United States Department of Labor

Employees’ Compensation Appeals Board

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D.C., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

MEDICAL COMMAND, EVANS ARMY 

COMMUNITY HOSPITAL, Fort Carson, CO, 

Employer

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Docket No. 22-0007

Issued: May 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 October 2, 2021 appellant filed a timely appeal from a July 1, 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 $43,308.75 for the period May 1, 2013 through 

October 10, 2020 for which she was without fault, because she concurrently received FECA wage -

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the July 1, 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

loss compensation benefits 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 $580.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On January 9, 2007 appellant, then a 55-year-old office automation assistant, filed an 

occupational disease claim (Form CA-2) alleging that she sustained major depressive disorder and 

generalized anxiety disorder causally related to factors of her federal employment. OWCP 

accepted the claim for generalized anxiety disorder and a single episode of major depression, in 

full remission. It paid appellant wage-loss compensation on the supplemental rolls, effective

February 3, 2004, and on the periodic rolls, effective August 29, 2010.

On September 4, 2020 OWCP sent a Federal Employees Retirement System (FERS)/SSA 

dual benefits form to SSA for completion.

In a response dated September 19, 2020, SSA provided appellant’s SSA age-related 

retirement benefit rates with FERS and without FERS from May 2013 through December 2019. 

It indicated that, beginning May 2013, appellant’s SSA rate with FERS was $864.20 and without 

FERS was $402.50; effective December 2013, her SSA rate with FERS was $877.10 and without 

FERS was $408.60; effective December 2014 and 2015, her SSA rate with FERS was $892.00 and 

without FERS was $415.50; effective December 2016, her SSA rate with FERS was $894.60 and 

without FERS was $416.70; effective December 2017, her SSA rate with FERS was $912.40 and 

without FERS was $425.00; effective December 2018, her SSA rate with FERS was $937.90 and 

without FERS was $436.80; and effective December 2019, her SSA rate with FERS was $952.90 

and without FERS was $443.80. SSA indicated that appellant’s SSA disability benefits ended in 

April 2013 and that her SSA age-related retirement benefits began in May 2013.

OWCP completed a FERS offset overpayment calculation form on February 23, 2021. It 

calculated the amount that it should have offset from appellant’s wage-loss compensation for each 

period from May 1, 2013 through October 10, 2020. OWCP found that from May 1 through 

November 30, 2013, appellant received an overpayment of $3,257.27; from December 1, 2013 

through November 30, 2014, she received an overpayment of $5,637.4; from December 1, 2014 

through November 30, 2015, she received an overpayment of $5,733.71; from December 1, 2015 

through November 30, 2016, she received an overpayment of $5,749.42; from December 1, 2016 

through November 30, 2017, she received an overpayment of $5,750.55; from December 1, 2017 

through November 30, 2018, she received an overpayment of $5,864.87; from December 1, 2018 

through November 30, 2019, she received an overpayment of $6,029.72; and from December 1, 

2019 through October 10, 2020, she received an overpayment of $5,285.77. Based on these 

figures, it calculated the total overpayment amount of $43,308.75.

In a preliminary overpayment determination dated February 23, 2021, OWCP notified 

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

amount of $43,308.75 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 OWCP20) to determine a reasonable payment method and advised her that she could request waiver of 
3

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 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.

On March 17, 2021 appellant requested waiver of recovery of the overpayment and 

asserted that it would be a financial hardship for her to repay the overpayment. In an OWCP-20 

form dated March 17, 2021, she listed monthly income of $3,133.95 consisting of Supplemental 

Security Income and wage-loss compensation from OWCP. Appellant indicated that she had 

monthly expenses totaling $3,584.62. She advised that she paid $1,180.54 for her rent or mortgage 

including property taxes and home insurance, $125.00 for food, $246.00 for utilities, and $160.27

for other expenses. Appellant indicated that she had monthly expenses of $633.08 for an 

automobile loan, $344.70 for a consolidated loan, $545.04 for a lending club loan, and $350.00 

for credit card debt. She listed assets of $49.24.

Appellant submitted bank statements showing that she paid $782.34 for her mortgage, 

$545.04 to a lending club, $633.08 for an automobile loan, and $344.70 for a bill consolidation 

loan. Credit card statements showed a total of $215.00 in monthly minimum payments. Appellant 

further submitted documentation showing that she paid $471.00 yearly for mortgage insurance, 

$499.53 in property taxes, $593.50 every six months for car insurance, and $211.25 monthly for 

telephone, internet, and cable. She submitted checks showing payments of $144.20 to a housing 

assistance corporation, $60.00 for a storm water payment, $48.17 for utilities, and $254.00 for a

condominium fee.

