United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

O.D., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Albuquerque, NM, Employer

__________________________________________

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Docket No. 21-0897

Issued: May 5, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 4, 2021 appellant filed a timely appeal from an April 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.2

ISSUES

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

overpayment of compensation in the amount of $25,600.91 for the period January 1, 2019 through 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

January 30, 2021, for which he was without fault, because he concurrently received FECA wageloss 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 

$685.34 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On September 24, 2008 appellant, then a 55-year-old border patrol officer, filed a traumatic 

injury claim (Form CA-1) alleging that on September 18, 2008 he sustained a right knee anterior 

cruciate ligament (ACL) sprain when he stepped out of his service vehicle to the street curb while 

in the performance of duty. He stopped work on September 23, 2008. Appellant’s supervisor 

noted that appellant’s retirement system coverage was under the Federal Employees Retirement 

System (FERS). On November 4, 2008 OWCP accepted the claim for right knee medial meniscus 

tear. It subsequently expanded the acceptance of the claim to include right venous thrombosis of 

other specified veins, right knee derangement of meniscus, right lower osteoarthrosis, arthropathy 

of the right lower leg, and unspecified complication of internal orthopedic implant.3 OWCP paid 

appellant wage-loss compensation on the periodic rolls effective December 21, 2008. 

On January 12, 2021 OWCP forwarded a FERS/SSA dual benefits form to SSA to obtain 

information as to whether an offset of compensation benefits was required. 

On January 21, 2021 OWCP received from SSA a completed FERS/SSA dual benefits 

form dated January 21, 2021, which indicated that appellant had been in receipt of SSA age-related 

retirement benefits since January 1, 2019. The form showed appellant’s SSA age-related 

retirement benefit rates with and without a FERS offset. Beginning January 1, 2019, the SSA rate 

with FERS was $1,848.00 and without FERS was $837.70; beginning December 1, 2019, the SSA 

rate with FERS was $1,877.50 and without FERS was $851.00; and beginning December 1, 2020, 

the SSA rate with FERS was $1,901.80 and without FERS was $862.10.

OWCP completed a FERS offset computation on January 28, 2021. The form revealed 

that the FERS offset each month was $1,039.70, and every 28 days was $959.72.

In a January 28, 2021 letter, OWCP informed appellant that it would begin deducting the 

portion of SSA age-related retirement benefits attributable to his federal service from his 28-day 

periodic compensation benefits, effective January 31, 2021. It noted that his SSA age-related 

retirement benefit without FERS was $862.10. OWCP explained that the amount of FERS/SSA 

dual benefits to be deducted from appellant’s FECA benefits was $1,039.70 per month, or $959.72 

every 28, days, and that his new net compensation benefit every 28 days would be $2,685.42.

On February 1, 2021 OWCP issued a preliminary overpayment determination, finding that 

an overpayment of compensation in the amount of $25,600.91 had been created for the period 

January 1, 2019 through January 30, 2021 because appellant concurrently received FECA wage3 Appellant underwent OWCP-authorized right knee arthroscopy with debridement on November 5, 2008, total 

knee replacement on September 28, 2009, revision of total knee arthroplasty with open reduction and internal fixation 

of proximal tibia fracture on August 27, 2010, and revision of total knee replacement on May 10, 2018. 
3

loss compensation and SSA age-related retirement benefits without an appropriate offset. It

determined that he was without fault in the creation of the overpayment. OWCP requested that 

appellantsubmit a completed overpayment recovery questionnaire (Form OWCP-20) to determine 

a reasonable repayment method and advised him that he could request a waiver of the 

overpayment. It further requested that he provide supporting financial documentation, including 

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

support income and expenses. OWCP provided an overpayment action request form and notified 

appellant that, within 30 days of the date of the letter, he could request a telephone conference, a 

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

OWCP included a FERS offset overpayment calculation which determined the 28-day 

FERS offset amount for the days in each period and computed a total overpayment amount of 

$25,600.91. The offset calculation worksheet indicated that from January 1 through November 30, 

2019, appellant received an overpayment in the amount of $11,124.40; from December 1, 2019 

through November 30, 2020, appellant received an overpayment in the amount of $12,385.68; and 

from December 1, 2020 through January 30, 2021, appellant received an overpayment in the 

amount of $2,090.83. The total overpayment amounted to $25,600.91.

No response to the preliminary overpayment determination was received.

By decision dated April 5, 2021, OWCP finalized the preliminary overpayment 

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

of $25,600.91, for the period January 1, 2019 through January 30, 2021, because he concurrently 

received SSA age-related retirement benefits and FECA wage-loss compensation benefits without 

an appropriate offset. It also found that he was without fault in the creation of the overpayment 

butdenied waiver of recovery of the overpayment. OWCP noted that as of the date of the decision, 

no response had been received to the preliminary overpayment determination and appellant had 

not requested a waiver. It required recovery of the overpayment by deducting $685.34 every 28 

days from his continuing compensation payments. 

