United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

DEPARTMENT OF THE ARMY, SIERRA 

ARMY DEPOT, Herlong, CA, Employer

__________________________________________

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Docket No. 22-0694

Issued: November 22, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 31, 2022 appellant filed a timely appeal from a March 18, 2022 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 $16,438.19,for the periodsAugust 1, 2012 through

June 30, 2015 and July 1, 2016 through August 15, 2020,for which she was without fault, because 

she concurrently received FECA wage-loss compensation and Social Security Administration 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 18, 2022 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Proceduresprovides: “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

(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 $421.50every 28 daysfrom appellant’s continuing compensation 

payments.

FACTUAL HISTORY

On October 31, 2001 appellant, then a 51-year-old packer, filed a traumatic injury claim 

(Form CA-1) alleging that on October 25, 2001 she sustained bruises and cuts to her wrists and 

legs when she got out of a forklift, and her boot became caught on hanging ribbon material, causing 

her to fall while in the performance of duty. OWCP accepted her claim for bilateral hand sprains;

bilateral wrist and hand contusions; sprain of other part of right wrist and hand; unspecified 

arthropathy of the left hand; other postprocedural status on the left hand; and pain in left hand 

joint. Appellant stopped work on October 2, 2002. OWCP paid her wage-loss compensation for 

continuing disability from work on the supplemental rolls commencing October 3, 2002 and on 

the periodic rolls commencing October 6, 2002. The case record contains documentation 

demonstrating that appellant elected to receive FECA compensation instead of compensation 

under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System

(CSRS).

On August 4, 2020 OWCP received a FERS/SSA dual benefits form completed by SSA on 

July 16, 2020, which indicated that appellant received SSA age-related retirement benefits that 

were attributable to federal service commencing August 1, 2012. SSA provided age-related 

retirement benefit rates with and without a FERS offset as follows: beginning August 1, 2012, the 

SSA rate with FERS was $726.90 and without FERS was $542.10; beginning December 1, 2012 

the SSA rate with FERS was $739.30 and without FERS was $551.30; beginning December 1, 

2013 the SSA rate with FERS was $750.40 and without FERS was $559.50; beginning 

December 1, 2014 the SSA rate with FERS was $763.10 and without FERS was $569.00;

3

beginning July 1, 2016 the SSA rate with FERS was $945.60 and without FERS was $754.60; 

beginning December 1, 2016 the SSA rate with FERS was $948.40 and without FERS was 

$756.80; beginning December 1, 2017 the SSA rate with FERS was $967.30 and without FERS 

was $771.90; beginning December 1, 2018 the SSA rate with FERS was $994.30 and without 

FERS was $793.50; and beginning December 1, 2019 the SSA rate with FERS was $1,010.20 and 

without FERS was $806.10. 

On August 18, 2020 OWCP prepared a FERS offset overpayment calculation worksheet, 

based on the benefits rates provided by SSA, wherein it noted the calculations of appellant’s 

overpayment for the periods August 1, 2012 through June 30, 2015 and July 1, 2016 through 

August 15, 2020. It determined that: for the period August 1 through November 30, 2012

appellant received an overpayment of $743.26; for the period December 1, 2012 through 

November 30, 2013 appellant received an overpayment of $2,262.20; for the period December 1, 

2013 through November 30, 2014 appellant received an overpayment of $2,297.09; for the period 

December 1, 2014 through June 30, 2015 appellant received an overpayment of $1,356.57;

4

for 

3 The document indicated that, due to appellant being placed back on SSA disability benefits from July 1, 2015 

through June 30, 2016, there were no applicable SSA age-related retirement benefit ratesfor this period.

4 The document indicated that there was no overpayment for the period July 1, 2015 through June30, 2016.
3

the period July 1 through November 30, 2016 appellant received an overpayment of $963.40; for 

the period December 1, 2016 through November 30, 2017 appellant received an overpayment of 

$2,305.52; for the period December 1, 2017 through November 30, 2018 appellant received an 

overpayment of $2,351.24; for the period December 1, 2018 through November 30, 2019 appellant 

received an overpayment of $2,416.22; and for the period December 1, 2019 through August 15, 

2020 appellant received an overpayment of $1,742.70. The total overpayment was determined to 

be $16,438.19.

