United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Sacramento, CA, Employer

__________________________________________

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Docket No. 21-1183

Issued: January 25, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 29, 2021 appellant, through counsel, filed a timely appeal from July 2 and 19, 2021 

merit decisions 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 July 19, 2021 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

ISSUES

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

overpayment of compensation in the amount of $24,801.33 for the period August 1, 2013 through 

October 10, 2020, for which she was without fault, because she concurrently received FECA wageloss compensation benefits 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 $250.00 from appellant’s continuing compensation payments every 28 days. 

FACTUAL HISTORY

This case has previously been before the Board on a different issue.4 The facts and 

circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are as follows.

On May 16, 2008 appellant, then a 56-year-old transportation security screening 

supervisor, filed a traumatic injury claim (Form CA-1) alleging that on September 7, 2007 she 

sustained posterior tibial tendon dysfunction of the left ankle standing on a cement floor while in 

the performance of duty.5 OWCP adjudicated her claim as an occupational disease and accepted 

left tibial tendinitis. Appellant sustained intermittent periods of disability until April 7, 2010, when 

she resumed modified work. On July 31, 2012 the employing establishment terminated her 

modified position. OWCP paid appellant wage-loss compensation on the periodic rolls, effective 

August 1, 2012. 

By decision dated September 26, 2013, OWCP reduced appellant’s compensation benefits 

effective that date after finding that she had the capacity to earn wages of $394.00 per week in the 

constructed position of surveillance system monitor. By decision dated July 3, 2014, an OWCP 

hearing representative affirmed the September 26, 2013 loss of wage-earning capacity (LWEC) 

determination. 

Appellant appealed to the Board. By decision dated February 2, 2015, the Board affirmed 

the July 3, 2014 decision.6 

On August 28, 2020 OWCP sent a FERS/SSA dual benefits form to SSA for completion. 

In a September 10, 2020 response, SSA provided its monthly age-related retirement benefit 

rates that appellant was entitled to with and without FERS from August 2013 until 

December 2019. It notified OWCP that, with FERS, she was entitled to a monthly payment of 

$1,346.40 effective August 2013, $1,366.50 effective December 2013, $1,389.70 effective 

December 2014, $1,393.90 effective December 2016, $1,421.70 effective December 2017, 

$1,461.40 effective December 2018, and $1,484.80 effective December 2019. Without FERS, 

4 Docket No. 14-1876 (issued February 2, 2015).

5 A claim for compensation (Form CA-7) dated August 18, 2009 indicates that appellant’s retirement coverage was 

under the Federal Employees’Retirement System (FERS). 

6

Supra note 4.
3

appellant was entitled to a monthly payment of $1,073.20 effective August 2013, $1,089.30 

effective December 2013, $1,107.70 effective December 2014, $1,111.10 effective 

December 2016, $1,133.20 effective December 2017, $1,164.90 effective December 2018, and 

$1,183.50 effective December 2019. 

OWCP completed a FERS offset overpayment calculation form on October 7, 2020. It 

calculated the amount that it should have offset from appellant’s wage-loss compensation for each 

period August 1, 2013 until October 10, 2020. OWCP found that, from August 1 through 

November 30, 2013, appellant received an overpayment of $1,098.80; from December 1, 2013 

through November 30, 2014, she received an overpayment of $3,335.54; from December 1, 2014 

through November 30, 2016, she received an overpayment of $6,795.89; from December 1, 2016 

through November 30, 2017, she received an overpayment of $3,402.92; from December 1, 2017 

through November 30, 2018, she received an overpayment of $3,471.51; from December 1, 2018 

through November 30, 2019, she received an overpayment of $3,567.77; and from December 1, 

2019 through October 10, 2020, she received an overpayment of $3,128.88. Based on these 

figures, it calculated the total overpayment amount of $24,801.33.

In an October 7, 2020 letter, OWCP informed appellant that it would begin deducting the 

portion of SSA age-related retirement benefits attributable to her federal service from her 

compensation benefits. It found that, with the SSA offset, she was entitled to net compensation 

every 28 days of $1,317.59. 

