United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

San Diego, CA, Employer

__________________________________________

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Docket No. 22-0281

Issued: September 26, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 14, 2021 appellant filed a timely appeal from a September 22, 2021 merit 

decision and a November 30, 2021 nonmerit 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 to consider the merits of this case.

1 The Board notes that, following the November 30, 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

5 U.S.C. § 8101 et seq.
2

ISSUES

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

of compensation in the amount of $24,839.413for the period July 1, 2019 through August 14, 

2021, for which she was without fault, because she concurrently received FECA wage-loss 

compensation benefits and Social Security Administration (SSA) age-related retirement benefits,

without an appropriate offset; (2) whether it properly denied waiver of recovery of the 

overpayment; (3) whether OWCP properly required recovery of the by deducting $909.00 from 

appellant’s continuing compensation payments every 28 days; and (4) whether it properly denied

appellant’s request for reconsideration, finding that it was untimely filed and failed to demonstrate

clear evidence of error.

FACTUAL HISTORY

On October 26, 2000 appellant, then a 47-year-old special agent, filed a traumatic injury 

claim (Form CA-1) alleging that on October 16, 2000 she injured her back when she slipped and 

fell when walking down a ramp while in the performance of duty. She did not initially stop work. 

OWCP accepted the claim for lumbosacral sprain. It later expanded acceptance of the claim to 

include herniated disc at L4-5 and authorized surgery.

Appellant stopped work on July 25, 2001 due to the authorized spine surgery and OWCP 

paid wage-loss compensation on the daily rolls beginning on that date. It paid wage-loss 

compensation benefits on the periodic rolls beginning August 25, 2021.4

In a July 6, 2015 letter, OWCP advised appellant to notify it upon her receipt of SSA 

retirement benefits. It also advised appellant that section 8116(d)(2) of FECA (5 U.S.C. 

§ 8116(d)(2)) required that a claimant’s continuing compensation benefits be reduced if he or she 

began receiving SSA retirement benefits based on his or her age and federal service under the 

Federal Employees Retirement System (FERS). OWCP noted that it was notifying appellant of 

this requirement as she was approaching 62 years of age, the minimum age at which an individual 

is eligible to receive SSA retirement benefits. It further noted that failure to report receipt of such 

retirement benefits to OWCP could result in an overpayment of compensation, which could be 

subject to recovery. Consequently, if appellant had been approved for SSA retirement benefits, or 

were currently receiving SSA retirement benefits, she was to contact OWCP immediately so that 

it could begin the process of making any necessary adjustments to her compensation benefits.

On August 4, 2021 OWCP forwarded to SSA a FERS/SSA dual benefits calculation form. 

It listed the computation period as July 13, 2002 to present. On August 11, 2021 SSA completed 

the form and indicated that appellant had received SSA age-related retirement benefits effective 

July 2019. The FERS/SSA dual benefits form indicated that beginning July 2019, the SSA rate 

3 OWCP’s claims examiner indicated that the overpayment was in the amount of $24,839.14; however, this appears 

to be a typographical error as the record supports that the overpayment totaled $24,839.41.

4 By decision dated September 26, 2003, OWCP reduced appellant’s wage-loss compensation effective October 5, 

2003 as the constructed position of probation officer represented her wage-earning capacity. It determined that she 

retained a 30 percent wage-earning capacity.
3

without a FERS offset was $1,925.90 and with a FERS offset was $971.40; beginning 

December 2019, the SSA rate without a FERS offset was $1,956.70 and with a FERS offset was 

$986.90; and beginning December 2020, the SSA rate without a FERS offset was $1,982.10 and 

with a FERS offset was $999.70.

On August 16, 2021 OWCP prepared a FERS offset overpayment calculation worksheet,

based on the form SSA completed, wherein it noted the calculation of appellant’s overpayment 

from July 1, 2019 through August 14, 2021. It determined that, during the period July 1 through 

November 30, 2019, she received an overpayment in the amount of $4,814.46; for the period 

December 1, 2019 through November 30, 2020, she received an overpayment in the amount of 

$11,701.54; and for the period December 1, 2020 through August 14, 2021, she received an 

overpayment in the amount of $8,323.41. The total overpayment was determined to be 

$24,839.41.

