United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.W., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, TRACY DEPOT, 

Tracy, CA, Employer

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Docket No. 22-0791

Issued: November 10, 2022

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, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 25, 2022 appellant filed a timely appeal from a December 8, 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 to 

consider 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 $5,055.63 for the period August 1, 2020 through 

1

5 U.S.C. § 8101 et seq. 

2 The Board notes that, following the December 8, 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

January 30, 2021 for which he was without fault, because he concurrently received FECA wageloss 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 

$318.62 every 28 days from his continuing compensation payments.

FACTUAL HISTORY

On May 28, 1994 appellant, then a 39-year-old materials handler, filed an occupational 

disease claim (Form CA-2) alleging that he contracted coccidiomycosis (Valley Fever) due to 

factors of his federal employment. He noted that he first became aware of his condition and 

realized its relation to his federal employment on May 23, 1994. After a period of intermittent 

absences, appellant stopped work on May 23, 1994 and did not return. OWCP accepted the claim 

for coccidiomycosis of the lungs, skin, cervical spine, and skull. It paid appellant wage-loss 

compensation on the supplemental rolls, effective May 23, 1994, and on the periodic rolls,

commencing March 3, 1996.

On December 10, 2020 OWCP provided SSA a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form. It listed the computation period as August 1, 2020

and continuing.

On February 5, 2021 OWCP received from SSA a completed FERS/SSA dual benefits 

form, wherein SSA calculated appellant’s SSA age-related retirement benefit rates with a FERS 

offset and without a FERS offset. Beginning August 1, 2020, the SSA rate with FERS was 

$1,344.80and without FERS was $510.40. Beginning December 1, 2020, the SSA rate with FERS 

was $1,362.20 and without FERS was $517.00.

In a FERS offset overpayment calculation worksheet dated February 23, 2021, OWCP used 

the information provided by SSA to calculate a total overpayment in the amount of $5,055.63. It

determined that, for the period August 1 through November 30, 2020, appellant received an 

overpayment in the amount of $3,355.94; and for the period December 1, 2020 through January 30, 

2021, appellant received an overpayment in the amount of $1,699.69.

In a letter dated February 23, 2021, OWCP advised appellant that he had been receiving a 

prohibited dual benefit. It noted that SSA had confirmed that a portion of his SSA age-related 

retirement benefits were attributed to his years of federal service as an employee under the FERS 

retirement program and that portion required an offset of his FECA compensation benefits, in the 

amount of $780.18 every 28 days. OWCP indicated that, to account for his SSA offset, appellant’s 

FECA wage-loss compensation would be adjusted to reflect a new net compensation amount of 

$1,239.48 effective January 31, 2021.

In a preliminary overpayment determination dated March 5, 2021, OWCP notified 

appellant of its preliminary finding that he received an overpayment of compensation in the 

amount of $5,055.63 for the period August 1, 2020 through January 30, 2021 because he 

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

without an appropriate offset. It determined that he was without fault in the creation of the 

overpayment. OWCP requested that appellant submit a completed overpayment recovery 
3

questionnaire (Form OWCP-20), along with supporting financial documentation, including copies 

of income tax returns, bank account statements, bills, pay slips, and any other records to support

his reported income, assets, and expenses. It advised him that it would deny waiver if he failed to 

furnish the requested financial information within 30 days. OWCP provided an appeal request 

form and further notified appellant that, within 30 days of the date of the letter, he could contest 

the overpayment and request a final decision based on the written evidence, or a prerecoupment 

hearing. No response was received. 

By decision dated December 8, 2021, OWCP finalized the preliminary overpayment

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

$5,055.63 for the period August 1, 2020 through January 30, 2021 because he concurrently 

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

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

but denied waiver of recovery of the overpayment, because he had not respondedto the preliminary

overpayment determination. OWCP required recovery of the overpayment by deducting $318.62 

from appellant’s continuing compensation payments every 28 days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.3 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.4

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

amount of compensation by the amount of SSA age-related benefits that are attributable to federal 

service of the employee.5 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.6 

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $5,055.63 for the period August 1, 2020 through January 30, 

 

3

5 U.S.C. § 8102(a).

 

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); D.L., Docket No. 20-0716 (issued June 1, 2022); E.R., Docket No. 21-0133 (issued 

November 15, 2021); M.R., Docket No. 20-1622 (issued June 30, 2021); S.S., Docket No. 19-1945 (issued March 25, 

2021); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

6 FECA Bulletin No. 97-09 (issued February3, 1997).
4

2021, as he concurrently received FECA wage-loss compensation and SSA age-related retirement 

benefits without an appropriate offset.

OWCP paid appellant wage-loss compensation for total disability from work due to his 

accepted injury beginning May 23, 1994. Appellant received SSA age-related retirement benefits 

beginning August 1, 2020. A claimant cannot concurrently receive FECA wage-loss 

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

period.7 The information provided by SSA established that appellant concurrently received SSA 

age-related retirement benefits that were attributable to his federal service. Accordingly, the fact 

of overpayment has been established.

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

benefits attributable to federal service must be calculated. OWCP received a dual benefits form 

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 the specific 

period August 1, 2020 through January 30, 2021. OWCP provided its calculation for each relevant 

period based on SSA’s dual benefits form and determined that appellant received an overpayment 

of compensation in the amount of $5,055.63. 

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

period August 1, 2020 through January 30, 2021 and finds that appellant received an overpayment

of compensation in the amount of $5,055.63.

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.”

8

 Section 10.438 of OWCP 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. 

Failure to submit the requested information within 30 days of the request shall result in denial of 

waiver.9

ANALYSIS -- ISSUE 2

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

7

See supra note 6; M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., Docket No. 18-0795 

(issued January 4, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).

8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.438.
5

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

and failed to do so.

In its preliminary overpayment determination, dated March 5, 2021, 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 that it would deny waiver of recovery 

if he failed to furnish the requested financial information within 30 days. Appellant, however, did 

not provide the requested Form OWCP-20 or otherwise submit the financial information necessary 

for OWCP to determine if recovery of the overpayment would defeat the purpose of FECA or be 

against equity and good conscience.

Accordingly, the Board finds that OWCP properly denied 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. 10

Section 10.441 of OWCP’s regulations provides that, when an overpayment of 

compensation 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 hardship.11

ANALYSIS -- ISSUE 3

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

$318.62 from appellant’s continuing compensation every 28 days.

The record supports that, in requiring repayment of the overpayment by deducting $318.62 

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

appellant had not submitted the requested financial information as well as the other factors set 

forth in 20 C.F.R. § 10.441 and found that this method of recovery would minimize resulting 

10 20 C.F.R. § 10.441;see M.P.,Docket No. 18-0902 (issued October 16, 2018).

11 Id.
6

hardship. Therefore, OWCP properly required recovery of the overpayment by deducting $318.62

from appellant’s continuing compensation every 28 days.12

CONCLUSION

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

$5,055.63 for the period August 1, 2020 through January 30, 2021, for which he was without fault, 

as 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 required recovery of the overpayment by 

deducting $318.62 from his continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the December 8, 2021 decision of the Office of 

Workers’ Compensation is affirmed.

Issued: November 10, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

12 See D.L., supra note 6; J.R., Docket No. 17-0181 (issued August 12, 2020); L.G., Docket No. 19-1274 (issued 

July 10, 2020).