United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.F., Appellant

and

U.S. POSTAL SERVICE, RICHMOND 

PROCESSING & DISTRIBUTION CENTER, 

Richmond, VA, Employer

__________________________________________

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Docket No. 22-1158

Issued: April 7, 2023

Appearances: Case Submitted on the Record

Ann M. Reardon, Esq., for the appellant1

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 July 28, 2022 appellant filed a timely appeal from a March 31, 2022 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.3

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 5 U.S.C. § 8101 et seq.

3 The Board notes that following the March 31, 2022 decision, appellant submitted additional evidence to OWCP.

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

ISSUES

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

overpayment of compensation in the amount of $133,074.35, for the period March 1, 2010 through 

April 24, 2021, for which she was without fault, because she concurrently received FECA wageloss compensation benefits and Social Security Administration (SSA) age-related retirement 

benefits, without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of 

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

deducting $112.71 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On April 24, 2009 appellant, then a 62-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that on April 23, 2009 she sustained a low back injury when she lifted a mail tray 

and placed it in a location above her head while in the performance of duty. The employee’s 

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

She stopped work shortly after filing her claim. OWCP accepted appellant’s claim for lumbar 

sprain, displacement of lumbar intervertebral disc without myelopathy, and thoracic or 

lumbosacral neuritis or radiculitis. It paid appellant wage-loss compensation on the supplemental 

rolls effective June 6, 2009 and on the periodic rolls, effective August 2, 2009.

4

 Appellant was 

separated from the employing establishment in December 2011. 

On April 14, 2021 OWCP received a FERS/SSA dual benefits form completed by SSA, 

which indicated that appellant received SSA age-related retirement benefits that were attributable 

to her federal service commencing March 2010. SSA provided age-related retirement benefit rates 

with and without a FERS offset from March 2010 as follows: beginning March 2010, the SSA 

rate with FERS was $1,425.50 and without FERS was $589.60; beginning December 2010 the 

SSA rate with FERS was $1,425.50 and without FERS was $589.60; beginning December 2011 

the SSA rate with FERS was $1,476.90 and without FERS was $610.80; beginning February 2013

the SSA rate with FERS was $1,864.50 and without FERS was $771.10; beginning December

2013 the SSA rate with FERS was $1,892.40 and without FERS was $782.60; beginning December

2014 the SSA rate with FERS was $1,924.50 and without FERS was $795.90; beginning December

2015 the SSA rate with FERS $1,924.50 and without FERS was $795.90; beginning December

2016 the SSA rate with FERS was $1,930.20 and without FERS was $798.20; beginning December

2017 the SSA rate with FERS was $1,968.80 and without FERS was $814.10; beginning December

2018 the SSA rate with FERS was $2,023.90 and without FERS was $836.80; and beginning 

December 2019 the SSA rate with FERS was $2,056.20 and without FERS was $850.10; beginning

December 2020, the SSA rate with FERS was $2,082.90 and without FERS was $861.10 and 

beginning April 2021, the SSA rate with FERS was $2,082.90 and without FERS was $861.10.

The bottom of the form indicated that appellant was receiving disability benefits from 

February 2012 through January 2013.

On April 26, 2021 OWCP prepared a FERS offset overpayment calculation worksheet, 

based on the benefits rates provided by SSA, wherein it noted the calculations of appellant’s 

overpayment from March 1, 2010. It determined: for the period March 1 through November 30, 

4 On November 1, 2010 appellant underwent OWCP-authorized right L5-S1 laminectomy, L5 discectomy, and S1 

foraminotomy.
3

2010 appellant received an overpayment of $7,578.21; for the period December 1, 2010 through 

November 30, 2011 appellant received an overpayment of $10,058.36; for the period December 1, 

2011 through January 31, 2012 appellant received an overpayment of $1,770.27; for the period 

February 1, 2013 through November 30, 2013 appellant received an overpayment of $10,921.98; 

for the period December 1, 2013 through November 30, 2014 appellant received an overpayment 

of $13,354.19; for the period December 1, 2014 through November 30, 2015 appellant received 

an overpayment of $13,580.41; for the period December 1, 2015 through November 30, 2016 

appellant received an overpayment of $13,617.61; for the period December 1, 2016 through 

November 30, 2017 appellant received an overpayment of $13,621.32; for the period December 1, 

2017 through November 30, 2018 appellant received an overpayment of $13,894.47; for the period 

December 1, 2018 through November 30, 2019 appellant received an overpayment of $14,284.34; 

for the period December 1, 2019 through November 30, 2020 appellant received an overpayment 

of $14,552.72; and for the period December 1, 2020 through April 24, 2021 appellant received an 

overpayment of $5,840.47. The total overpayment was determined to be $133,074.35. 

On April 27, 2021 OWCP advised appellant that it was adjusting her wage-loss 

compensation to offset the portion of her SSA age-related retirement benefits attributable to her 

federal service. It informed her that the portion of the SSA benefits that she earned as a federal 

employee was part of the FERS retirement package and that FECA did not allow the simultaneous 

receipt of workers’ compensation and federal retirement benefits.

