United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.W., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 22-0493

Issued: March 13, 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 18, 2022 appellant filed a timely appeal from a November 10, 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 appellant received an overpayment of compensation in the 

amount of $14,129.95, for the period November 1, 2019 through January 2, 2021, for which she 

was without fault, as she concurrently received Social Security Administration (SSA) age-related 

retirement benefits and FECA wage-loss compensation, without an appropriate offset; (2) whether 

OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the November 10, 2021 decision and on appeal, OWCP received additional 

evidence. However, the Board’s Rules of Procedureprovides: “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

required recovery of the overpayment by deducting $115.38 from appellant’s continuing 

compensation payments, every 28 days.

FACTUAL HISTORY

On July 5, 1994 appellant, then a 40-year-old boilermaker, filed a traumatic injury claim 

(Form CA-1) alleging that on June 29, 1994 she sustained a fractured thumb when it got caught in 

a metal plate while in the performance of duty. OWCP accepted the claim for open fracture of the 

right distal phalanx or phalanges; right closed fracture metacarpal; right fingers crushing injury; 

reflex sympathetic dystrophy (RSD); and prolonged depressive reaction. The record reflects that 

OWCP paid appellant wage-loss compensation on the periodic rolls as of June 16, 2002.

On November 20, 2020 OWCP sent a Federal Employees Retirement System (FERS)/SSA

dual benefits form to SSA for completion.

On December 10, 2020 OWCP received from SSA a December 2, 2020 completed 

FERS/SSA dual benefits form setting forth appellant’s SSA age-related retirement benefit rates

with FERS and without FERS commencing November 1, 2019. SSA reported that commencing 

November 2019, appellant’s rate with FERS was $1,332.20, and without FERS was $348.80; 

commencing December 2019, the rate with FERS was $1,353.50, and without FERS was $354.30; 

and commencing December 2020, the rate with FERS was $1,371.00, and without FERS was 

$358.90.

On January 8, 2021 OWCP completed a FERS offset overpayment calculation form 

wherein it determined the overpayment amount by multiplying the daily FERS offset amount by 

the number of days in each period. It related that from November 1 through 30, 2019, appellant 

received an overpayment of $972.59; from December 1, 2019 through November 30, 2020, she 

received an overpayment of $12,056.28; and from December 1, 2020 through January 2, 2021, she 

received an overpayment of $1,101.08. OWCP found that the overpayments totaled $14,129.95.

By separate letter also dated January 8, 2021, OWCPadvised appellant that it was reducing 

her wage-loss compensation effective January 3, 2021 by the amount of her SSA benefits 

attributable to her federal service. It indicated that her new net compensation every 28 days would 

be $1,055.89.

In a preliminary overpayment determination dated April 22, 2021, OWCP advised 

appellant of its determination that she received a $14,129.95 overpayment of compensation for the 

period November 1, 2019 through January 2, 2021, because her FECA wage-loss compensation 

benefits had not been reduced by her SSA age-related retirement benefits attributable to federal 

service. It also made a preliminary determination that she was without fault in the creation of the 

overpayment. OWCP advised appellant that she could submit evidence challenging the fact or 

amount of the overpayment or request waiver of recovery of the overpayment. It instructed her to 

complete an overpayment recovery questionnaire (Form OWCP-20) to determine whether waiver 

should be granted, and if not, a reasonable repayment schedule. OWCP informed appellant that 

she should 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 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.
3

On May 25, 2021 OWCP received appellant’s overpayment action request form. Appellant

disagreed with the amount of the overpayment and requested waiver of recovery of the 

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

On May 17, 2021 appellant completed the Form OWCP-20. She reported SSA income of 

$1,371.00 and FECA benefits of $1,062.00, for a total monthly income of $2,433.00. Appellant 

listed monthly expenses of rent or mortgage including property taxes, $1,271.83; food, $610.00; 

clothing, $100.00; utilities, $1,152.00; and other expenses, $664.48. She also listed monthly 

payments of $704.94 for miscellaneous debts. Appellant listed assets of cash, $23.00; checking 

account balance, $292.00, savings account balance, $8,219.47; other funds, $10,500.00; and 

shared other property valued at $176,400.00. 

A telephonic hearing before an OWCP hearing representative was held on 

September 10, 2021.

Following the hearing, appellant submitted financial documentation. 

In a November 10, 2021 decision, OWCP’s hearing representative found that appellant 

received an overpayment of compensation in the amount of $14,128.95, for the period 

November 1, 2019 through January 2, 2021, for which she was without fault. She found that 

appellant’s monthly income totaled $2,637.47, consisting of $1,371.00 in SSA benefits and 

$1,266.47 in FECA compensation ($1,169.00 every 28 days). OWCP’s hearing representative

further found that appellant’s monthly expenses totaled $2,389.20. 

