United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Tallahassee, FL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 23-0490

Issued: November 22, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 21, 2023 appellant filed a timely appeal from a December 27, 2022 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 $17,473.89, for which he was without fault, 

because he concurrently received FECA wage-loss compensation and Social Security 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the December 27, 2022 decision, OWCP received additional evidence. 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

Administration (SSA) age-related retirement benefits for the period June 1, 2019 through 

January 30, 2021, without an appropriate offset; (2) whether OWCP properly denied waiver of 

recovery of the overpayment; and (3) whether it properly required recovery of the overpayment by 

deducting $245.92 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On February 14, 1989 appellant, then a 35-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, he injured his neck and chest when he was involved 

in a motor vehicle accident (MVA) while in the performance of duty. OWCP accepted his claim 

for sprains of the right side of the neck, shoulder, upper arm, and acromioclavicular (AC) joint, 

lumbar sprain, bilateral rotator cuff sprains and deficiency, headache, and disorder of the bursae 

and tendons in the shoulders.

3

 Itpaid appellant wage-loss compensation on the supplementalrolls, 

effective April 4, 1989, and on the periodic rolls, effective November 3, 2002.

On January 11, 2021 OWCP requested information from SSA regarding potential Federal 

Employees Retirement System (FERS)/SSA dual benefits.

OWCP thereafter received a completed FERS/SSA dual benefits form from SSA dated 

January 23, 2021. The form indicated that appellant received SSA age-related retirement benefits 

as of June 2019 and provided SSA age-related retirement benefit rates with FERS offset. 

Beginning June 2019, the SSA rate with FERS was $1,858.60 and without FERS was $1,000.40.

Beginning December 2019, the SSA rate with FERS was $1,888.30 and without FERS was 

$1,016.40. Beginning December 2020, the SSA rate with FERS was $1,912.80 and without FERS 

was $1,029.60.

In a FERS offset overpayment calculation worksheet dated February 22, 2021, OWCP used 

the information provided by SSA on January 23, 2021 to calculate the 28-day FERS offset for the 

relevant periods, and calculated a total overpayment in the amount of $17,473.89. It found that 

from June 1 through November 30, 2019 appellant received an overpayment in the amount of 

$5,177.49; from December 1, 2019 through November 30, 2020 appellant received an 

overpayment in the amount of $10,520.29; and from December 1, 2020 through January 30, 2021

appellant received an overpayment in the amount of $1,776.11.

Beginning February 23, 2021, OWCP adjusted appellant’s net wage-loss compensation to 

$2,234.46 per 28-day pay period to include the offset of his SSA age-related retirement benefits 

attributable to his federal service. It notified him of this change on February 23, 2021.

In a preliminary overpayment determination, also dated February 23, 2021, OWCP notified 

appellant that he had received an overpayment of compensation in the amount of $ 17,473.89,

because it had failed to reduce his wage-loss compensation payments for the period June 1, 2019 

3 OWCP assigned the current claim OWCP File No. xxxxxx710. Appellant had previously filed a Form CA-1 for 

an injury on September 18, 1988. OWCP assigned that claim OWCP File No. xxxxxx553, which was accepted on 

November 7, 1988 for right shoulder and cervical spine sprain. Appellant had a subsequent claim for a December 24, 

1993 traumatic injury, which OWCP accepted under File No. xxxxxx818 for a right shoulder sprain. OWCP 

administratively combined OWCP File Nos. xxxxxx553, xxxxxx818, and xxxxxx710, with the latter file designated 

as the master file.
3

through January 30, 2021 by the portion of his SSA age-related retirement benefits attributable to 

his federal service. It explained each period in the FERS offset calculation and found a total 

overpayment of $17,473.89. OWCP further advised appellant of its preliminary determination 

that he was without fault in the creation of the overpayment, and requested that he complete an 

overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20), 

and submit supporting financial documentation, including copies of income tax returns, bank 

account statements, bills, and canceled checks, pay slips, and any other records to support income 

and expenses. Additionally, it notified him that he could request a final decision based on the 

written evidence or a prerecoupment hearing within 30 days.