In a letter dated August 17, 2021, OWCP notified appellant that she had been receiving a 

prohibited dual benefit. It noted that the SSA had confirmed that a portion of her SSA age-related 

retirement benefits were attributed to her years of federal service as an employee under FERS and 

that portion required an offset of her FECA compensation benefits, in the amount of $982.40 every 

28 days. OWCP indicated that, to account for her SSA offset, appellant’s FECA wage-loss 

compensation would be adjusted to reflect a new net compensation amount of $3,635.93 effective 

August 15, 2021.

On August 19, 2021 OWCP issued a preliminary overpayment determination, finding that 

an overpayment of compensation in the amount of $24,839.41 had been created because the 

FERS/SSA offset was not applied to payments for the period July 1, 2019 through August 14, 2021

creating a prohibited dual benefit. It determined that appellant was without fault in the creation of 

the overpayment. OWCP requested that she submit a completed overpayment recovery 

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

she could request waiver of recovery of the overpayment. It further 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 provided an 

overpayment action request form and further notified her that, within 30 days of the date of the 

letter, she could contest the overpayment and request a telephone conference, a final decision based 

on the written evidence, or a prerecoupment hearing.5 

On August 24, 2021 OWCP received appellant’s overpayment action request form. 

Appellant requested that OWCP make a decision based on the written evidence. She further 

requested waiver because she was found to be without fault in the creation of the overpayment. 

Appellant provided a letter asserting that it would be unfair if she was penalized for making 

decisions while relying on information provided to her by the government. The remaining three

5

In an August 24, 2021 memorandum of telephone call (Form CA-110), appellant indicated that she did not want 

to complete the financial section of the OWCP-20 as she was not claiming hardship, she was claiming that she had 

informed OWCP and therefore, was without fault.
4

pages of documents submitted were illegible. A completed Form OWCP-20 and financial 

documentation were not received.

By decision dated September 22, 2021, OWCP finalized the August 14, 2021 preliminary 

overpayment determination that appellant had received an overpayment of compensation in the 

amount of $24,839.41 because it had failed to offset her compensation payments for the period 

July 1, 2019 through August 14, 2021 by the portion of her SSA benefits that were attributable to 

federal service. It further found that she was without fault in the creation of the overpayment, but 

denied waiver of recovery of the overpayment because the evidence of record was insufficient to 

establish that recovery of an overpayment would defeat the purpose of FECA or would be against 

equity and good conscience. OWCP required recovery of the overpayment by deducting $909.00 

every 28 days from appellant’s continuing compensation payments.

On October 4, 2021 appellant again requested waiver of recovery of the overpayment. She 

noted that she was not given an opportunity to submit legible copies of the August 24, 2021

documentation. Appellant also provided a summary of her financial information listing monthly 

expenses totaling $6,046.48. She also submitted other documentation, including loan documents, 

bank statements, tax forms, and copies of bills, and a partially completed Form OWCP-20 and 

additional financial information. Appellant further indicated, “Original appeal uploaded but not 

legible. Decision made without viewing my documents.”

By decision dated November 30, 2021, OWCP denied appellant’s request for 

reconsideration finding that her request was untimely filed and she had not demonstrated clear 

evidence of error in its September 22, 2021 decision.

LEGAL PRECEDENT -- ISSUE 1

Section 8102 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 

duty.6 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.7

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

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

service of the employee.8 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 

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); E.R., Docket No. 21-0133 (issued November 15, 2021); M.R., Docket No. 20-1622 (issued 

June 30, 2021); S.S., Docket No. 19-1945 (issued March 25, 2021); see S.O., Docket No. 18-0254 (issued August 2, 

2018); L.J., 59 ECAB 264 (2007).
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federal employee is part of the FERS retirement package, and the receipt of FECA benefits and 

federal retirement concurrently is a prohibited dual benefit.9

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $24,839.41 for the period July 1, 2019 through August 14, 2021, 

for which she was without fault, as she concurrently received SSA age-related retirement benefits 

and FECA wage-loss compensation without an appropriate offset.

As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA 

age-related retirement benefits attributable to federal service for the same period without an 

appropriate offset.10 The information provided by SSA established that appellant had received 

SSA age-related retirement benefits that were attributable to her federal service from July 1, 2019 

through August 14, 2021. Consequently, the fact of overpayment has been established.

