United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Colby, WI, Employer

__________________________________________

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Docket No. 22-0464

Issued: April 18, 2023

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 3, 2022 appellant filed a timely appeal from an August 17, 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 $82,709.90, for the period December 27, 2005 

through January 30, 2021, for which she was without fault, because she concurrently received 

FECA wage-loss compensation and Social Security Administration (SSA) age-related retirement 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that OWCP received additional evidence following the August 17, 2021 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

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 $636.26 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On November 14, 2005 appellant, then a 68-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on November 9, 2005 she sustained injuries to her face, neck, 

collar bone, ribs, and back when her employing establishment vehicle was rear-ended and she was 

ejected from her postal vehicle while in the performance of duty. OWCP accepted the claim for 

mechanical complications of tracheostomy; closed fracture of ribs; fracture of other facial bones;

closed fracture of the nasal bone; closed fracture of lumbar vertebra, without spinal cord injury;

closed fracture of larynx and trachea; displacement of cervical intervertebral disc without 

myelopathy; closed fracture of mandible; scar conditions and fibrosis of skin; ptosis of the eyelid 

and nose, right; adhesive capsulitis of shoulder, right; and superficial injury of the eyelids and 

periocular area. It paid appellant wage-loss compensation on the supplemental rolls effective

December 27, 2005 and on the periodic rolls effective August 6, 2006. 

On September 10, 2020 OWCP contacted SSA to obtain the appropriate information to 

determine whether an offset of compensation benefits was required. 

On October 1, 2020 OWCP received from SSA a completed Federal Employees 

Retirement System (FERS)/SSA dual benefits form, dated September 18, 2020, which indicated 

that appellant had been in receipt of SSA age-related retirement benefits since March 1, 2002. The 

form reported appellant’s SSA age-related retirement benefit rates with and without a FERS offset: 

beginning March 2002, the SSA rate with FERS was $871.90 and without FERS was $643.30;

beginning December 2002, the SSA rate with FERS was $884.10 and without FERS was $655.30;

beginning January 2003, the SSA rate with FERS was $917.20 and without FERS was $655.30;

beginning December 2003, the SSA rate with FERS was $936.50 and without FERS was $669.00;

beginning January 2004, the SSA rate with FERS was $966.30 and without FERS was $669.00;

beginning December 2004, the SSA rate with FERS was $992.40 and without FERS was $687.00;

beginning January 2005, the SSA rate with FERS was $1,025.90 and without FERS was $687.00;

beginning December 2005, the SSA rate with FERS was $1,067.90 and without FERS was 

$715.10; beginning January 2006, the SSA rate with FERS was $1,105.40 and without FERS was 

$715.10; beginning December 2006, the SSA rate with FERS was $1,141.80 and without FERS 

was $738.60; beginning December 2007, the SSA rate with FERS was $1,168.10 and without 

FERS was $755.60; beginning December 2008, the SSA rate with FERS was $1,235.70 and 

without FERS was $779.30; beginning December 2009, the SSA rate with FERS was $1,235.70 

and without FERS was $779.30; beginning December 2010, the SSA rate with FERS was 

$1,235.70 and without FERS was $779.30; beginning December 2011, the SSA rate with FERS 

was $1,280.20 and without FERS was $828.00; beginning December 2012, the SSA rate with 

FERS was $1,301.90 and without FERS was $842.00; beginning December 2013, the SSA rate 

with FERS was $1,321.30 and without FERS was $854.00; beginning December 2014, the SSA 

rate with FERS was $1,343.80 and without FERS was $869.00; beginning December 2015, the 

SSA rate with FERS was $1,343.80 and without FERS was $869.00; beginning December 2016, 

the SSA rate with FERS was $1,347.70 and without FERS was $871.50; beginning 

December 2017, the SSA rate with FERS was $1,374.70 and without FERS was $889.00;

beginning December 2018, the SSA rate with FERS was $1,413.10 and without FERS was 
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$913.80; and beginning December 2019, the SSA rate with FERS was $1,435.60 and without 

FERS was $928.40. 