On March 30, 2021 appellant requested a prerecoupment hearing regarding possible waiver 

of recovery of the overpayment with OWCP’s Branch of Hearings and Review. He also requested 

waiver of recovery of the overpayment because he was found to be without fault in the creation of 

the overpayment. Appellant attached a completed Form OWCP-20 dated March 30, 2021, wherein 

he noted a total monthly income of $5,132.00, which included $1,912.00 in SSA benefits, 

$2,936.00 in household income, and $284.00 in other benefits. He also reported monthly expenses 

of $5,061.00 and that he had a checking account balance of $262.50, a savings account balance of 

$5.01, a retirement account valued at $38,502.00, and a parcel of land valued at $41,000.00, for a 

total of $80,265.50 in assets. Appellant provided financial documentation, including his bank 

statement for the time period March 5 through April 5, 2021.

By decision dated July 13, 2021, OWCP denied appellant’s request for a prerecoupment 

hearing as untimely filed. It found that, because his request was not filed within 30 days of the 

February 23, 2021 preliminary overpayment determination, he was not entitled to a prerecoupment 

hearing as a matter of right.

By decision dated December 27, 2022, OWCP finalized its preliminary overpayment 

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

of $17,473.89 for the period June 1, 2019 through January 30, 2021, because he concurrently 

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

an appropriate offset. It also found that he 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 noted that the evidence of record established that 

appellant’s monthly income exceeded his expenses by $2,303.46 and that he had assets in excess 

of the resource base of $6,200.00. It required recovery of the overpayment by deducting $245.92

from his continuing compensation payments every 28 days. 

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.4 Section 8116 limits the right of an employee to receive 

4

5 U.S.C. § 8102(a).
4

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 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.6 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.7

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $17,473.89, for which he was without fault, because he 

concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for 

the period June 1, 2019 through January 30, 2021, without an appropriate offset.8

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

wage-loss compensation benefits under FECA, he was also receiving SSA age-related retirement 

benefits based upon his federal service. A claimant cannot receive both compensation for wageloss compensation benefits under FECA and SSA age-related retirement benefits attributable to 

federal service for the same period.9 The information provided by SSA established that appellant 

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

period June 1, 2019 through January 30, 2021. 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 

federal service. SSA provided its rate with FERS and without FERS for specific periods from 

June 1, 2019 through January 30, 2021. OWCP provided its calculations for each relevant period 

based on SSA’s work sheet and determined that she received an overpayment in the amount of

$17,473.89.

5

Id. at § 8116.

6

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

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

8 R.C., Docket No. 19-0845 (issued February 3, 2020); A.F., Docket No. 19-0054 (issued June 12, 2019).

9

Id.
5

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

period June 1, 2019 through January 30, 2021 and finds that an overpayment of compensation in 

the amount of $17,473.89 was created.10

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.11 

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.12

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 the beneficiary’s assets do not exceed a specified amount as determined by OWCP. 13 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 

$50.00.14 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.15 An individual’s liquid assets include, but are not limited to cash, the value of stocks, 

bonds, saving accounts, mutual funds, and certificate of deposits. 16 Non liquid assets include, but 

are not limited to, the fair market value of an owner’s equity in property such as a camper, boat, 

second home, furnishings/supplies, vehicle(s) above the two allowed per immediate family, 

retirement account balances (such as Thrift Savings Plan or 401(k)), jewelry, and artwork. 17

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; 

10 See R.F., Docket No. 20-0159 (issued October 15, 2020); see D.C., Docket No. 17-0559 (issued June21, 2018).

11 5 U.S.C. § 8129(a)-(b).

12 D.H., Docket No. 19-0384 (issued August 12, 2019); V.H., Docket No. 18-1124 (issued January 16, 2019); L.S., 

59 ECAB 350 (2008).

13 20 C.F.R. § 10.436(a)(b).

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

6.400.4a(3) (September 2020).

15 Id. at Chapter 6.400.4a(2).

16 Id. at Chapter 6.400.4b(3).

17 Id. at Chapter 6.400.4b(3)(a), (b).
6

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. 18 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.19

ANALYSIS -- ISSUE 2

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

compensation.20

As OWCP found appellant without fault in the creation of the overpayment, waiver must 

be considered. As noted above, even if a claimant is found without fault in the creation of the 

overpayment, recovery of the overpayment is still required unless adjustment or recovery of the 

overpayment would defeat the purpose of FECA, or would be against equity and good 

conscience.21

The Board finds that appellant has not established that recovery of the overpayment would 

defeat the purpose of FECA, because he has not shown both that he needs substantially all of his

current income to meet ordinary and necessary living expenses, and that his assets do not exceed 

the allowable resource base. In the Form OWCP-20, appellant reported a checking account 

balance of $262.50, a savings account balance of $5.01, a retirement account valued at $38,502.00, 

and a parcel of land valued at $41,000.00 for total assets of $80,265.50. 