LEGAL PRECEDENT

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 that OWCP 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 states that FECA 

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see M.R., Docket No. 20-1622 (issued June 30, 2021); S.M., Docket No. 17-1802 (issued 

August 20, 2018); L.J., 59 ECAB 264 (2007).
4

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. 7

ANALYSIS

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

of compensation in the amount of $25,600.91, for which he was without fault, because he 

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

the period January 1, 2019 through January 30, 2021, without an appropriate offset.8

The evidence of record indicates that, while appellant was receiving compensation for 

wage-loss under FECA, he also was receiving SSA age-related retirement benefits based upon his

federal service. A claimant cannot receive both compensation for wage-loss under FECA and SSA 

age-related retirement benefits attributable to federal service for the same period. 9 The information 

provided by SSA established that during the period from January 1, 2019 through January 30, 

2021, appellant received SSA age-related retirement benefits that were attributable to federal 

service while he also received FECA benefits that were not reduced by the appropriate offset. 

Consequently, the fact of overpayment has been established.

To determine the amount of the overpayment, the portion of SSA’s benefits that were 

attributable to federal service must be calculated. OWCP received documentation from SSA with 

respect to the specific amount of appellant’s SSA age-related retirement benefits that were 

attributable to federal service. SSA provided its benefit rates with FERS and without FERS for 

specific periods from January 1, 2019 through January 30, 2021. OWCP provided its calculations 

for each relevant period based on the SSA worksheet which show that appellant received an 

overpayment in the amount of $25,600.91. The Board thus finds that appellant received prohibited 

dual benefits for the period January 1, 2019 through January 30, 2021, totaling $25,600.91.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an individual who is without fault in creating or 

accepting an overpayment is still subject to recovery of the overpayment, unless adjustment or 

recovery would defeat the purpose of FECA or would be against equity and good conscience. 10 

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

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

8 P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020); 

A.F., Docket No. 19-0054 (issued June 12, 2019).

9

20 C.F.R. § 10.421(d); see S.M., supra note 6; L.J., supra note 6.

10 5 U.S.C. § 8129(a)-(b).
5

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.11

Section 10.436 of OWCP’s implementing regulations provides that recovery of an 

overpayment would defeat the purpose of FECA if such recovery would cause hardship 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 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.12 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. 13

Section 10.437 of OWCP’s implementing regulations 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. 14

OWCP’s regulations provide 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 information is also used to 

determine the repayment schedule, if necessary.15 Failure to submit the requested information 

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

16

ANALYSIS -- ISSUE 2

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

11 L.S., 59 ECAB 350 (2008).

12 20 C.F.R. § 10.436. OWCP’s procedures provide that the 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. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,

Chapter 6.400.4a(2) (September 2020).

13 Federal (FECA) Procedure Manual, id. at Chapter 6.400.4c(3) (September 2020).

14 20 C.F.R. § 10.437; see J.R., Docket No. 21-0485 (issued December 10, 2021); E.H.,Docket No. 18-1009 (issued 

January 29, 2019).

15 20 C.F.R. § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16 Id. at § 10.438.
6

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. 17

In its preliminary overpayment determination dated February 1, 2021, OWCP requested 

that appellant complete a Form OWCP-20 and provide supporting financial documentation, 

including copies of income tax returns, bank account statements, bills, pay slips, and any other 

records to support income and expenses. It advised him that it would deny waiver of recovery if 

he failed to furnish the requested financial information within 30 days. Appellant, however, did 

not complete the Form OWCP-20 or otherwise submit the 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, OWCP properly denied waiver of recovery of the overpayment. 18

LEGAL PRECEDENT -- ISSUE 3

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.”

19

 When an individual 

fails to provide requested information on income, expenses, and assets, OWCP should follow 

minimum collection guidelines. The Federal (FECA) Procedure Manual provides that, in these 

instances, OWCP should set the rate of repayment 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 recovery of the overpayment by deducting 

$685.34 every 28 days from appellant’s continuing compensation payments.

OWCP provided appellant a Form OWCP-20 with its February 1, 2021 preliminary 

overpayment determination and afforded him the opportunity to provide appropriate financial 

information and documentation to OWCP.21 Appellant did not complete a Form OWCP-20 or 

provide the necessary financial documentation to support his income and expenses prior to the 

April 5, 2021 final overpayment decision. The overpaid individual is responsible for providing 

17 Id.

18 Id.

19 20 C.F.R. § 10.441.

20 Federal (FECA) Procedure Manual, supranote 12at 6.500.8(c)(1) (September 2018).

21 20 C.F.R. § 10.438.
7

information about income, expenses, and assets as specified by OWCP. 22 When an individual fails 

to provide requested financial information, OWCP shall follow minimum collection guidelines 

designed to collect the debt promptly and in full.23 The Board, therefore, finds that OWCP 

properly required recovery of the overpayment from appellant’s continuing compensation 

payments at the rate of $685.34 every 28 days.

CONCLUSION

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

of compensation in the amount of $25,600.91, for which he was without fault, because he 

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

the period January 1, 2019 through January 30, 2021, without an appropriate offset. The Board 

also finds that OWCP properly denied waiver of recovery of the overpayment; and properly 

required recovery of the overpayment by deducting $685.34 from appellant’s continuing 

compensation payments every 28 days.

22 Id. at § 10.438(a); see M.S., Docket No. 18-0740 (issued February 4, 2019).

23 See M.S., Docket No. 20-1261 (issued June 10, 2021); A.S., Docket No. 19-0171 (issued June12, 2019); 

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, supra note 12 at Chapter 6.400.3 

(September 2020).
8

ORDER

IT IS HEREBY ORDERED THAT the April 5, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 5, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board