United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.P., Appellant

and

DEPARTMENT OF THE INTERIOR, BUREAU 

OF INDIAN AFFAIRS, FORT BELKAMP 

AGENCY, Harlem, MT, Employer

__________________________________________

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Docket No. 22-1008

Issued: December 9, 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

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 21, 2022 appellant, through counsel, filed a timely appeal from a June 13, 2022 

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 June 13, 2022 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 $33,994.42 during the period August 1, 2015 

through September 11, 2021, for which he was without fault, as he concurrently received Social 

Security Administration (SSA) age-related retirement benefits and FECA wage-loss compensation 

benefits, without 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 

$516.92 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On January 24, 2011 appellant, then a 57-year-old range conservationist, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he sustained injuries to the body and head 

when he slipped on ice while in the performance of duty. On the reverse side of the claim form, 

the employing establishment noted appellant’s retirement system as Federal Employees 

Retirement System (FERS). OWCP accepted the claim for concussion with brief loss of 

consciousness and post-concussion syndrome. Appellant stopped work on January 24, 2011. 

OWCP paid him wage-loss compensation on the supplemental rolls effective March 11, 2011 and

the periodic rolls effective January 15, 2012.

On August 4, 2021 OWCP forwarded a FERS/SSA dual benefits form to SSA requesting 

information from SSA regarding appellant’s potential receipt of dual benefits.

On August 24, 2021 OWCP received a completed FERS/SSA dual benefits form from SSA 

bearing that date. SSA reported appellant’s SSA age-related retirement benefit rates with and 

without a FERS offset. The form indicated that the SSA rate with FERS was $1,351.40 effective 

August and December 2015; $1,355.40 effective December 2016; $1,382.50 effective 

December 2017; $1,421.20 effective December 2018; $1,443.90 effective December 2019; and 

$1,462.60 effective December 2020. The form further indicated that the SSA rate without FERS 

was $905.20 effective August and December 2015; $907.90 effective December 2016; $926.00 

effective December 2017; $951.90 effective December 2018; $967.10 effective December 2019; 

and $979.60 effective December 2020.

On September 13, 2021 OWCP notified appellant of its preliminary determination that he 

had received an overpayment of compensation in the amount of $33,994.45 as he had received 

FECA wage-loss compensation benefits for the period August 1, 2015 through September 11, 

2021 that had not been reduced by the portion of his SSA age-related retirement benefits 

attributable to his federal service, and that this portion of his SSA benefit was a prohibited dual 

benefit. It further advised him of its preliminary determination that he was without fault in the 

creation of the overpayment. OWCP requested that appellant complete an enclosed overpayment 

recovery questionnaire (Form OWCP-20) and submit supporting financial documentation, 

including income tax returns, bank account statements, bills and cancelled checks, pay slips, and 

any other records to support his reported income and expenses. Additionally, it provided an 

overpayment action request form and 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.
3

On September 24, 2021 appellant requested a prerecoupment hearing before OWCP’s 

Branch of Hearings and Review. He requested waiver as he was found to be without fault in the 

creation of the overpayment. Appellantsubmitted the same form again, dated September 29, 2021, 

and noted his additional disagreement that the overpayment occurred. In an attached Form 

OWCP-20, he advised that his total monthly income included $2,465.00 in SSA benefits. 

Appellantfurther advised that his monthly expenses totaled $2,550.00. He noted that he had assets 

of cash on hand of $25.00, as well as checking and savings account balances of $150.00 and 

$18,000.00, respectively, for total assets of $18,175.00.

By decision dated November 17, 2021, a hearing representative completed a preliminary 

review, vacating the September 13, 2021 preliminary decision. The hearing representative 

remanded the case for OWCP to explain how appellant’s overpayment was calculated.

In a memorandum to the file dated December 17, 2021, OWCP completed a FERS offset 

overpayment calculation. It determined the 28-day FERS offset amount for the days in each period 

and computed a total overpayment of $33,994.42. OWCP found that during the 122-day period 

from August 1 to November 30, 2015 appellant received an overpayment of $1,794.61; during the 

366-day period from December 1, 2015 to November 30, 2016 an overpayment of $5,383.82; 

during the 365-day period from December 1, 2016 to November 30, 2017 an overpayment of 

$5,384.75; during the 365-day period from December 1, 2017 to November 30, 2018 an 

overpayment of $5,493.05; during the 365-day period from December 1, 2018 to November 30, 

2019 an overpayment of $5,647.07; during the 366-day period from December 1, 2019 to 

November 30, 2020 an overpayment of $5,753.04; and for the 285-day period from December 1, 

2020 to September 11, 2021 an overpayment of $4,538.08. On December 17, 2021 OWCP 

notified appellant of its preliminary determination that he had received an overpayment of 

compensation in the amount of $33,994.42 as he had received FECA wage-loss compensation 

benefits for the period August 1, 2015 through September 11, 2021 that had not been reduced by 

the portion of his SSA age-related retirement benefits attributable to his federal service, and that 

this portion of his SSA benefit was a prohibited dual benefit. It further advised him of its 

preliminary determination that he was without fault in the creation of the overpayment. OWCP 

again requested that appellant complete an enclosed Form OWCP-20 and submit supporting 

financial documentation.

On December 28, 2021 appellant requested a prerecoupment hearing before OWCP’s 

Branch of Hearings and Review. He requested waiver as he was found to be without fault in the 

creation of the overpayment. Appellant again submitted his request on January 3, 2022. In an 

attached Form OWCP-20, he reported that his monthly income totaled $6,238.00. Appellant

further advised that his monthly expenses totaled $5,845.70. Appellant noted that he had assets

totaling $9,500.00, respectively, for total assets of $9,559.00. On April 8, 2022 OWCP received 

a substantial number of financial documents from appellant indicating his asset balances as well 

as his expenses. 

