United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Raleigh, NC, Employer

__________________________________________

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Docket No. 20-1291

Issued: September 14, 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

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 21, 2020 appellant filed a timely appeal from an October 25, 2019 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 over 

the merits of this case.3

 

1 Appellant died after the filing of this appeal. As such, a substitute appellant is required to carry the appeal forward 

as the Board’s jurisdiction was invoked during her lifetime. See N.D., Docket No. 14-1757 (issued June 2, 2015); 

Albert F. Kimbrell, 4 ECAB 662, 666 (1952). Accordingly, appellant’s next-of-kin, T.R., is recognized by the Board 

as the substitute appellant for the purposes of carrying the appeal forward.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that OWCP received additional evidence following the October 25, 2019 decision. 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 $5,359.78, for which she was without fault, 

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

Administration (SSA) age-related retirement benefits for the period March 1, 2018 through 

August 17, 2019, 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 $578.80 from her continuing compensation payments every 28 days.

FACTUAL HISTORY

On February 20, 2007 appellant, then a 54-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on February 9, 2007 she sustained a concussion, headaches, and 

injuries to her neck, back, and legs when her postal vehicle was rear-ended while she was servicing 

a mail box in the performance of duty. She noted that her retirement coverage was under the 

Federal Employees’ Retirement System (FERS). OWCP accepted the claim for headaches, neck 

sprain, lumbar sprain, concussion without loss of consciousness, anxiety state, and adjustment

disorder with depressed mood. It paid appellant wage-loss compensation on the supplemental 

rolls, effective February 9, 2007, and on the periodic rolls, effective March 16, 2008. 

On June 26, 2019 OWCP provided SSA with a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form. On July 9, 2019 SSA submitted the completed form, 

which showed SSA benefit rates with a FERS offset and without a FERS offset from March 2018 

through December 2018. Beginning March 2018, the SSA rate with FERS was $1,086.00 and 

without FERS was $786.00. Beginning December 2018, the SSA rate with FERS was $1,116.50 

and without FERS was $808.50. 

OWCP completed a FERS offset calculation worksheet on August 13, 2019. It calculated 

the overpayment amount by determining the daily FERS offset amount and multiplying that 

amount by the number of days in each period March 1, 2018 through August 17, 2019, for a total 

overpayment amount of $5,359.78. OWCP determined that during the period March 1 through 

November 30, 2018, an overpayment of compensation had been created in the amount of 

$2,719.78, and for the period December 1, 2018 through August 17, 2019, an overpayment of 

compensation had been created in the amount of $2,640.00 for a total of $5,359.78.

In a letter dated August 22, 2019, OWCP advised appellant that she had been receiving a 

prohibited dual benefit. It noted that the portion of SSA benefits earned as a federal employee was 

part of her retirement and that the receipt of wage-loss compensation under FECA and federal 

retirement was prohibited. OWCP noted that it would adjust appellant’s FECA wage-loss 

compensation to account for her SSA offset, and the 28-day offset of $284.31 would reduce her

net compensation payment every 28 days to $2,351.21.

On August 22, 2019 OWCP issued a preliminary determination that appellant received an 

overpayment of compensation in the amount of $5,359.78, because she received FECA wage-loss 

compensation benefits concurrently with SSA age-related retirement benefits from March 1, 2018 

through August 17, 2019. It found her without fault in the creation of the overpayment because 
3

she was not aware, nor could she reasonably have been expected to know, that it had paid 

compensation incorrectly. OWCP requested that appellant submit a completed overpayment 

recovery questionnaire (Form OWCP-20) to determine a fair repayment method. 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 she failed to furnish the requested financial information within 30 days. It

also noted that she could request waiver of recovery of the overpayment. OWCP provided 

appellant with appeal rights and afforded her 30 days to respond. No additional evidence relevant 

to the preliminary overpayment was received.

By decision dated October 25, 2019, OWCP made a final determined that appellant had 

received an overpayment of compensation in the amount of $5,359.78, because a portion of her

SSA age-related retirement benefits was based on credits earned while working in the Federal 

Government and that this portion of her SSA benefit was a prohibited dual benefit. It further found 

that she was not at fault in the creation of the overpayment, but denied waiver of recovery of the 

overpayment. OWCP noted that no response had been received following the preliminary 

determination. It required recovery of the overpayment of $5,359.78 by deducting $578.80 every 

28 days from appellant’s continuing wage-loss compensation payments. 

