26 Id.

27 Id.; K.F., Docket No. 17-1035 (issued August 24, 2017).
8

there is no indication that he requested postponement of the telephonic hearing.28 Moreover, he 

did not submit a written request within the 10 days after the date set for the telephonic hearing and 

request that another telephonic hearing be scheduled. Under the circumstances, OWCP’s hearing 

representative properly found that appellant abandoned his telephonic hearing request. 29

CONCLUSION

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

$10,573.82 for the period October 28, 2019 through July 18, 2020 for which he was without fault, 

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

retirement benefits without appropriate offset. The Board further finds that OWCP properly 

denied waiver of recovery of the overpayment and that OWCP properly determined that appellant 

abandoned his request for a prerecoupment hearing.

ORDER

IT IS HEREBY ORDERED THAT the April 29, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 25, 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

28 20 C.F.R. § 10.622(c).

29 C.Y., supra note 20; M.V.,Docket No. 17-1795 (issued March 1, 2018).