On January 11, 2021 OWCP issued a preliminary overpayment determination, finding that 

an overpayment of compensation in the amount of $24,801.33 had been created because appellant 

received wage-loss compensation payments for the period August 1, 2013 through October 10, 

2020 that had not been reduced to offset her SSA age-related retirement benefits attributable to her 

federal service. 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 payment 

method, and advised her that she could request waiver of recovery of the overpayment. It further 

requested that she provide supporting financial documentation, including copies of income tax 

returns, bank account statements, bills and canceled checks, pay slips, and any other records which 

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.

In an overpayment action request form dated January 29, 2021, appellant requested waiver 

of recovery of the overpayment and a prerecoupment hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

On February 6, 2021 appellant again requested a prerecoupment hearing and waiver of 

recovery of the overpayment, indicating that she had relied upon written information provided by 

SSA and OWCP. In an attached OWCP-20 form, she listed monthly income of $2,795.06 and 

monthly expenses of $1,014.00. Appellant did notsubmit the supporting financial documentation.

In an undated statement received by OWCP on April 27, 2021, counsel contended that an 

SSA offset did not apply in appellant’s case as she was receiving compensation based on a LWEC 

determination. He further contended that OWCP should have reduced the offset in proportion to 

the reduction in her wage-loss compensation due to the LWEC determination.
4

A telephonic hearing was held on April 28, 2021. 

By decision dated July 2, 2021, OWCP’s hearing representative finalized the preliminary 

overpayment determination, finding that appellant had received a $24,801.33 overpayment of 

compensation for the period August 1, 2013 through October 10, 2020 because OWCP failed to 

offset her compensation payments by the portion of her SSA age-related retirement benefits that 

were attributable to her federal service. He further found that she was without fault in the creation 

of the overpayment, but denied waiver of recovery of the overpayment as she had not provided 

documentation supporting her claimed expenses. OWCP’s hearing representative required 

recovery of the overpayment by deducting $325.00 from appellant’s continuing compensation 

payments every 28 days.

By decision dated July 19, 2021, OWCP again found that appellant had received a 

$24,801.33 overpayment of compensation for the period August 1, 2013 through October 10, 2020 

because OWCP failed to offset her compensation payments by the portion of her SSA age-related 

retirement benefits that were attributable to her federal service. It denied waiver of recovery of 

the overpayment and required recovery of the overpayment by deduction $250.00 from her 

continuing compensation payments every 28 days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA7 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.8 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.9

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.10 FECA Bulletin No. 97-09 states 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. 11

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $24,801.33 for the period August 1, 2013 through October 10, 

7

Supra note 2.

8

5 U.S.C. § 8102.

9

Id. at § 8116.

10 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August20, 2018).

11 FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B.,Docket No. 18-0795 (issued January 4, 2019).
5

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 case record establishes that appellant received SSA age-related retirement benefits 

beginning August 2013. OWCP paid her wage-loss compensation for total disability from 

August 1 until September 26, 2013 and paid her wage-loss compensation for partial disability 

based on her LWEC on the periodic rolls effective September 26, 2013. As noted, a claimant 

cannot receive FECA compensation for wage-loss and SSA age-related retirement benefits 

attributable to federal service for the same period without an appropriate offset.

12

 Accordingly, 

the Board finds that fact of overpayment has been established.13 

To determine the amount of the overpayment, the portion of SSA age-related retirement 

benefits 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 the SSA rates with FERS and without FERS for 

specific periods August 2013 through December 2019. OWCP set forth its calculations of the 

amount that should have been offset during each relevant period based on the information provided 

by SSA and determined that appellant received an overpayment in the amount of $24,801.33. The 

Board has reviewed OWCP’s calculation of dual benefits received by her for the period August 1, 

2013 through October 10, 2020 and finds that an overpayment of compensation in the amount of 

$24,801.33 was created.14

On appeal, counsel contends that the SSA offset did not apply because appellant was not 

receiving wage-loss compensation from OWCP because she was paid based on her LWEC. 

