United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS AND BORDER PROTECTION, U.S. 

BORDER PATROL, Weslaco, TX, Employer

__________________________________________

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Docket No. 22-1268

Issued: May 15, 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 August 8, 2022 appellant filed a timely appeal from a June 24, 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.

ISSUES

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

overpayment of compensation in the amount of $36,817.95 during the period September 1, 2019 

through December 4, 2021, for which he was without fault, as he 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 required recovery of the 

1

5 U.S.C. § 8101 et seq.
2

overpayment by deducting $1,175.94 from appellant’s continuing compensation payments every 

28 days.

FACTUAL HISTORY

On June 24, 2002 appellant, then a 48-year-old supervisory border patrol agent, filed a 

traumatic injury claim (Form CA-1) alleging that on that date he sustained neck, lower back, left 

leg, left arm, and left shoulder injuries when his vehicle was involved in a collision in the 

performance of duty. OWCP accepted the claim for cervical and lumbar strains. It subsequently

expanded acceptance of the claim to include cervical and lumbar radiculopathy, cervical 

intervertebral disc degeneration and lumbar intervertebral disc displacement without myelopathy. 

OWCP paid appellant wage-loss compensation on the supplemental rolls commencing August 9, 

2002 and on the periodic rolls commencing August 11, 2002.

A claim for compensation (Form CA-7) dated August 6, 2002 indicated that appellant’s 

retirement coverage was under the Federal Employees Retirement System (FERS).

On November 10, 2021 OWCP provided SSA with a FERS/SSA dual benefits form.

On November 29, 2021 SSA completed the dual benefits form, which reported appellant’s 

SSA age-related retirement benefit rates with a FERS offset and without a FERS offset from 

September 2019 through December 2021. Beginning September 2019, the SSA rate with FERS 

was $2,442.10 and without FERS was $1,117.10. Beginning December 2019, the SSA rate with 

FERS was $2,481.10 and without FERS was $1,134.90. Beginning December 2020, the SSA rate 

with FERS was $2,513.30 and without FERS was $1,149.60. Beginning December 2021, the SSA 

rate with FERS was $2,661.50 and without FERS was $1,217.40.

On December 27, 2021 OWCP prepared a FERS offset overpayment calculation worksheet 

wherein it indicated that, for the period September 1 through November 30, 2019, appellant 

received an overpayment in the amount of $3,975.00; for the period December 1, 2019 through 

November 30, 2020 appellant received an overpayment in the amount of $16,243.16; for the period 

December 1, 2020 through November 30, 2021 appellant received an overpayment in the amount 

of $16,409.36; and for the period December 1 through 4, 2021 appellant received an overpayment 

in the amount of $190.43. OWCP found that he had therefore received a total overpayment of 

compensation in the amount of $36,817.95 for the period September 1, 2019 through 

December 4, 2021.

On December 28, 2021 OWCP issued a preliminary overpayment determination, finding 

an overpayment of compensation in the amount of $36,817.95 had been created for the period 

September 1, 2019 through December 4, 2021 because appellant concurrently received SSA agerelated retirement benefits and FECA wage-loss compensation without an appropriate offset. It 

indicated that he was without fault in the creation of the overpayment. OWCP requested that 

appellant submit a completed overpayment recovery questionnaire Form OWCP-20 to determine 

a reasonable repayment method and advised him that he could request a waiver of the 

overpayment. It further requested that he provide financial documentation, including copies of 

income tax returns, bank account statements, bills, pay slips, and any other records to support her 

reported income and expenses. Additionally, OWCP further provided an overpayment action 
3

request form and notified him that, within 30 days of the date of the letter, he could request a final 

decision based on the written evidence or a prerecoupment hearing.

In an overpayment action request form dated January 8, 2022 and received on February 9, 

2022, appellant requested waiver because he had been found without fault in the creation of the 

overpayment and repaying the overpayment would cause hardship. Enclosed was a Form OWCP20 in which appellant indicated total monthly income of $11,703.00, and monthly expenses 

totaling $8,874.00. Appellant also noted that he had assets totaling $10,060.00. No supporting 

financial documentation was submitted.

By decision dated February 9, 2022, OWCP finalized its preliminary overpayment 

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

$36,818.01 for the period September 1, 2019 through December 4, 2021 as he concurrently 

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

appropriate offset. It found that he was without f ault in the creation of the overpayment, but denied 

waiver of recovery of the overpayment asit had notreceived supporting documentation or a written 

response. OWCP required recovery of the overpayment by withholding $1,175.94, which was 25 

percent of his 28-day net compensation amount, from appellant’s continuing compensation 

payments every 28 days.

A memorandum of telephone call (Form CA-110) dated February 18, 2022 indicated that 

appellant was advised by OWCP that since he had requested waiver of recovery of the 

overpayment, a prerecoupment hearing should have been initiated.

By decision dated March 10, 2022, OWCP vacated the decision dated February 9, 2022 as 

appellant had requested a prerecoupment hearing. 

A telephonic hearing before a representative of OWCP’s Branch of Hearings and Review 

was held on May 3, 2022. Appellant testified regarding his monthly income and expenses.

By decision dated June 24, 2022, OWCP’s hearing representative found that appellant had 

received an overpayment of compensation in the amount of $36,817.95 for the period September 1, 

2019 through December 4, 2021 as he concurrently received SSA age-related retirement benefits 

and FECA wage-loss compensation without an appropriate offset. It found that he was without 

fault in the creation of the overpayment, but denied waiver of recovery of the overpayment as he 

failed to provide supporting financial information in support of his monthly income and expenses. 

OWCP required recovery of the overpayment at 25 percent of his 28-day net compensation 

amount, by withholding $1,175.94, from appellant’s continuing compensation payments every 28 

days.