In a February 18, 2021 letter, OWCP informed appellant that it would begin deducting the 

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

periodic compensation benefits, effective February 27, 2021. It noted that her SSA benefit without 

FERS was $928.40 and that her federal service increased her monthly Social Security benefit by 

$507.20. OWCP explained that the amount of FERS/SSA dual benefits to be deducted from 

appellant’s FECA benefits was $507.20 per month, or $468.18, every 28, days. It noted that her

new net FECA wage-loss compensation rate would be $2,935.83. 

On February 24, 2021 OWCP issued a preliminary overpayment determination, finding 

that, an overpayment of compensation in the amount of $94,754.17, had been created because it 

had failed to reduce appellant’s wage-loss compensation payments for the period March 1, 2002 

through November 30, 2020, to offset her SSA age-related retirement benefits that were 

attributable to federal service. It determined that she was without fault in the creation of the 

overpayment because the evidence did not support that she was aware that the receipt of full SSA 

retirement benefits concurrent with the disability/wage-loss compensation would result in an 

overpayment. OWCP requested that appellant submit a completed overpayment recovery 

questionnaire (Form OWCP-20) to determine a reasonable repayment method, and advised that 

she could request waiver of the overpayment. It further requested that she 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. Additionally, OWCP further 

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. 

On March 15, 2021 OWCP received a Form OWCP-20, which appellant completed on 

March 4, 2021. Appellant listed her income, expenses, and assets. She also submitted detailed 

notes summarizing her expenses from 2005 to 2020. OWCP received financial documents

supporting appellant’s reported income, expenses, and assets. 

By decision dated August 17, 2021, OWCP finalized the preliminary overpayment 

determination. It noted that, an error occurred in the preliminary overpayment determination, as 

the preliminary calculation was for the time period 2002 through 2021; however, appellant began 

receiving wage-loss compensation in 2005. OWCP completed a FERS offset overpayment 

calculation worksheet, determined the 28-day FERS offset amount for the days in each period, and 

calculated that she had received an overpayment of compensation in the amount of $82,709.90 for 

the period December 27, 2005 to through January 30, 2021, because she concurrently received 

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

offset.

The offset overpayment calculation worksheet showed that: for the period December 1, 

2005 through January 1, 2006, the overpayment amount was $58.15; for the period January 1 

through December 1, 2006, the overpayment amount was $4,297.59; for the period December 1, 

2006 through December 1, 2007, the overpayment amount was $4,851.69; for the period 

December 1, 2007 through December 1, 2008, the overpayment amount was $4,977.20; for the 

period December 1, 2008 through December 1, 2009, the overpayment amount was $5,251.19; for 

the period December 1, 2009 through December 1, 2010, the overpayment amount was $5,251.19;

for the period December 1, 2010 through December 1, 2011, the overpayment amount was 
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$5,251.19; for the period December 1, 2011 through December 1, 2012, the overpayment amount 

was $5,456.22; for the period December 1, 2012 through December 1, 2013, the overpayment 

amount was $5,533.96; for the period December 1, 2013 through December 1, 2014, the 

overpayment amount was $5,616.99; for the period December 1, 2014 through December 1, 2015, 

the overpayment amount was $5,713.25; for the period December 1, 2015 through December 1, 

2016, the overpayment amount was $5,728.91; for the period December 1, 2016 through

December 1, 2017, the overpayment amount was $5,730.10; for the period December 1, 2017

through December 1, 2018, the overpayment amount was $5,844.41; for the period December 1, 

2018 through December 1, 2019, the overpayment amount was $6,008.06; and for the period 

December 1, 2019 through January 30, 2021, the overpayment amount was $7,139.82, resulting in 

a total overpayment amount of $82,709.90, for the period December 27, 2005 through

January 30, 2021.