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 

documentation from SSA with respect to the specific amount of SSA age-related retirement 

benefits that were attributable to federal service. SSA provided age-related retirement benefits 

rates with and without FERS during the specific period July 1, 2019 through August 14, 2021. 

OWCP provided its calculation for each relevant period based on a FERS offset calculation 

worksheet.

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

period July 1, 2019 through August 14, 2021 and finds that an overpayment of compensation in

the amount of $24,839.41 was created.

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

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that 

rests within OWCP’s discretion pursuant to statutory guidelines.12

9 FECA Bulletin No. 97-09 (issued February 3, 1997); see M.S., Docket No. 20-0068 (issued May 14, 2021).

10 Id.; see D.W., Docket No. 20-1533 (issued May 27, 2021); M.R., Docket No. 20-0427 (issued October 30, 2020); 

A.C., Docket No. 18-1550 (issued February 21, 2019);N.B., Docket No. 18-0795 (issued January 4, 2019).

11 5 U.S.C. § 8129.

12 A.C., supra note 10; see Robert Atchison, 41 ECAB 83, 87 (1989).
6

Section 10.438 of OWCP 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 re covery of an 

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.13

The guidelines for determining whether recovery of an overpayment would defeat the 

purpose of FECA or would be against equity and good conscience are set forth in sections 10.434 

to 10.437 of OWCP’s regulations.14

Section 10.436 provides that recovery of an overpayment would defeat the purpose of 

FECA if recovery would cause hardship because the beneficiary 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. 15 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 $50.00.16

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 of 

recovery of the overpayment 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 Appellant, however, had the responsibility to provide the appropriate financial 

information and documentation to OWCP, but failed to do so.

In its preliminary overpayment determination dated August 19, 2021, OWCP explained the 

importance of providing the completed Form OWCP-20 along with supporting financial 

documentation. It advised appellant that it would deny waiver of recovery if she failed to furnish 

the requested financial information within 30 days. As she did not submit a completed Form 

OWCP-20 with supporting financial documentation of her income, assets, and expenses, OWCP 

13 20 C.F.R. § 10.438.

14 Id. at §§ 10.434-10.437.

15 Id. at § 10.436.

16 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 

6.400.4a(3) (September 2020).

17 Supra note 15.
7

could not determine if recovery of the overpayment would defeat the purpose of FECA or if 

recovery would be against equity and good conscience.18

Accordingly, as appellant did not submit the 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 of compensation.

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. 19

Section 10.441(a) of OWCP s regulations20 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.”

21

ANALYSIS -- ISSUE 3

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

$909.00 from appellant’s continuing compensation payments every 28 days.

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

the Form OWCP-20 and the documentation provided was partially illegible. OWCP’s regulations 

provide that the overpaid individual is responsible for providing information about income, 

expenses, and assets as specified by OWCP.22

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

minimum collection guidelines designed to collect the debt promptly and in full. 23 The Federal 

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

18 D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued March 2, 2017).

19 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

20 Id. at § 10.441(a).

21 Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

22 Supra note 13at § 10.438. See also A.F., Docket No. 19-0054 (issued June 12, 2019).

23 See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).
8

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

in full.24

The record reflects that on August 17, 2021 OWCP notified appellant that her FECA wageloss compensation had been adjusted based on the information provided by SSA regarding the 

amount of her age-related retirement benefits attributable to her federal service. It advised that her 

new net FECA wage-loss compensation payments would be $3,635.93, effective August 15, 2021. 

The Board notes that 25 percent of $3,635.93 is $909.00. The Board therefore finds that OWCP 

properly required recovery of the overpayment by deducting $909.00 from appellant’s continuing 

compensation payments.

LEGAL PRECEDENT -- ISSUE 4

Section 8128(a) of FECA vests OWCP with discretionary authority to review an award for 

or against compensation.25 OWCP’s regulations provide standards to be met before a request for 

reconsideration of the merits of a given claim is granted.26 A request for reconsideration must be 

received by OWCP within one year of the date of OWCP’s decision for which review is sought.27 

Timeliness is determined by the document receipt date, i.e., the “received date” in OWCP’s 

Integrated Federal Employees’ Compensation System (iFECS).28 Imposition of this one-year 

filing limitation does not constitute an abuse of discretion.29

When a request for reconsideration is untimely, OWCP undertakes a limited review to 

determine whether the request demonstrates clear evidence that OWCP’s most recent merit 

decision was in error.30 OWCP’s procedures provide that it will reopen a claimant’s case for merit 

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the 

claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of 

24 Supra note 16at Chapter 6.500.8(c)(1) (September 2018); F.B., Docket No. 21-0680 (issued February 23, 2022); 

D.H., Docket No. 20-1064 (issued December 14, 2020).

