United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

DEPARTMENT OF AGRICULTURE, PLANT 

PROTECTION & QUARANTINE, 

Los Angeles, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-1314

Issued: June 9, 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 August 30, 2021 appellant filed a timely appeal from a July 7, 2021 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 $9,671.96 for the periods October 1, 2012 through 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

August 31, 2015 and September 1, 2016 through November 9, 2019, 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; (2) whether 

OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly 

required recovery of the overpayment by deducting $471.16 from appellant’s continuing 

compensation payments every 28 days.

FACTUAL HISTORY

On September 26, 1996 appellant, then a 46-year-old office automation clerk, filed an 

occupational disease claim (Form CA-2) alleging that she developed an emotional condition due 

to factors of her federal employment. She stopped work in 1996. OWCP accepted the claim for 

depressive disorder and prolonged depressive reaction. The record reflects that OWCP paid 

appellant wage-loss compensation on the periodic rolls as of June 16, 2002.

On October 3, 2019 OWCP contacted SSA to obtain information regarding appellant’s 

potential receipt of dual benefits.

On October 28, 2019 OWCP received from SSA an October 27, 2019 completed Federal 

Employees Retirement System (FERS)/SSA dual benefits form which indicated that appellant had 

been in receipt of SSA age-related retirement benefits since October 2012. The form showed 

appellant’s SSA age-related retirement benefit rates with and without a FERS offset. Beginning

October 2012, the SSA rate with FERS was $651.30, and without FERS was $564.90; beginning

December 2012, the SSA rate with FERS was $662.30, and without FERS was $574.50; beginning 

December 2013, the SSA rate with FERS was $672.20, and without FERS was $583.10; beginning 

December 2014, the SSA rate with FERS was $683.60, and without FERS was $593.00; beginning 

September 2016, the SSA rate with FERS was $1,070.40, and without FERS was $903.90; 

beginning December 2016, the SSA rate with FERS was $1,073.90, and without FERS was 

$906.60; beginning December 2017, the SSA rate with FERS was $1,095.60, and without FERS 

was $924.70; and beginning December 2018, the SSA rate with FERS was $1,125.60, and without 

FERS was $950.50.

In a November 26, 2019 letter, OWCP advised appellant that she had been receiving dual 

FERS and SSA age-related retirement benefits without an appropriate offset. It further informed 

her that her FECA wage-loss compensation benefits must be adjusted based on the FERS portion 

of SSA age-related retirement benefits that were attributable to federal service. OWCP explained 

that appellant’s compensation payments would be offset by the portion of her SSA age-related 

retirement benefits attributable to her federal service,resulting in a new net compensation payment 

of $1,816.37, every 28 days.

In a FERS offset overpayment calculation worksheet dated May 17, 2021, OWCP found 

that appellant had received an overpayment in the amount of $10,765.13 during the period 

October 1, 2012 to November 9, 2019. It found that from October 1 to November 30, 2012 

appellant received an overpayment in the amount of $173.75; from December 1, 2012 to 

November 30, 2013 she received an overpayment in the amount of $1,056.49; from December 1, 

2013 to November 30, 2014 she received an overpayment in the amount of $1,072.14; from 

December 1, 2014 to August 31, 2016 she received an overpayment in the amount of $1,911.56;
3

from September 1 to November 30, 2016 she received an overpayment in the amount of $499.50;

from December 1, 2016 to November 30, 2017 she received an overpayment in the amount of

$2,009.51; from December 1, 2017 to November 30, 2018 she received an overpayment in the 

amount of $2,056.43; from December 1, 2018 to November 9, 2019 she received an overpayment 

in the amount of $1,985.75.

On May 17, 2021 OWCP issued a preliminary overpayment determination finding that 

appellant had received an overpayment of compensation in the amount of $10,765.13, for which 

she was without fault, because she concurrently received FECA wage-loss compensation and SSA 

age-related retirement benefits without an appropriate offset.

