United States Department of Labor

Employees’ Compensation Appeals Board

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M.D., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. IMMIGRATION AND CUSTOMS 

ENFORCEMENT, Los Fresnos, TX, Employer

__________________________________________

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Docket No. 22-1391

Issued: June 20, 2023

Appearances: Case Submitted on the Record

Lorenzo Tijerina, Esq., for the appellant1

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 September 21, 20222 appellant, through counsel, filed a timely appeal from a March 25, 

2022 merit decision of the Office of Workers’ Compensation Programs (OWCP).3 Pursuant to the 

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 Pursuant to the Board’s Rules of Procedure, an appeal is considered filed when received by the Clerk of the 

Appellate Boards. 20 C.F.R. § 501.3(f). However, when the date of receipt would result in a loss of appeal rights, 

the appeal will be considered to have been filed as of the date of the U.S. Postal Service postmark or other carriers 

date markings. Id. at § 501.3(f)(1). The 180th day following OWCP’s March25, 2022 decision was Wednesday, 

September 21, 2022. Because using September 26, 2022, the date the appeal was received by the Clerk of the 

Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing.

The date of the U.S. Postal Service postmark is September 21, 2022, rendering the appeal timely filed. Id.

3 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of her oral argument request, counsel for appellant noted that it was requested only if the facts and issues 
2

Federal Employees’ Compensation Act4(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.5

ISSUES

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

overpayment of compensation in the amount of $42,756.82, for the period October 1, 2018 through 

January 2, 2021, for which she was without fault, because she concurrently received Social 

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

compensation, without an appropriate offset; and (2) whether OWCP properly denied waiver of 

recovery of the overpayment.

FACTUAL HISTORY

On November 7, 2008 appellant, then a 56-year-old supervisory immigration enforcement 

agent, filed a claim for traumatic injury (Form CA-1) alleging that, on October 30, 2008, she 

sustained injuries to her right arm and both knees during firearms qualification training while in 

the performance of duty.

OWCP accepted the claim for aggravation of osteoarthritis of left lower leg; contusion of

the right upper arm; effusion of left lower leg joint; enthesopathy of the left knee; fracture of the 

left patella; localized left lower leg primary osteoarthritis; mechanical loosening of other internal 

prosthetic joint; and other specified local infection of skin and subcutaneous tissues. It paid 

appellant wage-loss compensation on the supplemental rolls as of December 14, 2008, and on the

periodic rolls as of February 15, 2009 until February 26, 2022. OWCP paid her on the 

supplemental rolls between February 27 and May 21, 2022 and on the periodic rolls again as of 

May 22, 2022.

OWCP received an EN-1032 form which appellant completed on November 14, 2018 

wherein she related that she had reached SSA full retirement age and was receiving benefits as 

part of an annuity for federal service. Appellant completed EN-1032 forms on November 5, 2019, 

October 31, 2000, and October 25, 2021 wherein she noted receipt of SSA benefits as part of an 

annuity for federal service. 

Footnote 3 continued -- needed to be further elaborated for the administrative law judges. The Board, in exercising 

its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be 

addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance 

of a Board decision and not serve a useful purpose. As such, the oral argument request is denied, and this decision is 

based on the case record as submitted to the Board.

4

5 U.S.C. § 8101 et seq.

5 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.
3

On December 14, 2020 OWCP provided SSA with a Federal Employees Retirement 

System (FERS)/SSA dual benefits form. It requested appellant’s SSA age-related retirement 

benefit rates with and without FERS.

On December 17, 2020 OWCP received the completed dual benefits form, wherein SSA 

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

FERS. Beginning October 2018, the SSA rate with FERS was $2,291.10, and without FERS was 

$771.40; beginning December 2018, the SSA rate with FERS was $2,355.20 and without FERS 

was $792.90; beginning December 2019, the SSA rate with FERS was $2,392.80 and without 

FERS was $805.50; and beginning December 2020, the SSA rate with FERS was $2,423.90 and 

without FERS was $815.90. 

In letters dated January 27, 2021, OWCP notified appellant that she had been receiving 

SSA age-related retirement benefits since October 1, 2018, and that the portion of SSA benefits 

attributed to her federal service required an offset of her FECA compensation benefits. It noted 

that SSA advised that her current SSA monthly benefit was $2,423.90, and that if her federal 

service was not included, her monthly benefit would be $815.90. Since appellant’s federal service 

increased her monthly benefit by $1,608.00, this difference was the portion of SSA benefits

attributed to federal service and was the amount that must be offset against her FECA 

compensation benefits. OWCP explained that since SSA payments were paid monthly, or 12 

payments per year, and OWCP wage-loss compensation benefits were paid every 28 days, or 13 

payments per year, the monthly offset amount would be adjusted to a 28-day payment cycle of 

$1,484.31, which would begin on January 3, 2021, and her new wage-loss compensation benefit 

would be $5,045.69. 

In a FERS offset overpayment calculation worksheet dated July 23, 2021, OWCP used the 

information provided by SSA to calculate the 28-day FERS offset for the relevant periods. It found 

that, for the period October 1 through November 30, 2018, appellant received an overpayment in 

the amount of $3,056.10; for the period December 1, 2018 through November 30, 2019, she 

received an overpayment in the amount of $18,799.10; for the period December 1, 2019 through 

November 30, 2020, she received an overpayment in the amount of $19,152.16; and for the period

December 1, 2020 through January 2, 2021, she received an overpayment in the amount of 

$1,749.36. OWCP calculated a total overpayment in the amount of $42,756.82. 