On August 19, 2020 OWCP advised appellant that it was adjusting her wage-loss 

compensation to offset the portion of her SSA age-related retirement benefits attributable to her 

federal service. It informed her that the portion of the SSA benefits that she earned as a federal 

employee was part of the FERS retirement package and that FECA did not allow the simultaneous 

receipt of workers’ compensation and federal retirement benefits.

In a preliminary overpayment determination dated August 21, 2020, OWCP notified

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

amount of $16,438.19 for the periods August 1, 2012 through June 30, 2015 and July 1, 2016 

through August 15, 2020, because she concurrently received SSA age-related retirement benefits 

attributable to her federal service 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 rate of recovery, and advised 

her that she could request waiver of recovery of the overpayment. It further requested that she 

provide financial documentation, including copies of income tax returns, bank account statements, 

bills and canceled checks, pay slips, and other records in order to 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 final decision based on the written 

evidence, or a prerecoupment hearing.

On September 11, 2020 OWCP received an overpayment action request form, signed on 

September 2, 2020, in which appellant requested waiver of recovery of the overpayment. 

Appellant submitted a Form OWCP-20, signed on September 3, 2020 listing her monthly income 

of $4,880.03 including $2,260.60 in SSA benefits, $1,344.90 in Department of Veterans Affairs

disability benefits, and $1,274.53 in CSRS benefits. She listed her monthly expenses of $1,105.35 

for rent, $539.34 for food, $200.00 for clothing, $500.44 for utilities, $559.83 for solar cell 

financing, and $250.10 for credit payment resulting in a total of $3,065.06 in monthly expenses. 

Appellant listed assets of $10.00 cash on hand, $2,707.49 in a checking account, and $705.33 in a 

savings account, resulting in total assets of $3,422.82.

By decision dated March 18, 2022, OWCP finalized the preliminary overpayment 

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

$16,438.19, for the periods August 1, 2012 through June 30, 2015 and July 1, 2016 through 

August 15, 2020, because she concurrently received SSA age-related retirement benefits and

FECA wage-loss compensation, without an appropriate offset. It further found that she was 

without fault in the creation of the overpayment, but denied waiver of recovery because her

monthly income exceeded her monthly expenses by more than $50.00. The financial documents 
4

and other information submitted by appellant showed that she had $7,396.70 in monthly income,5

$3,065.06 in monthly expenses, and $3,422.82 in assets. OWCP also determined that recovery of 

the overpayment would be made by deducting $421.50 from her continuing compensation 

payments every 28 days.

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.6 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.7

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.8 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. 9

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $16,438.19, for the periods August 1, 2012 through June 30, 

2015 and July 1, 2016 through August 15, 2020, for which she was without fault, because she 

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

without an appropriate offset.

OWCP paid appellant wage-loss compensation for continuing total disability due to her

accepted employment injury. The case record establishes that, appellant was concurrently 

receiving wage-loss compensation benefits under FECA and SSA age-related retirement benefits 

attributable to her federal service, without an appropriate offset. A claimant cannot concurrently 

receive FECA wage-loss compensation and SSA age-related retirement benefits attributable to 

5 OWCP indicated that appellant had neglected to include $2,516.67 in monthly FECA benefits on her financial 

questionnaire.

6

5 U.S.C. § 8102.

7

Id. at § 8116.

8

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

9 FECA Bulletin No. 97-09(issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
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federal service for the same period.10 Accordingly, the Board finds that fact of overpayment has 

been established.11

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. OWCP received a dual 

benefits calculation form from SSA with respect to the specific amount of SSA age-related 

retirement benefits that were attributable to federal service. Based upon this information, OWCP 

created a FERS offset overpayment calculation worksheet calculating a total overpayment amount. 

SSA provided its rates with FERS and without FERS for specific periods between August 1, 2012 

and August 15, 2020. OWCP properly calculated the overpayment amount for each relevant 

period based on SSA’s worksheet.

The Board thus finds that appellant received prohibited dual benefits in the amount of 

$16,438.19 for the periods August 1, 2012 through June 30, 2015 and July 1, 2016 through 

August 15, 2020, without an appropriate offset.12

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA13 provides that an overpayment must 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.” 

Thus, a finding that appellant was without fault does not automatically result in waiver of recovery 

of the overpayment. OWCP must then exercise its discretion to determine whether recovery of 

the overpayment would defeat the purpose of FECA or would be against equity and good 

conscience.14

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. 15 An individual’s liquid assets 

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 

10 M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., id.; A.C., Docket No. 18-1550 (issued 

February21, 2019).