As noted above, in determining whether recovery of the overpayment would defeat the 

purpose of FECA, OWCP considers whether assets exceed a resource base of $6,200.00 for an 

individual.22 Accordingly, the Board finds that appellant, who reported up to $80,265.50in assets, 

has not met the standard for waiver of recovery of the overpayment, because his assets exceed the 

allowable resource base.23 Because appellant has not met the second prong of the two-prong test 

of whether recovery of the overpayment would defeat the purpose of FECA, it is not necessary for 

OWCP to consider the first prong of the test, i.e., whether he needs substantially all of his current 

income to meet ordinary and necessary living expenses.24

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

19 Supra note 14 at Chapter 6.400.4c(3).

20 A.C., Docket No. 18-1550 (issued February 21, 2019).

21 Supra note 11.

22 Supra note 15.

23 S.W., Docket No. 20-0363 (issued November 23, 2020); H.F., Docket No. 17-0101 (issued September 5, 2017).

24 S.R., Docket No. 20-1416 (issued September 8, 20220; M.H., Docket No. 19-1497 (issued September 9, 2020).
7

The Board also finds that appellant has not established that she was entitled to waiver on 

the basis that recovery of the overpayment would be against equity and good conscience. 

Appellant has not shown, for the reasons noted above, that he would experience severe financial 

hardship in attempting to repay the debt, or that he has relinquished a valuable right or changed 

his position for the worse in reliance on the payments which created the overpayment. 25

On appeal, appellant argued that OWCP utilized inaccurate information when determining 

his monthly household income. The record reflects that he reported monthly income of $5,132.00. 

OWCP, in its December 27, 2022 decision, found that appellant had $7,414.46 in monthly income,

and indicated that he had failed to list his FECA payments of $2,282.46 per month. The Board 

finds that OWCP improperly increased the amount of appellant’s income in its December 27, 2022 

decision as the $5,132.00 figure provided by appellant already included the amount of his FECA

payments. However, as appellant has not met the second prong of the two-prong test of whether 

recovery of the overpayment would defeat the purpose of FECA, it is not necessary to consider 

the first prong of the test, i.e., whether he needed substantially all of his current income to meet 

ordinary and necessary living expenses.

26

Because appellant has not established that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, the Board finds that OWCP properly 

denied waiver of recovery of the overpayment.27

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. 28

Section 10.441(a) of OWCP’s regulations29 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.”

30

25 See B.C., Docket No. 19-0629 (issued June 2, 2020); L.D.,id.; WilliamJ. Murphy, 41 ECAB 569, 571-72(1989).

26 Supra note 24.

27 S.W., Docket No. 20-0363 (issued November 23, 2020).

28 20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

29 Id. at § 10.441(a).

30 Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).
8

ANALYSIS -- ISSUE 3

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

$245.92 from appellant’s continuing compensation payments every 28 days.

In determining whether appellant could repay the overpayment through deductions of 

$245.92 from his continuing compensation payments, OWCP took into consideration the financial 

information he submitted as well as factors set forth in 20 C.F.R. § 10.441 and found that this 

method of recovery would minimize any resulting hardship, while at the same time liquidating the 

debt in a reasonably prompt fashion.

31

 Therefore, the Board finds that OWCP properly required 

recovery of the overpayment by deducting $245.92 per month from his compensation payments.32

CONCLUSION

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

of compensation in the amount of $17,473.89, for which he was without fault, because he 

concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for 

the period June 1, 2019 through January 30, 2021, 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 $245.92 per month from his continuing 

compensation payments every 28 days.

31 J.R., Docket No. 17-0181 (issued August 12, 2020); L.F., Docket No. 15-0489 (issued May 11, 2015).

32 J.B., Docket No. 19-1734 (issued November 5, 2020).
9

ORDER

IT IS HEREBY ORDERED THAT the December 27, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 22, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board