OWCP also found that appellant was without fault in the creation of the overpayment, but

denied waiver of recovery of the overpayment. It noted that, as of the date of the decision, she had 

filed an incomplete, unsigned, and undated overpayment action request form in which she did not 

list her income, or provide the necessary financial documents to support her income, debt, or 

monthly expenses. OWCP required recovery of the overpayment by deducting $636.46 every 28 

days from appellant’s continuing compensation payments. 

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.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 any SSA age-related retirement benefits that are 

attributable to the employee’s federal service.5 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.6

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $82,709.90, for the period December 27, 2005 through 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018); L.J., 59 ECAB 264 (2007).

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

January 30, 2021, for which she was without fault, because she concurrently received FECA wageloss compensation and SSA age-related retirement benefits, without an appropriate offset.7

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

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

her 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, without an 

appropriate offset.

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 The information provided by SSA established that, during the period 

December 27, 2005 through January 30, 2021, appellant received SSA age-related retirement 

benefits that were attributable to federal service while she 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 SSA age-related retirement benefits that were attributable to 

appellant’s federal service. SSA provided appellant’s age-related retirement benefit rates with 

FERS and without FERS for specific periods December 27, 2005 through January 30, 2021. 

OWCP provided its calculations for each relevant period based on the SSA worksheet which show 

that she received an overpayment in the amount of $82,709.90. The Board thus finds that appellant

received prohibited dual benefits for the period December 27, 2005 through January 30, 2021, 

totaling $82,709.90.

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.9 

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

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.10

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 

7 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).

8 20 C.F.R. § 10.421(d); see S.M., supra note 5; L.J., supra note 5.

9 5 U.S.C. § 8129(a)-(b).

10 L.S., 59 ECAB 350 (2008).
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from data provided by the Bureau of Labor Statistics.11 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 $50.00.12

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.13 OWCP’s procedures 

provide that, to establish that a valuable right has been relinquished, an individual must 

demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and 

that his or her action was based primarily or solely on reliance on the payment(s) or on the notice 

of payment.14

ANALYSIS -- ISSUE 2

The Board finds that this case is not in posture for decision with regard to 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.15

In the final overpayment decision dated August 17, 2021, OWCP found that appellant had 

submitted an incomplete overpayment action Form OWCP-20, noting that she did not list her 

income, or provide the necessary financial documentation to support her income, debt, and 

monthly expenses. The Board, however, finds that she did list her income on the Form OWCP20, and she also provided detailed summaries of her expenses from 2005 through 2020. 

In the case of William A. Couch,

16 the Board held that, when adjudicating a claim, OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued.

In its final overpayment decision dated August 17, 2021, OWCP failed to consider and 

address all of the financial evidence submitted by appellant in support of waiver of recovery of the 

11 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(3) (September 2020).

12 Id. at Chapter 6.400.4a(3) (September 2020).

13 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

14 FECA Procedure Manual, supra note 11 at Chapter 6.400.4c(3) (September 2020).

15 20 C.F.R. § 10.436.

16 41 ECAB 548 (1990); see also S.H., Docket No. 19-1582 (issued May 26, 2020); R.D., Docket No. 17-1818 

(issued April 3, 2018).
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overpayment. As such, it failed to follow its procedures by properly discussing all of the evidence 

of record. It is crucial that OWCP address all evidence relevant to the subject matter properly 

submitted prior to the issuance of its final decision, as the Board’s decisions are final with regard 

to the subject matter appealed.17

The Board thus finds that this case is not in posture for decision.

18

 On remand, OWCP 

shall review all evidence of record regarding waiver and recovery of the overpayment. It shall 

thereafter issue a new preliminary overpayment determination. Following this, and such other 

further development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

of compensation in the amount of $82,709.90, for the period December 27, 2005 through 

January 30, 2021, for which she was without fault, because she concurrently received FECA wageloss compensation and SSA age-related retirement benefits, without an appropriate offset. The 

Board further finds that the case is not in posture for decision regarding waiver and recovery of 

the overpayment. 

17 See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also 

William A. Couch, id.

18 In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot. 
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ORDER

IT IS HEREBY ORDERED THAT the August 17, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: April 18, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy 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