OWCP’s hearing representative found that appellant’s monthly income of $2,637.47 

exceeded her monthly expenses of $2,389.20 by $248.27. She determined that, although appellant 

was not at fault in the creation of the overpayment, the overpayment could not be waived as her

monthly income exceeded her monthly expenses by more than $50.00, and her asset base also 

exceeded the allowable threshold of $10,300.00. OWCP’s hearing representative found that there 

was no evidence to substantiate that recovery of the overpayment would defeat the purpose of 

FECA or be against equity and good conscience. She required recovery of the overpayment by 

deduction of $115.38 from appellant’s continuing compensation payments every 28 days ($125.00 

per month).

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA3 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.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 the implementing regulations requires that OWCP reduce the amount 

of compensation by the amount of SSA benefits that are attributable to federal service of the 

3

5 U.S.C. § 8101 et seq.

4

Id. at § 8102(a).

5

Id. at § 8116.
4

employee.6 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 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 -- ISSUE 1

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

of compensation in the amount of $14,129.95,for the period November 1, 2019 through January 2, 

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

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

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

benefits attributable to federal service for the same period.8 The information provided by SSA 

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

federal service during the period November 1, 2019 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 November 1, 2019 through January 2, 2021. 

OWCP provided its calculations for each relevant period based on an SSA worksheet and 

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, which resulted in a total overpayment of $14,129.95. No contrary evidence 

was provided.

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

period November 1, 2019 through January 2, 2021, and finds that an overpayment of compensation 

in the amount of $14,129.95 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. 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 

6

20 C.F.R. § 10.421(d); see N.A., Docket No. 21-0982 (issued April28, 2022); S.O., Docket No. 18-0254 (issued 

August 2, 2018); L.J., 59 ECAB 264 (2007).

7 FECA Bulletin No. 97-09 (issued February3, 1997); N.B., Docket No. 18-0795 (issued January 4, 2019).

8

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).

9

5 U.S.C. § 8129(a)-(b).

10 See N.A., supra note 6; C.B., Docket No. 20-0031 (issued July 27, 2020); L.S., 59 ECAB 350 (2008).
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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.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

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. The information is also used to 

determine the repayment schedule, if necessary.15

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.16 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.17 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 

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 a n 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).

12 Federal (FECA) Procedure Manual, 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 Federal (FECA) Procedure Manual, supranote 11at Chapter 6.400.4c(3) (September 2020).

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

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

17 5 U.S.C. § 8129.
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current ordinary and necessary living expenses and that her assets do not exceed the established 

limit as determined by OWCP procedures.18

The Board finds that OWCP properly determined that appellant did not require 

substantially all of her income to meet ordinary living expenses. Appellant reported monthly 

income of $2,637.47, consisting of $1,371.00 in SSA benefits and $1,266.47 in FECA 

compensation ($1,169.00 every 28 days), which exceeded her monthly expenses of $2,389.20 by 

$248.27. As her monthly income exceeded her ordinary and necessary living expenses by more 

than $50.00, she did not need substantially all of her income for ordinary and necessary living 

expenses.19 OWCP also properly found that appellant’s asset base exceeded the allowable 

threshold of $10,300.00. Therefore, it properly determined that, although she was without fault in 

the creation of the overpayment, the overpayment could not be waived. 

Additionally, the Board finds that the evidence of record does not demonstrate that 

recovery of the overpayment would be against equity and good conscience. Appellant did not 

submit any evidence that she had relied upon the incorrect payments to her detriment or that she 

would experience severe financial hardship attempting to repay the debt. 20 Consequently, OWCP 

properly denied waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations provides that, 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 her attention is called to the 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

$115.38 from appellant’s continuing compensation payments every 28 days.

The Board finds that OWCP gave due regard to the financial information appellant 

submitted. OWCP also properly considered the factors set forth in section 10.441 in setting the 

amount of the repayment from continuing compensation benefits to minimize hardship, while 

liquidating the debt, as she had financial resources sufficient for more than ordinary needs.22 As 

noted, it properly determined that appellant’s monthly income exceeded her monthly expenses by 

$248.27, or more than $50.00 per month, and her reported assets exceeded the allowed resource 

18 20 C.F.R. § 10.436.

19 J.C., Docket No.19-0122 (issued June 11, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019); see also 

M.P., Docket No. 18-0902 (issued October 16, 2018).

20 20 C.F.R. § 10.437.

21 M.A., Docket No. 18-1666 (issued April26, 2019); DonaldR. Schueler, 39 ECAB 1056, 1062 (1988).

22 See N.J.,Docket No. 19-1170 (issued January 10, 2020).
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base of $10,300.00. OWCP did not abuse its discretion in requiring recovery by deducting $115.38

from her continuing compensation payments every 28.

CONCLUSION

The Board finds that appellant received an overpayment of compensation in the amount of 

$14,129.95 for the period November 1, 2019 through January 2, 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. The Board further finds that OWCP properly denied 

waiver of recovery of the overpayment, and properly required recovery deducting $115.38 from 

her continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the November 10, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 13, 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