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) 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 his 

or her federal employment.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 When an overpayment has been made to an 

individual because of an error of fact or law, adjustment shall be made under regulations prescribed 

by the Secretary of Labor by decreasing later payments to which the individual is entitled.6

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

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

federal service of the employee.7 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.8

 

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); see T.B., Docket No. 18-1449 

(issued March19, 2019); L.J., 59 ECAB 264 (2007).

8 FECA Bulletin No. 97-09 (February 3, 1997).
4

ANALYSIS -- ISSUE 1

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

compensation in the amount of $5,359.78, because she concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation for the period March 1, 2018 through 

August 17, 2019.

The record indicates that, while appellant was receiving compensation for disability under 

FECA, she also was receiving SSA age-related retirement benefits during the applicable period. 

A claimant cannot receive both compensation for wage-loss and SSA age-related retirement 

benefits attributable to federal service for the same period.9 Consequently, the fact of overpayment 

has been established.

To determine the amount of overpayment, the SSA provided appellant’s SSA rates with 

FERS and without FERS during the applicable period noting that appellant had received agerelated retirement benefits, from March 1, 2018 through August 17, 2019. Based on the 

information provided by SSA, OWCP calculated that an overpayment of compensation in the 

amount of $5,359.78 had occurred during the applicable period. The Board has reviewed OWCP’s 

calculation of the dual benefits that appellant received and finds that it properly determined that 

she received a $5,359.78 overpayment of compensation.

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA states: “Adjustment or recovery [of an overpayment] by the 

United States may not be made when incorrect payment has been made to an individual who is 

without fault and when adjustment or recovery would defeat the purpose of this subchapter or 

would be against equity and good conscience.”

10

Section 10.437 provides that 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.11

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. The 

 

9

See supra note 5.

10 5 U.S.C. § 8129(b).

11 20 C.F.R. § 10.437.
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information is also used to determine the repayment schedule, if necessary.12 Failure to submit 

the requested information within 30 days of the request shall result in denial of waiver.13

ANALYSIS -- ISSUE 2

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

compensation.

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.14 Appellant, 

however, had the responsibility to provide the appropriate financial information to OWCP.15

In its preliminary determination dated August 22, 2019, OWCP explained the importance 

of providing the completed overpayment questionnaire and financial information, including copies 

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

income and expenses. It advised appellant that it would deny waiver if she failed to furnish the 

requested financial information within 30 days. Appellant, however, did not submit a completed

Form OWCP-20 or submit any financial information 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.

Consequently, as appellant did not submit the information required under section 10.438 

of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the Board 

finds that OWCP properly denied waiver of recovery of the overpayment.16

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.17 Section 

10.441(a) of the regulations18 provides: 

“When an overpayment 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 same. If no refund 

 

12 Id. at § 10.438(a); see T.B., supra note 7; RalphP. Beachum, Sr., 55 ECAB 442 (2004).

13 Id. at § 10.438.

14 Id. at § 10.436.

15 Supra note 12.

16 See S.B., Docket No. 16-1795 (issued March 2, 2017).

17 See E.F., Docket No. 18-1320 (issued March 13, 2019); C.H.,Docket No. 18-0772 (issued November 14, 2018); 

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

18 20 C.F.R. § 10.441(a).
6

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 

any hardship.”

19

ANALYSIS -- ISSUE 3

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

deducting $578.80 from appellant’s continuing compensation payments every 28 days.

The record reflects that appellant received wage-loss compensation payments in the 

amount of $2,351.21 under FECA. Appellant, as noted, did not provide any relevant information 

for OWCP to consider in determining the amount to be withheld from her continuing 

compensation. OWCP gave this factor due regard to the relevant factors noted above in setting 

the rate of recovery.

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

properly required recovery of the overpayment by deducting $578.80 from her continuing 

compensation payments every 28 days.

CONCLUSION

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

compensation in the amount of $5,359.78 because she concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation for the period March 1, 2018 through 

August 17, 2019. The Board also finds that OWCP properly denied waiver of recovery of the 

overpayment and properly required recovery of the overpayment by deducting $578.80 from her

continuing compensation payments every 28 days.

 

19 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the October 25, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 14, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board