25 5 U.S.C. § 8128(a).

26 20 C.F.R. § 10.606(b).

27 Id. at § 10.607(a). According to OWCP procedures, the one-year period of requesting reconsideration begins on 

the date of the original OWCP decision, but the right to reconsideration within one year also accompanies any 

subsequent merit decision on the issues, including any merit decision by the Board. Supra note 16 at Chapter 

2.1602.4a (September 2020).

28 Id. at Chapter 2.1602.4b (September 2020).

29 G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); LeonD. 

Faidley, Jr., 41 ECAB 104 (1989).

30 See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB 

499 (1990).
9

OWCP.31 In this regard, OWCP will limit its focus to a review of how the newly submitted 

evidence bears on the prior evidence of record.32 

However, section 10.440(b) of OWCP’s regulations specifically provides that the only 

review of a final overpayment determination of OWCP is to the Board and that section 8128(a) of 

FECA does not apply to such a final overpayment determination.33

ANALYSIS -- ISSUE 4

The Board finds that OWCP improperly determined that appellant’s request for 

reconsideration was untimely filed and failed to demonstrate clear evidence of error.

On October 4, 2021 appellant again requested waiver of recovery of the overpayment and 

submitted other documentation, including loan documents, bank statements, tax forms, copies of 

bills, and a partially completed Form OWCP-20. With these submissions appellant noted, 

“Original appeal uploaded but not legible. Decision made without viewing my documents.”

By decision dated November 30, 2021, OWCP treated her request for waiver of recovery 

of the overpayment as a request for reconsideration of the merits of her claim, finding that it was 

untimely filed and failed to establish clear evidence of error.

Section 10.440(b) of OWCP’s regulations, however, specifically provides that the only 

review of a final overpayment determination of OWCP is to the Board and that 5 U.S.C. § 8128(a) 

does not apply to such a final overpayment determination.34 The Board finds that OWCP erred in 

applying 5 U.S.C. § 8128(a) and its associated regulations in its November 30, 2021 decision. 

Therefore, the Board shall reverse OWCP’s November 30, 2021 decision.35

CONCLUSION

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

compensation in the amount of $24,839.41 for the period July 1, 2019 through August 14, 2021,

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

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

31 L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April15, 2010). See 

also 20 C.F.R. § 10.607(b); supranote 14 at Chapter 2.1602.5 (September 2020).

32 J.M., Docket No. 19-1842 (issued April23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

33 20 C.F.R. § 10.440(b).

34 See id.

35 See generally, J.B., Docket No. 20-0923 (issued February 12, 2021); E.H., Docket No. 19-0016 (issued 

October 20, 2020); P.J., Docket No. 19-1479 (issued May 8, 2020); Charles E. Nance, 54 ECAB 447 (2003). The 

Board notes that section 10.438(b) of OWCP’s regulations relative to requesting waiver of recovery provides: “(b) 

Failure to submit the requested information within 30 days of the request shall result in denial of waiver, and no further 

request for waiver shall be considered until the requested information is furnished.” 20 C.F.R. § 10.438(b). See also 

Federal (FECA) Procedure Manual, supra note 16 atChapter 6.400.2e(2) (September 2018).
10

finds that OWCP properly denied waiver of recovery of the overpayment and that it properly 

required recovery of the overpayment by deducting $909.00 from appellant’s continuing 

compensation payments every 28 days. The Board also finds that OWCP improperly determined 

that appellant’s request for reconsideration of a final overpayment determination was untimely 

filed and failed to demonstrate clear evidence of error.

ORDER

IT IS HEREBY ORDERED THAT the September 22, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed. The November 30, 2021 decision of the Office of 

Workers’ Compensation is reversed.

Issued: September 26, 2022

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