11 See K.H., Docket No. 18-0171 (issued August 2, 2018).

12 See L.W., Docket No. 19-0787 (issued October 23, 2019); L.L., Docket No. 18-1103 (issued March 5, 2019).

13 5 U.S.C. § 8129(1)-(b); A.C., supra note 10; see D.C., Docket No. 17-0559 (issued June21, 2018).

14 A.C., id.;see V.T., Docket No. 18-0628 (issued October 25, 2018).

15 20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her 

current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 --Debt Management, Initial Overpayment 

Determinations, Chapter 6.400.4a(3) (September 2020). OWCP’s 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. Id. at Chapter 6.400.4a(2).
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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.16

According to 20 C.F.R. § 10.437 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 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.17 To establish that a valuable right has been relinquished, it must be 

shown that the right was in fact valuable, that it cannot be regained, and that the action was based 

chiefly or solely in reliance on the payments or on the notice of payment. 18

Section 10.438 of OWCP’s 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 

of recovery of the overpayment.19

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. 20

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

of FECA because she has not shown both that she needs substantially all of her current income to 

meet ordinary and necessary living expenses and that her assets do not exceed the allowable 

resource base. As properly determined by OWCP, her monthly income exceeds her monthly 

ordinary and necessary expenses by approximately $4,331.64. The evidence of record reflects that 

appellant had $7,396.70 in monthly income, $3,065.06 in monthly expenses, and $3,422.82 in 

assets. As her current income exceeds her current ordinary and necessary living expenses by more 

than $50.00 she has not shown that she needs substantially all of her current income to meet current 

ordinary and necessary living expenses.21 Because appellant has not met the first prong of the 

two-prong test of whether recovery of the overpayment would defeat the purpose of FECA, it is 

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

17 20 C.F.R. § 10.437(a)-(b).

18 Id. at § 10.437(b)(1).

19 Id. at § 10.438.

20 Id. at § 10.436.

21 See supra note 15.
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unnecessary for OWCP to consider the second prong of the test, i.e., whether her assets exceed the 

allowable resource base.

The Board 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 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. 22 

The Board thus 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.23 Section 10.441 

of Title 20 of the Code of Federal Regulations provides that if an overpayment of compensation 

has been made to one entitled to future payments, proper adjustment shall be made by decreasing 

subsequent 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 any hardship.”

24

 When an individual fails to provide the 

requested information on income, expenses and assets, OWCP should follow minimum collection 

guidelines, which state in general that government claims should be collected in full and that, if an 

installment plan is accepted, the installments should be large enough to collect the debt promptly. 25

ANALYSIS -- ISSUE 3

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

$421.50 from appellant’s continuing compensation payments every 28 days.

The record supports that, in requiring recovery of the overpayment by $421.50 from 

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

financial information submitted by appellant as well as the factors set forth in section 10.441 and 

found that this method of recovery would minimize any resulting hardship on appellant. 

Therefore, the Board finds that OWCP properly required recovery of the overpayment by 

deducting $421.50 from her continuing compensation payments every 28 days.

CONCLUSION

OWCP properly determined that appellant received an overpayment of compensation in 

the amount of $16,438.19, for the periods August 1, 2012 through June 30, 2015 and July 1, 2016 

22 See L.D., Docket No. 18-1317 (issued April17, 2019); WilliamJ. Murphy, 41 ECAB 569, 571-72(1989).

23 R.W., Docket No. 19-0451 (issued August7, 2019); C.A., Docket No. 18-1284 (issued April15, 2019); Albert 

Pinero, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51 ECAB 295 (2000).

24 20 C.F.R. § 10.441; see A.F., Docket No. 19-0054 (issued June12, 2019); Donald R. Schueler, 39 ECAB 1056, 

1062 (1988).

25 R.O., Docket No. 18-0076 (issued August 3, 2018); GailM. Roe, 47 ECAB 268 (1995).
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through August 15, 2020, for which she was without fault, because she concurrently received 

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

offset. The Board further finds that OWCP properly denied her request for waiver of recovery of 

the overpayment, and properly required recovery of the overpayment by deducting $421.50 from 

her continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the March 18, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 22, 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