United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.K., Appellant

and

U.S. POSTAL SERVICE, OZONE PARK 

CARRIER ANNEX, Brooklyn, NY, Employer

__________________________________________

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Docket No. 23-0358

Issued: August 23, 2023

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 9, 2023 appellant, through counsel, filed a timely appeal from a September 6, 

2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the September 6, 2022 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Procedureprovides: “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 $50,681.78, for the period March 1, 2020 through 

July 16, 2022, 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 

$398.31 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On July 9, 2007 appellant, then a 53-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that on June 28, 2007 she sustained injuries to her right shoulder/arm, left knee, 

and left ankle when she tripped over a postal container and fell to the floor while in the performance 

of duty. She stopped work on the same date. On the reverse side of the form, appellant’s 

supervisor checked a box indicating that appellant was under the Civil Service Retirement System. 

After development of the evidence, OWCP accepted appellant’s claim for sprains of the right 

shoulder/upper arm and left knee/leg, internal derangement of the left knee, and medial meniscus 

tear of the left knee. It paid her wage-loss compensation on the supplemental rolls, effective 

August 13, 2007, and on the periodic rolls, effective August 1, 2010. 

In an October 25, 2017 letter to OWCP, an employing establishment official indicated that 

a recent review of the agency file indicated that appellant was under the Federal Employees 

Retirement System (FERS). 

On July 6, 2022 OWCP received from SSA a FERS/SSA dual benefits form, which 

indicated that appellant received SSA age-related retirement benefit benefits since March 1, 2020. 

SSA provided age-related retirement benefit rates with and without a FERS offset from March 1, 

2020 as follows: beginning March 1, 2020, the SSA rate with FERS was $1,921.80 and without 

FERS was $193.10; beginning December 1, 2020, the SSA rate with FERS was $1,946.70 and 

without FERS was $195.60; and beginning December 1, 2021, the SSA rate with FERS was 

$2,061.50 and without FERS was $207.10. 

On July 22, 2022 OWCP completed a FERS offset overpayment calculation worksheet, 

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

overpayment from March 1, 2020. It determined that: for the period March 1 through 

November 30, 2020 appellant received an overpayment of $15,672.25; for the period December 1, 

2020 through November 30, 2021 appellant received an overpayment of $21,070.93; and for the 

period December 1, 2021 through July 16, 2022 appellant received an overpayment of $13,938.54. 

The total overpayment was determined to be $50,681.72.

On July 25, 2022 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.
3

On July 29, 2022 OWCP issued a preliminary overpayment determination, finding that 

appellant received an overpayment of compensation in the amount of $50,681.72, for the period 

March 1, 2020 through July 16, 2022, 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, expenses, and assets. Additionally, OWCP provided an overpayment action request form 

and notified appellantthat, 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 August 25, 2022 OWCP received an overpayment action request form, signed on the 

same date, in which appellant requested waiver of recovery of the overpayment. It also received 

a Form OWCP-20 in which she listed $3,790.00 in monthly income, $6,134.00 in monthly 

expenses, and $800.00 in assets. Appellant did not submit any supporting financial documentation. 

By decision dated September 6, 2022, OWCP finalized the preliminary overpayment 

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

$50,681.72, for the period March 1, 2020 through July 16, 2022, because she concurrently 

received SSA retirement benefits based on her age and attributable to her federal service, without 

an appropriate offset being made, while she concurrently received FECA compensation benefits. 

It further found that she was without fault in the creation of the overpayment but denied waiver of 

recovery because she failed to submit financial information supporting the provided figures for 

monthly income, monthly expenses, and assets. OWCP required recovery of the overpayment by 

deducting $398.31 from appellant’s 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.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

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 provides that FECA 

benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA 

4

5 U.S.C. § 8102.

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 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.7

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $50,681.72, for the period March 1, 2020 through July 16, 2022, 

for which she was without fault, because she concurrently received FECA wage-loss compensation 

and SSA age-related retirement benefits, without an appropriate offset.