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.

2

 Section 8116 limits the right of an employee to receive compensation. While an employee 

2

Id. at § 8102(a).
4

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

the United States.3

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 

employee.4 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 age-related retirement 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. 5

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $36,817.95 for the period September 1, 2019 through 

December 4, 2021, for which he was without fault, as he concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation, without an appropriate offset.

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

age-related retirement benefits attributable to federal service for the same period. 6 The information 

provided by SSA on November 29, 2021 reflected that appellant had received SSA age-related 

retirement benefits that were attributable to his own federal service from September 1, 2019 

through December 4, 2021. Thus, the record establishes that appellant received an overpayment 

of FECA wage-loss compensation.7

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

attributable to federal service must be calculated.

OWCP received documentation from SSA with respect to the specific amount of 

appellant’s SSA age-related retirement benefits that were attributable to his federal service. SSA 

provided its benefit rates with FERS and without FERS. The Board finds that OWCP properly 

determined the amount of the overpayment. The Board found that, since SSA benefits were paid 

monthly and FECA benefits were paid every 28 days, the monthly offset had to be adjusted to a 

28-day payment cycle amount. OWCP provided its calculations for each relevant time period 

based on the SSA dual benefits form and properly calculated that the lack of offset from 

September 1, 2019 through December 4, 2021 resulted in an overpayment total of $36,817.95.

3

Id. at § 8116.

4

20 C.F.R. § 10.421(d); see P.A., Docket No. 22-0801 (issued October 28, 2022); S.O., Docket No. 18-0254 (issued 

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

5 FECA Bulletin No. 97-09 (issued February 3, 1997).

6

Supra note 5. See also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550 (issued 

February 21, 2019).

7

Id.
5

The Board has reviewed OWCP’s calculations and finds that it properly determined that 

appellant received prohibited dual benefits totaling $36,817.95 for the period September 1, 2019 

through December 4, 2021.

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. 8 

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.9

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. 10 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 .

11

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 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.12

OWCP’s 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.13 Failure to submit the requested information 

8

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; P.A., supra note 4; A.F., Docket No. 19-0054 

(issued June 12, 2019).

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

10 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, Part 6 -- Debt Management, Final Overpayment Determinations,

Chapter 6.400.4a(2) (September 2020).

11 P.A., supra note 4; N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 (issued 

April 26, 2019); id. at Chapter 6.400.4.a(3).

12 20 C.F.R. § 10.437(a)-(b).

13 Id. at § 10.438(a); P.A., supra note 4; M.S., Docket No. 18-0740 (issued February 4, 2019).
6

within 30 days of the request shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished. 14

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied 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

 Appellant, 

however, had the responsibility to provide supporting financial information and documentation to 

OWCP.

16

In its preliminary overpayment determination dated December 28, 2021, OWCP requested 

a completed Form OWCP-20 and supporting financial documentation, including copies of income 

tax returns, bank account statements, bills, pay slips, and other records to su pport income and 

expenses. OWCP advised that failure to submit the requested information would result in the 

denial of waiver. However, while appellant returned the Form OWCP-20 containing information 

about his income and expenses, he did not submit the required documentation such that OWCP 

would have the supporting documentation necessary for it to determine if recovery of the 

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

conscience.

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. 17

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. 18 Section 

10.441(a) of OWCP’s implementing regulations19 provides that, if 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 

14 Id. at § 10.438(b).

15 Id. at § 10.436.

16 Id.

17 See P.A., supra note 4; T.E., Docket No. 19-0348 (issued December 11, 2019).

18 See P.A., id.; C.A., Docket No. 18-1284 (issued April15, 2019); Lorenzo Rodriguez, 51 ECAB 295 (2000); Albert 

Pineiro, 51 ECAB 310 (2000).

19 20 C.F.R. § 10.441(a).
7

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. 20

When an individual fails to provide requested information on income, expenses, and assets, 

OWCP should follow minimum collection guidelines.21 The Federal (FECA) Procedure Manual 

provides that, in these instances, OWCP should set the rate of repayment at 25 percent of the 28-

day net compensation amount until the balance of the overpayment is paid in full. 22

ANALYSIS -- ISSUE 3

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

$1,175.94 from appellant’s continuing compensation payments every 28 days.

Along with the December 28, 2021 preliminary overpayment determination, OWCP 

requested that appellant complete a Form OWCP-20 and submit supporting financial 

documentation. The overpaid individual is responsible for providing information about income, 

expenses, and assets as specified by OWCP.23 When an individual fails to provide sufficient 

financial information, OWCP should follow minimum collection guidelines designed to collect 

the debt promptly and in full.24 As appellant did not submit any supporting documentation, the 

Board finds that OWCP properly required recovery of the $36,817.95 overpayment at the 25 

percent rate of $1,175.94 from appellant’s continuing compensation payments every 28 days.

25

CONCLUSION

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

of compensation in the amount of $36,817.95, for the period September 1, 2019 through 

December 4, 2021, for which he was without fault, as he concurrently received FECA wage-loss 

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. The Board also 

finds that OWCP properly required recovery of the overpayment by deducting $1,175.94 from 

appellant’s continuing compensation payments every 28 days.

20 Id.

21 Supra note 10 at Debt Liquidation, Chapter 6.500.8c(1) (September 2020).

22 Id. 

23 Supra note 10.

24 See P.A., supra note 4; A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); 

supra note 1 at Chapter 6.400.3 (September 2020).

25 See P.A., id.; E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued 

March 2, 2017).
8

ORDER

IT IS HEREBY ORDERED THAT the June 24, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 15, 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