United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.D., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA

__________________________________________

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Docket No. 22-1111

Issued: December 9, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 11, 2022 appellant filed a timely appeal from a May 3, 2022 merit decision of the 

Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

consider the merits of this case.

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $1,373.82 for the period July 3 through August 13, 2021 for which he was without fault, 

because he concurrently received Social Security Administration (SSA) age-related retirement 

1 The Board notes that, following the May3, 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

5 U.S.C. § 8101 et seq.
2

benefits and FECA wage-loss compensation, without an appropriate offset; and (2) whether 

OWCP properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On March 29, 2021 appellant, then a 67-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that on February 19, 2021 he contracted COVID-19 while in the 

performance of duty. He stopped work on March 19, 2021. OWCP accepted the claim for 

COVID-19. It paid wage-loss compensation on the supplemental rolls beginning July 3, 2021.

On August 4, 2021 OWCP provided SSA with a Federal Employees Retirement System 

(FERS)/SSA dual benefits form. It requested appellant’s SSA age-related retirement benefit rates 

with and without FERS offset as of February 19, 2021.

On August 31, 2021 OWCP received the completed dual benefits form, wherein SSA 

reported SSA age-related retirement benefit rates with a FERS offset and without a FERS offset. 

Beginning February 2021, the SSA rate with FERS was $1,899.60and without FERS was $907.40.

In a notice dated September 14, 2021, OWCP advised appellant that he had been receiving 

a prohibited dual benefit. It noted that the SSA had confirmed that a portion of his SSA age-related 

retirement benefits were attributed to his years of federal service as an employee under the FERS 

retirement program and that portion required an offset of his FECA compensation benefits in the 

amount of $915.88 every 28 days. OWCP advised that, to account for his SSA offset, appellant’s

FECA wage-loss compensation would be adjusted to reflect a new net compensation amount 

effective August 14, 2021.

On November 23, 2021 OWCP issued a preliminary overpayment determination notifying 

appellant that he had received an overpayment of compensation in the amount of $1,373.82 for the 

period July 3 through August 13, 2021 because the SSA/FERS offset was not applied to payments 

for this period. It determined that he 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 recovery method, and advised him that he could request a waiver of 

recovery of the overpayment. It requested financial information, including copies of income tax 

returns, bank account statements, bills, pay slips, and any other records to support income and 

expenses. OWCP advised appellant that it would deny waiver if he failed to f urnish the requested 

financial information within 30 days. It provided an overpayment action request form and further 

notified him that, within 30 days of the date of the letter, he could contest the overpayment and 

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

In an e-mail dated November 30, 2021, appellant requested waiver of recovery of the 

overpayment as repayment of the overpayment would result in financial hardship. He did not 

provide any additional information or documents.

Appellant retired from the employing establishment, effective December 31, 2021. He 

elected to receive Office of Personnel Management retirement benefits, effective May 1, 2022.

In a FERS Offset calculation worksheet dated May 3, 2022, OWCP used the information 

provided by SSA to calculate the 28-day FERS offset for the relevant periods and calculated a total 
3

overpayment in the amount of $1,373.82. It found that, during the period July 3 through 

August 31, 2021, appellant received an overpayment in the amount of $1,373.82.

By decision dated May 3, 2022, OWCP finalized the November 23, 2021 preliminary 

overpayment determination, finding that appellant had received an overpayment of compensation 

in the amount of $1,373.82because it had failed to offset his compensation payments for the period 

July 3 through August 13, 2021 by the portion of his SSA benefits that were attributable to federal 

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

waiver of recovery of the overpayment because the evidence of record was insufficient to establish 

that recovery of an overpayment would defeat the purpose of FECA or would be against equity 

and good conscience.

LEGAL PRECEDENT -- ISSUE 1

Section 8102 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.

3

 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.4

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

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

service of the employee.5 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.6

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $1,373.82 for the period July 3 through August 31, 2021 for 

which he was without fault, as he concurrently received SSA age-related retirement benefits and 

FECA wage-loss compensation, without an appropriate offset.

As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA 

age-related retirement benefits attributable to federal service for the same period. 7 The information 

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); D.S., Docket No. 22-0441 (issued September 30, 2022); E.R.,Docket No. 21-0133 (issued 

November 15, 2021); M.R.,Docket No. 20-1622 (issued June 30, 2021); S.S.,Docket No. 19-1945 (issued March 25, 

2021); see S.O.,Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

6 FECA Bulletin No. 97-09 (issued February3, 1997).

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Id.;see 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).
4

provided by SSA established that appellant had received SSA age-related retirement benefits that 

were attributable to his federal service from July 3 through August 31, 2021. Consequently, the 

fact of overpayment has been established.

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 

documentation from SSA with respect to the specific amount of SSA age-related retirement 

benefits that were attributable to federal service. SSA provided its rate with FERS and without 

FERS during the specific period July 3 through August 31, 2021. OWCP provided its calculation 

for the relevant period based on SSA’s worksheet.

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

period July 3 through August 31, 2021 and finds that an overpayment in the amount of $1,373.82

has been established.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in compensation shall 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.8 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.9

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.10 Appellant, 

however, had the responsibility to provide supporting financial information and documentation to 

OWCP, but failed to do so.

11

In its preliminary overpayment determination dated November 23,2021, OWCP explained 

the importance of providing the completed overpayment recovery questionnaire and supporting 

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

pay slips, and any other records to support her reported income and expenses. It advised appellant 

8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.438.

10 Id. at § 10.436.

11 Id.;see P.A., Docket No. 22-0801 (issued October 28, 2022).
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that it would deny waiver of recovery if he failed to furnish the requested financial information 

within 30 days. Appellant, however, did not submit sufficient financial documentation necessary 

for OWCP to determine if recovery of the overpayment would defeat the purpose of FECA or if 

recovery would be against equity and good conscience. He did not complete a Form OWCP-20 

outlining his income, assets, and expenses. The evidence of record is, therefore, insufficient to 

establish that recovery of the overpayment would defeat the purpose of FECA or be against equity 

and good conscience.12

Consequently, the Board finds that OWCP properly denied waiver of recovery of the 

overpayment in the May 3, 2022 decision.13

CONCLUSION

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

of compensation in the amount of $1,373.82 for the period July 3 through August 31, 2021, for 

which he was without fault, as he concurrently received SSA age-related retirement benefits and 

FECA wage-loss compensation, without an appropriate offset. The Board further finds that OWCP 

properly denied waiver of recovery of this overpayment.14

12 See C.L., Docket No. 22-0349 (issued August 30, 2022); L.W.,Docket No. 19-0787 (issued October 23, 2019); 

L.L., Docket No. 18-1103 (issued March 5, 2019).

13 See C.L., id.; T.E., Docket No. 19-0348 (issued December 11, 2019).

14 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 C.F.R. § 10.441; see A.S., Docket No. 22-0281 (issued 

September 26, 2022); M.P., Docket No. 18-0902 (issued October 16, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the May 3, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 9, 2022

Washington, DC

Alec J. Koromilas, 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