As previously noted, a claimant cannot concurrently receive FECA wage -loss 

compensation and SSA age-related retirement benefits attributable to federal service for the same 

period.8 The evidence of record establishes that appellant had concurrently received wage -loss 

compensation benefits and SSA age-related retirement benefits that were attributable to federal 

service during the period March 1, 2020 through July 16, 2022, without an appropriate offset. 

Consequently, the fact of overpayment has been established.9

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

documentationfrom SSA with respect to the specific SSA age-related retirement benefitsthat were

attributable to federal service. The SSA provided its age-related retirement benefits rates with 

FERS and without FERS during the specific period March 1, 2020 through July 16, 2022. OWCP 

provided its calculations for each relevant period based on the information provided by SSA and 

determined that appellant received an overpayment in the amount of $50,681.72. 

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

period March 1, 2020 through July 16, 2022, and finds that she received an overpayment of 

compensation in the amount of $50,681.72.

10

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.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 

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

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

February 21, 2019).

9

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

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

11 5 U.S.C. § 8129.
5

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.12

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. 13

In its preliminary overpayment determination dated July 29, 2022, OWCP requested a 

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 appellant’s reported income and expenses. It advised her that it would deny waiver of 

recovery of the overpayment if she failed to furnish the requested financial information within 30 

days. Appellant provided figures for monthly income, monthly expenses, and assets, but she did 

not provide documentation supporting these figures. She had the responsibility to provide

supporting such financial information to OWCP,

14 but she failed to do so. 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.15

Consequently, as appellant did not submit the supporting financial information required 

under section 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for 

waiver, 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 

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 

12 20 C.F.R. § 10.438.

13 5 U.S.C. § 8129.

14 Supra note 12.

15 Supra notes 12 and 13.

16 Id. at § 10.438; see S.A., Docket No. 20-0279 (issued June 8, 2021); M.B., Docket No. 19-1108 (issued 

October 19, 2020).

17 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).
6

payments, the rate of compensation, the financial circumstances of the individual, and any other 

relevant factors, so as to minimize any hardship.”

18

 

When an individual fails to provide requested financial information, OWCP should follow 

minimum collection guidelines designed to collect the debt promptly and in full. 19 The Federal 

(FECA) Procedure Manual provides that, in these instances, OWCP should set the rate of recovery 

at 25 percent of the 28-day net compensation amount until the balance of the overpayment is paid 

in full.20 

ANALYSIS -- ISSUE 3

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

$398.31 from appellant’s continuing compensation payments every 28 days.

While appellant requested waiver of recovery of the overpayment, she did not provide the 

requested supporting financial documentation. OWCP’s regulations provide that the overpaid 

individual is responsible for providing information about income, expenses, and assets as specified 

by OWCP, including supporting financial documentation.

21

Appellant’s 28-day net compensation amount effective July 17, 2002 and continuing 

through OWCP’s September 6, 2022 final overpayment determination was $1,593.23. The Board 

notes that 25 percent of $1,593.23 is $398.31. The Board, therefore, finds that OWCP properly 

followed minimum collection guidelines and required recovery of the overpayment by deducting 

$398.31 from appellant’s continuing compensation payments every 28 days.

CONCLUSION

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

of compensation in the amount of $50,681.72, for the period March 1, 2020 through July 16, 2022, 

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 waiver of recovery of the overpayment, and that it properly required 

recovery of the overpayment by deducting $398.31 from her continuing compensation payments

every 28 days.

18 20 C.F.R. § 10.441; see A.F., Docket No. 19-0054 (issued June12, 2019); Donald R. Schueler, 39 ECAB 1056, 

1062 (1988).

19 See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).

20 See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.8c(1) 

(September 2018); D.H., Docket No. 20-1064 (issued December 14, 2020); M.S., Docket No. 18-0740 (issued 

February 4, 2019).

21 20 C.F.R. § 10.438. See also F.B., Docket No. 21-0680 (issued February 23, 2022).
7

ORDER

IT IS HEREBY ORDERED THAT the September 6, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 23, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board