United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JESSE BROWN VETERANS AFFAIRS 

MEDICAL CENTER, Chicago, IL, Employer

__________________________________________

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Docket No. 22-0540

Issued: July 20, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 1, 2022 appellant, through counsel, filed a timely appeal from an October 13, 

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 October 13, 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.
2

ISSUES

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

overpayment of compensation in the amount of $32,343.18 for the period January 1, 2019 through 

November 7, 2020 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; and (2) whether OWCP properly denied waiver of recovery 

of the overpayment.

FACTUAL HISTORY

On June 16, 2014 appellant, then a 58-year-old medical support assistant, filed an 

occupational disease claim (Form CA-2) alleging that she sustained low back strain, pelvic pain, 

and leg pain causally related to factors of her federal employment. OWCP accepted the claim for 

neck sprain. It subsequently expanded the acceptance of appellant’s claim to include lumbar 

sprain, an aggravation of degenerative lumbar spondylolisthesis, and an aggravation of 

degeneration of the lumbar or lumbosacral intervertebral disc at L4-5. OWCP paid appellant 

wage-loss compensation on the supplemental rolls, effective August 10, 2014, and on the periodic 

rolls, effective September 16, 2018. The employing establishment noted Federal Employees 

Retirement System (FERS) as appellant’s retirement system.

On November 13, 2019 OWCP sent a FERS/SSA dual benefits form to SSA for 

completion. 

On December 18, 2019 SSA completed the FERS/SSA dual benefits form and reported 

appellant’s monthly benefits with and without FERS from January to December 2019. SSA 

indicated that, effective January 2019, appellant’s SSA rate with FERS was $1,674.30and without 

FERS was $236.80 and, effective December 2019, her rate with FERS was $1,701.00 and without 

FERS was $240.50.

On November 8, 2020 appellant elected to receive retirement benefits under FERS,

effective November 8, 2020, in lieu of workers’ compensation benefits under FECA. 

In a FERS offset overpayment calculation form completed March 4, 2021, OWCP 

calculated the amount that it should have offset from appellant’s compensation for each period 

January 1, 2010 through November 7, 2020. It found that, from January 1 through November 30, 

2019, she received an overpayment of $15,828.30 and from December 1, 2010 through 

November 7, 2020, she received an overpayment of $16,514.88. Based on these figures, OWCP 

calculated that appellant received a total overpayment of $32,343.18.

In a preliminary overpayment determination dated March 4, 2021, OWCP notified 

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

amount of $32,343.18 for the period January 1, 2019 through November 7, 2020 because she 

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

without an appropriate offset. It further advised her of its preliminary determination that she 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 her that she could request waiver of recovery of the overpayment. It 

further requested that she provide supporting financial documentation, including copies of income 

tax returns, bank account statements, bills and canceled checks, pay slips, and any other records 
3

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

form and notified appellant that, within 30 days of the date of the letter, she could request a 

telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.

In a March 12, 2021 overpayment action request form, appellant requested a 

prerecoupment hearing before a representative of OWCP’s Branch of Hearings and Review. In an 

OWCP-20 form dated March 28, 2021, she indicated that she had monthly income of $2,623.04 

and monthly expenses of $2,578.66. Appellant further listed assets of $114,307.28, including 

$105,341.85 in a savings account.

A telephonic hearing was held on July 29, 2021. Appellant testified that she had not 

changed her position in reliance on the overpaid amount. She advised that she could repay $200.00 

per month as recovery of the overpayment. OWCP’s hearing representative noted that appellant 

had not submitted supporting financial documentation and advised that she could submit such 

evidence within 30 days.

By decision dated October 13, 2021, OWCP’s hearing representative finalized the 

preliminary determination that appellant received an overpayment of compensation in the amount 

of $32,343.18 for the period January 1, 2019 through November 7, 2020 because she concurrently 

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

appropriate offset.4 She found that appellant was without fault in the creation over the 

overpayment, but denied waiver of recovery of the overpayment. The hearing representative 

required recovery of the overpayment by submitting payments in the amount of $200.00 per 

month. 