3

 It explained that it had calculated 

the overpayment of compensation by determining the difference between appellant’s SSA benefit 

rates with and without FERS for each period, and then multiplying that amount by the number of 

days in each period. OWCP also found that appellant was without fault in the creation of the 

overpayment. It requested that she complete an overpayment recovery questionnaire (Form 

OWCP-20) and submit supporting financial documentation to determine a reasonable repayment 

schedule and advised that she could request waiver of recovery. OWCP further requested that 

appellant provide supporting financial documentation, including copies of income tax returns, 

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

Additionally, it provided an overpayment action request form and notified appellant that within 30 

days of the date of the letter, she could request a final decision based on the written record, or a 

prerecoupment hearing.

On June 17, 2021 OWCP received a completed Form OWCP-20, wherein appellant

requested waiver of recovery of the overpayment. Appellant argued that she relied upon 

misinformation, that she could not have reasonably known that an improper payment occurred, 

and that it would be against equity and good conscience to require her to repay the overpayment. 

She listed monthly income of $999.00 in SSA benefits and $1,885.00 in other benefits, for total 

monthly income of $2,884.00.

4

 Appellant listed monthly expenses and debts being paid by 

monthly installments totaling $2,848.00. In response to the question regarding assets, she listed 

$10.00 cash on hand, a $100.00 checking account balance, and a $100.00 savings account balance, 

for a total of $250.00. Appellant submitted an SSA document and a checking account statement

dated May 31, 2021, but did not provide any other accompanying financial documentation.

OWCP revised the FERS offset overpayment calculation worksheet on July 7, 2021. It 

explained that appellant did not receive SSA age-related retirement benefits from September 1, 

2015 through August 31, 2016, and the preliminary overpayment determination incorrectly 

included this period. OWCP determined the overpayment amount by multiplying the daily FERS 

offset amount by the number of days in each period from October 1, 2012 through November 9, 

2019, which resulted in a total overpayment of $9,671.96. It determined that from October 1 

through November 30, 2012, appellant received an overpayment in the amount of $173.75; from 

3

In a letter dated April23, 2021, the employing establishment confirmed appellant’s retirement was covered under 

FERS.

4 The overpayment memorandum noted that appellant’s 28-day OWCP compensation amount of $1,884.65 x 13 

cycles per 12 months, resulted in monthly OWCP compensation of $2,041.70, plus the monthly SSA payment of 

$999.00, for total monthly income of $3,040.70.
4

December 1, 2012 through November 30, 2013, she received an overpayment in the amount of 

$1,056.49; from December 1, 2013 through November 30, 2014, she received an overpayment in 

the amount of $1,072.14; from September 1, 2015 through August 31, 2016, no overpayment (she 

did not receive SSA age-related retirement benefits); from September 1 through November 30, 

2016, she received an overpayment in the amount of $499.50; from December 1, 2016 through 

November 30, 2017, she received an overpayment in the amount of $2,009.51; from December 1, 

2017 through November 30, 2018, she received an overpayment in the amount of $2,056.43; and 

from December 1, 2018 through November 9, 2019, she received an overpayment in the amount 

of $1,985.75. OWCP added the overpayment amounts for each period and determined that it 

should have offset a total of $9,671.96 from appellant’s wage-loss compensation.

By decision dated July 7, 2021, OWCP finalized the preliminary overpayment 

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

of $9,671.96 for the periods October 1, 2012 through August 31, 2015 and September 1, 2016 

through November 9, 2019, because she concurrently received SSA age-related retirement benefits 

and FECA wage-loss compensation benefits without an appropriate offset. It explained that

appellant did not receive SSA age-related retirement benefits for the period September 1, 2015 to 

August 31, 2016, and the preliminary overpayment determination, should not have included an

offset amount of $1,093.17 for this period. After subtracting this amount from the $10,765.13

amount in the preliminary overpayment determination, it explained that the correct amount of the 

overpayment was $9,671.96. OWCP found that appellant was without fault in the creation of the 

overpayment, but denied waiver of recovery of the overpayment. It required recovery of the 

overpayment by deducting $471.16 every 28 days from his 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.5 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.6

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.7 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 

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. 8

ANALYSIS -- ISSUE 1

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August20, 2018); L.J., 59 ECAB 264 (2007).

