United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.G., Appellant

and

FEDERAL JUDICIARY, U.S. DISTRICT 

COURT, San Antonio, TX, Employer

__________________________________________

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Docket No. 21-0875

Issued: November 16, 2021

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, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 17, 2021 appellant filed a timely appeal from a February 5, 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.

ISSUES

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

overpayment of compensation in the amount of $39,639.56 for the period June 1, 2015 through 

August 15, 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; (2) whether OWCP properly denied waiver of recovery of the 

overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting 

$306.56 from appellant’s continuing compensation payments every 28 days.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

OWCP accepted that on July 5, 1996 appellant, then a 48-year-old docket clerk, sustained 

cervical sprain, displacement of a cervical intervertebral disc without myelopathy, and a sprain of 

the left shoulder and upper arm when she fell from a ladder while in the performance of duty. 2 

Appellant stopped work on January 3, 1997 and did not return. She underwent a cervical 

discectomy and fusion at C5-6 on February 3, 1997, a discectomy and fusion from C4-5 through 

C6-7 on January 14, 1998, and an acromioplasty with a partial rotator cuff debridement of the left 

shoulder on October 1, 1998. OWCP paid appellant wage-loss compensation for disability on the 

periodic rolls.

On July 28, 2020 OWCP sent a Federal Employees Retirement System (FERS)/SSA dual 

benefits calculation form to SSA for completion.

In an August 18, 2020 response, SSA provided the monthly age-related retirement benefit 

rates that appellant was entitled to with and without FERS effective June 2015 to December 2019. 

It notified OWCP that, with FERS, appellant was entitled to monthly payments of $1,059.20 

effective June 2015 and December 2015, $1,062.30, effective December 2016, $1,083.50 effective 

December 2017, $1,113.80 effective December 2018; and $1,131.60 effective December 2019. 

Without FERS, she was entitled to monthly payments of $442.30 effective June 2015 and 

December 2015, $443.60 effective December 2016, $452.40 effective December 2017, $465.00 

effective December 2018, and $472.40 effective December 2019.

In an August 19, 2020 letter, OWCP informed appellant that it would begin deducting the 

portion of SSA age-related retirement benefits attributable to her federal service from her

compensation benefits. It found that appellant was entitled to net compensation after the SSA 

offset of $1,388.57. 

In an August 20, 2020 FERS offset calculation memorandum, OWCP calculated the 

FERS/SSA offset for each period from June 1, 2015 through August 15, 2020. It found that, from 

June 1, 2015 through November 30, 2016, appellant received an overpayment in the amount of 

$11,165.21, from December 1, 2016 through November 30, 2017, she received an overpayment of 

$7,444.80, from December 1, 2017 through November 30, 2018, appellant received an 

overpayment of $7,594.01, from December 1, 2018 through November 30, 2019, she received an 

overpayment of $7,806.99, and from December 1, 2019 through August 15, 2020, appellant 

received an overpayment of $5,628.55. OWCP added the amounts to find a total overpayment of 

$39,639.56.

On September 15, 2020 OWCP issued a preliminary overpayment determination, finding 

that an overpayment of compensation in the amount of $39,639.56 had been created because 

appellant received wage-loss compensation payments for the period June 1, 2015 through 

August 15, 2020 that had not been reduced to offset her SSA age-related retirement benefits 

attributable to her federal service. It determined 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 

2 The traumatic injury claim (Form CA-1) is not contained in the case record.
3

supporting financial documentation, including copies of income tax returns, bank account 

statements, bills and canceled checks, pay slips, and any other records, which support 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 an overpayment action request form signed October 8, 2020, appellant requested a 

decision based on the written evidence. She requested waiver of recovery of the overpayment. In 

an OWCP-20 form, appellant advised that she had monthly income of $1,732.00 in SSA benefits 

and listed monthly expenses of $4,317.78. She indicated that she had assets of $5,630.00.