However, while appellant paid at a reduced rate due to the LWEC, the record establishes that she 

was in receipt of wage-loss compensation during the claimed period. Counsel further contends 

that the SSA offset should have been reduced proportionally to her LWEC. However, he failed to 

provide legal citations in support of this argument.15

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment must be recovered 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. 16

Recovery of an overpayment will defeat the purpose of FECA when such recovery would 

cause hardship to a currently or formerly entitled beneficiary 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 the beneficiary’s assets do 

12 See F.K., Docket No. 20-1609 (issued June24, 2021); A.C., Docket No. 18-1550 (issued February 21, 2019).

13 See L.K., Docket No. 20-1574 (issued June23, 2021); S.H., Docket No. 20-1157 (issued December 23, 2020).

14 See J.T., Docket No. 21-0010 (issued September 30, 2021); N.B., Docket No. 20-0727 (issued January 26, 2021).

15 Supra note 13.

16 5 U.S.C. § 8129. 
6

not exceed a specified amount as determined by OWCP. 17 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 $50.00.18 Also, 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.19 An individual’s liquid assets 

include, but are not limited to cash, the value of stocks, bonds, savings accounts, mutual funds, 

and certificate of deposits.20

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 in 

attempting to repay the debt or when an individual, in reliance on such payment or on notice that 

such payments would be made, gives up a valuable right or changes his or her position for the 

worse.21

ANALYSIS -- ISSUE 2

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

As OWCP found appellant not at fault in the creation of the overpayment, waiver must be 

considered, and repayment is still required unless adjustment or recovery of the overpa yment 

would defeat the purpose of FECA or be against equity and good conscience. 22 Appellant, 

however, has the responsibility to provide the appropriate financial information and documentation 

to OWCP.23

In its preliminary overpayment determination, dated January 11, 2021, OWCP requested 

that appellant provide a completed Form OWCP-20 and supporting financial information, 

including copies of income tax returns, bank account statements, bills and cancelled checks, pay 

slips, and any other records to support income and expenses. Appellant submitted a completed 

OWCP-20 form, but failed to provide the supporting financial documentation necessary for OWCP 

to determine if recovery of the overpayment would defeat the purpose of FECA or be against 

equity and good conscience.24 

17 20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base 

increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional 

dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400(2),(3) (September 2020).

18 Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 

(issued April 26, 2019).

19 See supra note 17at Chapter 6.400.4(a)(2) (September 2020).

20 Id. at Chapter 6.400.4(b)(3).

21 20 C.F.R. § 10.437(a)(b).

22 Id. at § 10.436.

23 Id. at § 10.438. See E.S., Docket No. 20-0919 (issued February 8, 2021).

24 J.C., Docket No. 20-1062 (issued January 4, 2021); E.M., Docket No. 19-0857 (issued December 31, 2019).
7

Accordingly, as appellant did not submit the required information required under 20 C.F.R. 

§ 10.438 of OWCP’s regulations to determine her eligibility for waiver, the Board finds that 

OWCP properly denied waiver of recovery of the overpayment.25

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. 26

Section 10.411 of OWCP’s regulations provides in pertinent part: 

“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 

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.”

27

ANALYSIS -- ISSUE 3

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

$250.00 from appellant’s continuing compensation payments every 28 days. 

As discussed, appellant did not provide the necessary financial documentation to support 

her reported income and expenses. The overpaid individual is responsible for providing 

information about income, expenses, and assets as specified by OWCP. 28 When an individual fails 

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

designed to collect the debt promptly and in full.29

As appellant did not submit the financial documentation to OWCP as requested, the Board 

finds that OWCP properly required recovery of the $24,801.33 overpayment of compensation at 

the rate of $250.00 every 28 days from her continuing compensation payments. 30

CONCLUSION

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

of compensation in the amount of $24,801.33 for the period August 1, 2013 through October 10, 

2020, for which she was without fault, because she concurrently received FECA wage -loss 

25 J.C., id.

26 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

27 Id. at § 10.441(a).

28 Id. at § 10.438.

29 E.M., Docket No. 19-0857 (issued December 31, 2019); supranote 17 at Chapter 6.500.2 (September 2018).

30 See J.A., Docket No. 19-1946 (issued July 13, 2020); E.K., Docket No. 18-0587 (issued October 1, 2018).
8

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 properly 

required recovery of the overpayment by deducting $250.00 from appellant’s continuing 

compensation payments every 28 days. 

ORDER

IT IS HEREBY ORDERED THAT the July 19, 2021 decision of the Office of Workers’

Compensation Programs is affirmed and the July 2, 2021 decision is affirmed as modified to reflect 

recovery of the overpayment. 

Issued: January 25, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board