8 FECA Bulletin No. 97-09 (issued February3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
5

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

of compensation in the amount of $9,671.96, for which she was without fault, because she 

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

the periods October 1, 2012 through August 31, 2015 and September 1, 2016 through 

November 9, 2019, without an appropriate offset.9

The evidence of record indicates that, while appellant was receiving compensation for 

wage-loss under FECA, she also was receiving SSA age-related retirement benefits based upon 

her federal service. A claimant cannot receive both compensation for wage-loss under FECA and 

SSA age-related retirement benefits attributable to federal service for the same period. 10 The 

information provided by SSA established that during the periods October 1, 2012 through 

August 31, 2015 and from September 1, 2016 through November 9, 2019, appellant received SSA 

age-related retirement benefits that were attributable to federal service, while she also received 

FECA benefits that were not reduced by an appropriate offset. Consequently, fact of overpayment 

has been established.

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 

October 1, 2012 through August 31, 2015 and from September 1, 2016 through November 9, 2019. 

OWCP provided its calculations for each relevant period based on the age-related retirement rates 

as reported by SSA which show that appellant received an overpayment in the amount of 

$9,671.96. The Board thus finds that appellant received prohibited dual benefits for the periods

October 1, 2012 through August 31, 2015 and September 1, 2016 through November 9, 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. 11 

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.12

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 

9 D.M., Docket No. 21-0230 (issued December 14, 2021); P.B., Docket No. 20-0862 (issued November 25, 2020); 

R.C., Docket No. 19-0845 (issued February 3, 2020); A.F., Docket No. 19-0054 (issued June 12, 2019).

10 20 C.F.R. § 10.421(d); see S.M., supra note 7; L.J., supra note 7.

11 5 U.S.C. § 8129(a)-(b).

12 L.S., 59 ECAB 350 (2008).
6

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.13 An individual is deemed to need 

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

if monthly income does not exceed monthly expenses by more than $50.00. 14

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.15 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.16

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. 17

While appellant submitted a completed Form OWCP-20 on June 17, 2021, and a bank 

checking statement dated May 31, 2021, she failed to furnish sufficient financial documentation 

to support her income and expenses. OWCP found that she did not provide all of the requested 

information regarding income, expenses, debts, and assets necessary to determine whether

recovery of the overpayment would defeat the purpose of FECA or be against equity and good 

conscience.

13 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 6.400.4a (3) (September 2020).

14 Federal (FECA) Procedure Manual, id. at Chapter 6.400.4a(3) (September 2020).

15 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

16 Federal (FECA)Procedure Manual, supranote 13at Chapter 6.400.4c(3) (September 2020).

17 20 C.F.R. § 10.436.
7

The Board finds that OWCP properly found that absent complete documentation of 

appellant’s expenses and assets the evidence was insufficient to establish that recovery of the 

overpayment would defeat the purposes of FECA or be against equity and good conscience. 18

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. 19

Section 10.441(a) of OWCP’s regulations20 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.”

21

ANALYSIS -- ISSUE 3

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

$471.16 every 28 days from appellant’s continuing compensation payments.

OWCP gave due regard to the information submitted, as well as the factors set forth in 

20 C.F.R. § 10.441, and found that this method of recovery would minimize resulting hardship. 22 

The Board, therefore, finds that OWCP properly required recovery of the overpayment from 

appellant’s continuing compensation payments at the rate of $471.16 every 28 days.

CONCLUSION

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

of compensation in the amount of $9,671.96 for the periods October 1, 2012 through August 31, 

2015 and September 1, 2016 through November 9, 2019, for which she was without fault, because 

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

without an appropriate offset. The Board also finds that OWCP properly denied waiver of recovery 

18 J.W., Docket No. 20-0857 (issued March 24, 2021).

19 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

20 Id. at § 10.441(a).

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

22 J.R., Docket No. 21-0485 (issued December 10, 2021); M.B., Docket No. 20-1578 (issued March 25, 2021).
8

of the overpayment and properly required recovery of the overpayment by deducting $471.16 from 

her continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the July 7, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 9, 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