On July 23, 2021 OWCP issued a preliminary overpayment determination that appellant 

received an overpayment of compensation in the amount of $42,756.82, for the period October 1, 

2018 through January 2, 2021, because the SSA/FERS offset was not applied to payments for this 

period. It determined that she was without fault in the creation of the overpayment. OWCP 

requested that appellant submit a completed overpayment recovery questionnaire (Form OWCP20) to determine a reasonable recovery method and advised her that she could request a waiver of 

recovery of the overpayment.6 It 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 further notified her that, within 30 days of the date of the 

6 OWCP issued a preliminary overpayment determination on April 9, 2021; however, it was set aside by an OWCP 

hearing representative on June 24, 2021, as the FERS offset calculation was illegible.
4

letter, she could contest the overpayment and request a final decision based on the written 

evidence, or a prerecoupment hearing.

Appellant did not complete the Form OWCP-20 or provide further financial 

documentation.

7

By decision dated March 25, 2022, OWCP finalized its preliminary overpayment 

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

of $42,756.82, for the period October 1, 2018 through January 2, 2021, because it failed to offset 

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

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

overpayment, but denied waiver of recovery of the overpayment, noting that she had not submitted 

a completed OWCP-20 form or provided any financial documentation. OWCP determined that 

appellant was required to repay the full amount of the overpayment, $42,756.82, within 30 days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA8 provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of his 

or her federal employment.9 Section 8116 of FECA defines the limitations on the right to receive 

compensation benefits.10 Section 8116(a) provides that, while an employee is receiving workers’

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the armed forces, including benefits administered by the Department of Veterans 

Affairs, unless such benefits are payable for the same injury or the same death being compensated 

for under FECA.11

Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may 

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity. 12 

The beneficiary must elect the benefit that he or she wishes to receive. 13

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $42,756.82, for the period October 1, 2018 through January 2, 

7 On March 16, 2022 OWCP suspended appellant’s compensation benefits based upon her failure to complete a 

Form CA-1032 dated October 12, 2021.

8

5 U.S.C. § 8101 et seq.

9

5 U.S.C. § 8102(a).

10 Id. at § 8116.

11 Id. at § 8116(a).

12 20 C.F.R. § 10.421(a).

13 Id.
5

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

compensation and SSA age-related retirement benefits.

In its March 25, 2022 decision, OWCP found that an overpayment of compensation was 

created for the period October 1, 2018 through January 2, 2021. The overpayment was based on 

the evidence received from SSA with respect to age-related retirement benefits paid to appellant. 

A claimant cannot receive both FECA compensation for wage loss and SSA age-related benefits 

attributable to federal service for the same period.14 The information provided by SSA indicated 

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

during the period October 1, 2018 through January 2, 2021.

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

attributable to federal service must be calculated. The SSA provided the SSA rate with FERS, and 

without FERS, for specific periods commencing October 1, 2018 through January 2, 2021. In its 

July 23, 2021 preliminary overpayment determination, OWCP calculated the amount of 

overpayment by determining the difference between the SSA amount with and without FERS for 

each period and multiplying the daily offset amount by the number of days in each period, to find 

a total overpayment of $42,756.82. 

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

period October 1, 2018 through January 2, 2021, and finds that an overpayment of compensation 

in the amount of $42,756.82 was created.

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.15 

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.16

Recovery of an overpayment will defeat the purpose of FECA if 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 

not exceed a specified amount as determined by OWCP. 17 Additionally, 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 

14 5 U.S.C. § 8116(d)(2); see L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 

(issued May 17, 2019).

15 5 U.S.C. § 8129(a)-(b).

16 A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

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, Pa rt 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400.4a(2) (September 2020).
6

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.18

OWCP 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. 19

ANALYSIS -- ISSUE 2

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

The fact that OWCP may have been negligent in the creation of the overpayment does not 

entitle appellant to waiver of recovery of the overpayment.20 As OWCP found appellant without 

fault in the creation of the overpayment, waiver must be considered, and repayment is still required 

unless recovery of the overpayment would defeat the purpose of FECA or be against equity and 

good conscience.21 In order to establish that repayment of the overpayment would defeat the 

purpose of FECA, appellant must show that she requires substantially all of her income to meet 

current ordinary and necessary living expenses, and that her assets do not exceed the established 

limit as determined by OWCP procedures.22

In its preliminary overpayment determination dated July 23, 2021, OWCP clearly 

explained the importance of providing the completed Form OWCP-20 and financial information. 

It advised appellant that it would deny waiver of recovery of the overpayment if she failed to 

furnish the requested financial information within 30 days. Appellant, however, did not respond. 

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. 23

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

§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the 

Board finds that OWCP properly denied waiver of recovery of the overpayment. 24

CONCLUSION

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

of compensation in the amount of $42,756.82, for the period October 1, 2018 through January 2, 

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

18 Id. at § 10.437(a)(b).

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

20 See L.D.,Docket No. 19-0606 (issued November 21, 2019); R.B.,Docket No. 15-0808 (issued October 26, 2015).

21 5 U.S.C. § 8129.

22 20 C.F.R. § 10.436.

23 20 C.F.R. § 10.438.

24 See E.T., Docket No. 22-0234 (issued August 17, 2022); T.E.,Docket No. 19-0348 (issued December 11, 2019).
7

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.

ORDER

IT IS HEREBY ORDERED THAT the March 25, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 20, 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