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 OWCP to reduce the 

amount of compensation by the amount of any SSA age-related 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 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.8

4 OWCP’s hearing representative indicated that the overpayment was for $32,343.13; however, this appears to be 

a typographical error as the record supports that the overpayment totaled $32,343.18.

5

5 U.S.C. § 8102

6

Id. at § 8116.

7

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

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

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $32,343.18 for the period January 1, 2019 through November 7, 

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

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

OWCP paid appellant wage-loss compensation for total disability on the periodic rolls 

beginning September 16, 2018. Appellantreceived SSA age-related retirement benefits beginning 

January 1, 2019. As noted, a claimant cannot concurrently receive FECA compensation for wageloss and SSA age-related retirement benefits attributable to federal service.9

 The information 

provided by SSA indicated that a portion of appellant’s SSA age-related retirement benefits were 

attributable to her federal service. Accordingly, the Board finds that fact of overpayment has been 

established.10 

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 appellant’s SSA age-related retirement benefit rates 

with FERS and without FERS from January to December 2019. OWCP provided its calculations 

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

overpayment of compensation in the amount of $32,343.18. The Board has reviewed OWCP’s 

calculation of dual benefits received by her for the period January 1, 2019 through November 7, 

2020 and finds that an overpayment of compensation in the amount of $32,343.18 was created.11

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA12 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. 13

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.14 An individual’s liquid assets 

9

Id. See F.K., Docket No. 20-1609 (issued June24, 2021); A.C., Docket No. 18-1550 (issued February 21, 2019).

10 See L.K., Docket No. 20-1574 (issued June23, 2021); S.H., Docket No. 20-1157 (issued December 23, 2020).

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

12 Supra note 2.

13 G.L., Docket No. 19-0297 (issued October 23, 2019).

14 20 C.F.R. § 10.436. OWCP procedures provide that a claimant is deemed to need substantially all his or her 

current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly 
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include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual 

funds, and certificates of deposits. Nonliquid assets include, but are not limited to, the fair market 

value of an owner’s equity in property such as a camper, boat, second home, furnishings/supplies, 

vehicle(s) above the two allowed per immediate family, retirement account balances (such as 

Thrift Savings Plan or 401(k)), jewelry, and artwork.15

Section 10.437 provides that recovery of an overpayment is 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

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 In order to establish 

that recovery of the overpayment would defeat the purpose of FECA, appellant must show that she 

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

that her assets do not exceed the established limit as determined by OWCP procedures.18

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because her stated assets exceed the allowable resource base. She indicated that she had 

assets of $114,307.28, including a savings account balance of $105,341.85. As this exceeds the 

relevant resource base of $10,300.00 for an individual with a spouse as provided in OWCP’s 

procedures, appellant has not shown that waiver of recovery would defeat the purpose of FECA.

19

 

Because she has not met the second prong of the two-prong test of whether recovery of the 

overpayment would defeat the purpose of FECA, it is unnecessary for OWCP to consider the first 

prong of the test, i.e., whether she needs substantially all of her current income to meet ordinary 

and necessary living expenses.20

The Board also finds that appellant has not established that she was entitled to waiver on 

the basis that recovery of the overpayment would be against equity and good conscience because 

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 2020).

15 Id. at Chapter 6.400.4b(3)(a), (b).

16 20 C.F.R. § 10.437(b)(1).

17 See J.R., Docket No .17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

18 D.M., Docket No. 19-1311 (issued February 4, 2020);supranote 15.

19 Supra note 15.

20 See R.A., Docket No. 20-1311 (issued January 26, 2022).
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she has not shown, for the reasons noted above, that she would experience severe financial 

hardship in attempting to repay the debt or that she relinquished a valuable right or changed her 

position for the worse in reliance on the payment which created the overpayment. 21

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

CONCLUSION

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

of compensation in the amount of $32,343.18 for the period January 1, 2019 through November 7, 

2020, for which she was without fault, because she 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.

ORDER

IT IS HEREBY ORDERED THAT the October 13, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 20, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

21 R.A., id.; L.D., Docket No. 18-1317 (issued April17, 2019); WilliamJ. Murphy, 41 ECAB 569 (1989).