By decision dated July 1, 2021, OWCP finalized its finding that appellant had received an 

overpayment of compensation in the amount of $43,308.75 for the period May 1, 2013 through 

October 10, 2020 because she concurrently received SSA age-related retirement benefits and 

FECA wage-loss compensation without an appropriate offset. It denied waiver of recovery of the 

overpayment. OWCP found that appellant paid more than the required minimum on credit cards 

and that her mortgage payment was $782.00 rather than $1,100.00. It also noted that appellant 

had received monthly deposits of $360.00, $280.00, and $272.00. OWCPrequired recovery of the 

overpayment by deducting $580.00 from her continuing compensation payments every 28 days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA3 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.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

3

Supra note 1.

4

5 U.S.C. § 8102.

5

Id. at § 8116.
4

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.6 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. 7

ANALYSIS -- ISSUE 1

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

of wage-loss compensation in the amount of $43,308.75 for the period May 1, 2013 through 

October 10, 2020 for which she was without fault, because she concurrently received FECA wageloss compensation benefits and SSA age-related retirement benefits, without an appropriate offset. 

OWCP paid appellant wage-loss compensation for total disability beginning 

February 3, 2004. Appellant received SSA age-related retirement benefits beginning 

May 1, 2013. As noted, a claimant cannot receive concurrent FECA compensation for wage-loss 

and SSA age-related retirement benefits attributable to federal service.8 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.9 

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 May 2013 through 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 $43,308.75. The Board has reviewed 

OWCP’s calculation of dual benefits received by appellant for the period May 1, 2013 through 

October 10, 2020 and finds that an overpayment of compensation in the amount of $43,308.75 was 

created.10

6

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

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

8

Supra note 7. See F.K., Docket No. 20-1609 (issued June 24, 2021); A.C., Docket No. 18-1550 (issued 

February21, 2019).

9

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

10 See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).
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LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA 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 .

11

Recovery of an overpayment will defeat the purpose of FECA when 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. 12 An individual is deemed to need 

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

if monthly income does not exceed monthly expenses by more than $50.00. 13 Also, 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.14 An individual’s liquid assets 

include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and 

certificate of deposits.15

Recovery of an overpayment is 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.16

ANALYSIS -- ISSUE 2

The Board finds that this case is not in posture for decision regarding whether 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 a March 17, 2021 overpayment recovery questionnaire, appellant advised that she had 

assets of $49.24, monthly income of $3,133.95, and monthly expenses of $3,584.62. She provided 

11 5 U.S.C. § 8129. 

12 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).

13 Id. at Chapter 6.400.4a.(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 

(issued April 26, 2019).

14 See supra note 12at Chapter 6.400.4a.(2).

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

16 20 C.F.R. § 10.437(a)-(b).

17 Id. at § 10.436.
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bank statements, bills, and checks supporting that her monthly expenses exceeded her monthly

income. 

OWCP denied waiver of recovery as it found that appellant had unexplained monthly 

deposits and that her mortgage payment was $782.00 rather than $1,100.00. However, appellant

noted that she was including property taxes and insurance in the payment. OWCP also found that 

she paid more than the minimum expenses on credit cards. It did not, however, calculate 

appellant’s monthly expenses or explain in detail how her monthly income exceeded monthly 

expenses by more than the resource base. OWCP’s decision provides insufficient discussion or 

analysis regarding whether waiver would be against equity and good conscience or defeat the 

purpose of FECA.18 The determination of whether OWCP shall waive recovery of an overpayment 

is a matter than rests in its discretion pursuant to regulatory guidelines. The Board will not 

substitute its own discretion to decide the matter.19

The case will be remanded to OWCP to obtain updated financial information from 

appellant. After such development as it deems necessary, OWCP should issue a de novo decision 

on the issue of waiver of recovery of the overpayment.20

CONCLUSION

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

of wage-loss compensation in the amount of $43,308.75 for the period May 1, 2013 through 

October 10, 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 the case is not in posture for decision regarding whether OWCP 

properly denied waiver of recovery of the overpayment. 

18 See R.W., Docket No. 14-0195 (issued October 10, 2014).

19 See R.W., Docket No. 17-0276 (issued August 8, 2017); John M. Dunn, Docket No. 92-2096 (issued 

February18, 1994).

20 In view of the Board’s disposition of Issue 1, Issue 2 is moot.
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ORDER

IT IS HEREBY ORDERED THAT the July 1, 2021 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: May 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