The hearing was held on March 31, 2022. During the hearing, counsel indicated that 

appellant had about $6,200.00 in monthly income, but that it was not all SSA benefits, with total 

monthly expenses of about $5,800.00.

By decision dated June 13, 2022, the hearing representative finalized OWCP’s preliminary 

overpayment determination that appellant had received an overpayment of compensation in the 

amount of $33,994.42 for the period August 1, 2015 through September 11, 2021. The hearing 
4

representative calculated and explained the overpayment. The hearing representativefurther found 

that while appellant was without fault in the creation of the overpayment, waiver of recovery of 

the overpayment was denied. He required repayment at the rate of $516.92 every 28 days deducted 

from his continuing compensation payments.

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.4 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.5

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

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

federal service of the employee.6 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.7

ANALYSIS -- ISSUE 1

The Board finds that OWCP has established that appellant received an overpayment of 

compensation in the amount of $33,994.42 during the period August 1, 2015 through 

September 11, 2021, for which he was without fault, as he concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation benefits, without appropriate offset.

As previously noted, a claimant cannot receive both FECA wage-loss compensation and 

SSA age-related retirement benefits attributable to federal service for the same period.8 The 

evidence of record establishes that appellant had concurrently received wage-loss compensation 

benefits and SSA age-related retirement benefits that were attributable to federal service during 

the period August 1, 2015 to September 11, 2021. Consequently, the fact of overpayment has been 

established.9

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

benefits that were attributable to federal service must be calculated. 

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802 

(issued August 20, 2018).

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

8 D.W., Docket No. 20-1533 (issued May 27, 2021); M.R.,Docket No. 20-0427 (issued October 30, 2020); 

A.C.,Docket No. 18-1550 (issued February 21, 2019); N.B.,Docket No. 18-0795 (issued January 4, 2019).

9

See L.B., Docket No. 19-1322 (issued January 27, 2020).
5

The Board has reviewed the calculation of benefits received by appellant for the period 

August 1, 2015 through September 11, 2021 and finds that an overpayment of compensation in 

the amount of $33,994.42 has been established. OWCP received documentation from SSA with 

respect to the specific amount of SSA age-related retirement benefits that were attributable to 

federal service. The SSA provided appellant’s SSA rate with FERS and without FERS for the 

period August 1, 2015 to September 11, 2021. OWCP provided its calculations of the amount that 

it should have offset during the relevant period based on the SSA worksheet. No contrary evidence 

was provided.

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

period August 1, 2015 to September 11, 2021 and finds that OWCP properly calculated an 

overpayment of compensation in the amount of $33,994.42.

10

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

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that 

rests within OWCP’s discretion pursuant to statutory guidelines.12

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause 

hardship to a currently or formerly entitled beneficiary 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 the beneficiary’s assets do 

not exceed a specified amount as determined by OWCP. 13 Additionally, 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 in attempting to repay the 

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

made, gives up a valuable right or changes his or her position for the worse. 14

OWCP’s regulations provide 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. The information is also used to 

10 N.V., Docket No. 20-0080 (issued January 21, 2022).

11 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C.,Docket No. 19-0699 (issued 

February12, 2020).

12 A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

13 20 C.F.R. § 10.436(a)-(b). For an individual with no eligible dependents the asset base is $6,200.00. The base 

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

14 Id. at § 10.437(a)(b).
6

determine the repayment schedule, if necessary.15 Failure to submit the requested information 

within 30 days of the request shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished.16

ANALYSIS -- ISSUE 2

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

On the Form OWCP-20 appellant reported that his monthly income totaled $6,238.00 and 

his monthly expenses totaled $5,845.70. As appellant’s monthly income exceeded his ordinary 

and necessary living expenses by more than $50.00, he did not need substantially all of his income 

for ordinary and necessary living expenses.17

Appellant also did not establish that he was entitled to waiver on the basis that recovery of 

the overpayment would be against equity and good conscience. He did not provide any financial 

information demonstrating that he would experience severe financial hardship in attempting to 

repay the debt or that he gave up a valuable right in reliance on his wage-loss compensation 

benefits. Accordingly, appellant has not established that recovery of the overpayment was against 

equity and good conscience.18

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. 19

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 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.21

15 Id. at § 10.438(a); M.S.,Docket No. 18-0740 (issued February 4, 2019).

16 Id. at § 10.438(b).

17 See M.C., Docket No. 19-0699 (issued February 12, 2020).

18 M.A., Docket No. 18-1666 (issued April26, 2019).

19 See supra note 15.

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

21 Id.
7

ANALYSIS -- ISSUE 3

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

$516.92 from appellant’s continuing compensation payments every 28 days.

The record supports that, in requiring repayment of the overpayment by deducting $516.92 

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

financial information he 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. Therefore, OWCP properly 

required recovery of the overpayment by deducting $516.92 from appellant’s continuing 

compensation every 28 days.22

CONCLUSION

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

$33,994.42 during the period August 1, 2015 through September 11, 2021, for which he was 

without fault, as he concurrently received SSA age-related retirement benefits and FECA wageloss 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 $516.92 from appellant’s continuing compensation every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the June 13, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 9, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

22 See J.R., Docket No. 17-0181 (issued August 12, 2020); L.G., Docket No. 19-1274 (issued July 10, 2020).