Appellant submitted supporting financial documentation. In an accompanying statement, she 

related that she did not know that her SSA benefits when she turned 65 would affect her OWCP 

benefits. Appellant advised that the $10,000.00 in a savings account currently had a balance of

$5,000.00 as she had used it to meet expenses. 

By decision dated February 5, 2021, OWCP finalized its preliminary overpayment 

determination finding that appellant had received a $39,639.56 overpayment of compensation for 

the period June 1, 2015 through August 15, 2020 because it failed to offset her compensation 

payments by the portion of her SSA age-related retirement benefits that were attributable to her

federal service. It further found that she was without fault in the creation of the overpayment, but 

denied waiver of recovery of the overpayment. OWCP found that appellant had monthly income 

of $2,958.26.3 It subtracted appellant’s monthly expenses of $4,317.78 and found that she had a 

surplus of $1,359.52. OWCP required recovery of the overpayment by deducting $306.56 from 

her continuing compensation payments every 28 days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA4 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 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 

3

It appears that OWCP added appellant’s SSA income of $1,131.60 to her compensation from OWCP as if it were 

monthly rather than every 28 days to find that she had monthly income of $2,958.26.

4

Supra note 1.

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).
4

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

ANALYSIS -- ISSUE 1

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

of wage-loss compensation in the amount of $39,639.56 for the period June 1, 2015 through 

August 15, 2020 for which she was without fault, because she concurrently received FECA wageloss compensation and SSA age-related retirement benefits without an appropriate offset. 

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

she stopped work in January 1997. Appellant received SSA age-related retirement benefits 

beginning June 2015. As noted, a claimant cannot receive concurrent FECA compensation for 

wage-loss and SSA age-related retirement benefits attributable to federal service.9 The 

information provided by SSA indicates 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 the SSA rates with FERS and without FERS for 

specific periods from June 2015 through December 2019. OWCP provided its calculations for 

each relevant period based on SSA’s dual benefits calculation worksheet and determined that 

appellant received an overpayment of compensation in the amount of $39,639.56. The Board has 

reviewed OWCP’s calculation of dual benefits received by appellant for the period June 1, 2015 

through August 15, 2020 and finds that an overpayment of compensation in the amount of 

$39,639.56 was created.

11

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.12

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 

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

9

Supra note 6. See F.K., Docket No. 20-1609 (issued June 24, 2021); A.C., Docket No. 18-1550 (issued 

February21, 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 5 U.S.C. § 8129. 
5

not exceed a specified amount as determined by OWCP. 13 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. 14 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.15 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.16

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.17

ANALYSIS -- ISSUE 2

The Board finds that this case is not in posture for decision regarding 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.18

In its final overpayment determination, OWCP improperly found that appellant’s monthly 

income of $2,958.26 exceeded her monthly expenses of $4,317.78 by $1,359.52. In fact, 

appellant’s reported expenses exceed her income. However, OWCP failed to consider whether 

appellant’s assets 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. 19 

Consequently, it remains unclear whether recovery of the overpayment would defeat the purpose 

of FECA.

20

 

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(2)(3) (September 2020).

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

(issued April 26, 2019).

15 See supra note 13at Chapter 6.400.4(a)(2) (September 2020).

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

17 20 C.F.R. § 10.437(a)(b).

18 Id. at § 10.436.

19 See supra note 13 at Chapter 6.400.4(a)(2) (September 2020).

20 See V.B., Docket No. 20-0976 (issued January 26, 2021).
6

For the above reasons, the case shall be remanded for OWCP to obtain updated financial 

information and properly determine whether appellant is entitled to wavier of recovery of the 

overpayment. Following this and other such further development as deemed necessary, it shall 

issue a de novo decision on the issue of waiver of recovery of the overpayment.21

CONCLUSION

The Board finds that OWCP properly found that appellant received an overpayment of 

compensation in the amount of $39,639.56 from June 1, 2015 through August 15, 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 this case is not in posture for decision regarding waiver of recovery of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the February 5, 2021 decision of the Office of 

Workers’Compensation Programs is affirmed in part and set aside in part and the case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: November 16, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

21 In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.