On December 28, 2021 OWCP notified appellant of its preliminary overpayment 

determination that she received an overpayment of compensation in the amount of $133,074.35, 

for the period March 1, 2010 through April 24, 2021, because she concurrently received FECA 

wage-loss compensation benefits and SSA age-related retirement benefits attributable to his 

federal service, without an appropriate offset.5 It determined that she 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 payment method and advised 

her that she could request waiver of recovery of the overpayment. It further requested that she 

provide supporting documentation, including copies of income tax returns, bank account 

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

expenses. Additionally, OWCP provided an overpayment action request form and further 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.

On February 22, 2022 OWCP received an overpayment action request form in which 

appellant requested a decision based on the written evidence and waiver of recovery of the 

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

Appellant submitted a Form OWCP-20, signed on February 11, 2022, in which she listed 

5 On April 26, 2021 OWCP had issued a preliminary notice advising appellant of its preliminary overpayment 

determination that she received an overpayment of compensation in the amount of $133,074.35, for the period 

March 1, 2010 through April 24, 2021. Appellant requested a hearing before a representative of OWCP’s Branch of 

Hearings and Review and, after a preliminary review, OWCP’s hearing representative vacated the April 26, 2021 

preliminary overpayment determination and remanded the case to OWCP. The hearing representative found that 

OWCP had not adequately explained the creation of the claimed overpayment because it had provided an overpayment 

calculation worksheet in its April 26, 2021 preliminary overpayment determination that was illegible. When it issued 

its new preliminary overpayment determination on December 28, 2021, OWCP provided overpayment calculations 

that were legible.
4

$3,673.58 in monthly income, $3,389.36 in monthly expenses, and $13,891.02 in assets. The 

assets were held under the categories of stocks and bonds(individual retirement account), checking 

account balance, savings account balance, cash on hand, and personal property. Appellant 

provided documentation pertaining to a portion of the figures contained in the Form OWCP-20.

By decision dated March 31, 2022, OWCP finalized the preliminary overpayment 

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

$133,074.35, for the period March 1, 2010 through April 24, 2021, because she concurrently

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

an appropriate offset. 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 failed to establish 

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

conscience. OWCP required recovery of the overpayment by deducting $112.71 from appellant’s 

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.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 OWCP to reduce the 

amount of compensation by the amount of any SSA age-related retirement benefits that are 

attributable to the employee’s federal service.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 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 $133,074.35, for the period March 1, 2010 through April 24, 

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. 

OWCP paid appellant FECA wage-loss compensation on the supplemental rolls effective 

June 6, 2009 and on the periodic rolls, effective August 2, 2009. Appellant received SSA agerelated retirement benefits beginning March 1, 2010. As noted, a claimant cannot receive 

concurrent FECA wage-loss compensation and SSA age-related retirement benefits attributable to 

6 5 U.S.C. § 8102.

7

Id. at § 8116.

8 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

9 FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
5

federal service for the same period.10 The information provided by SSA established that a portion

of appellant’s benefits were attributable to her federal service. Thus, the record establishes that 

she received an overpayment of FECA wage-loss compensation.

11

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 appellant’s specific SSA age-related retirement benefits

that were attributable to federal service. It provided its rate with FERS and without FERS for 

specific periods from March 1, 2010 through April 24, 2021. OWCP provided its calculations for 

each relevant period based on SSA’s worksheet and determined that appellant received an 

overpayment in the amount of $133,074.35. 

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

appellant received prohibited dual benefits totaling $133,074.35, for the period March 1, 2010 

through April 24, 2021.

12

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA13 provides that an overpayment must be recovered 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.” Thus, a 

finding that appellant was without fault does not automatically result in waiver of recovery 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.14

According to 20 C.F.R. § 10.436, 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 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’s liquid assets 

include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual 

funds, and certificates of deposits. Nonliquid assets include, but are not limited to, the fair market 

10 M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., id.; A.C., Docket No. 18-1550 (issued 

February 21, 2019).

11 See K.H., Docket No. 18-0171 (issued August 2, 2018).

12 See L.W., Docket No. 19-0787 (issued October 23, 2019); L.L., Docket No. 18-1103 (issued March 5, 2019).

13 5 U.S.C. § 8129(1)-(b); A.C., Docket No. 18-1550 (issued February 21, 2019); see D.C., Docket No. 17-0559 

(issued June 21, 2018).

14 A.C., id.; see V.T., Docket No. 18-0628 (issued October 25, 2018).

15 20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her 

current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment 

Determinations, Chapter 6.400.4a(3) (September 2020). OWCP’s procedures further provide that 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. Id. at Chapter 6.400.4a(2).
6

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.16

According to 20 C.F.R. § 10.437 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.17 To establish that a valuable right has been relinquished, it must be 

shown that the right was in fact valuable, that it cannot be regained, and that the action was based 

chiefly or solely in reliance on the payments or on the notice of payment.18

Section 10.438 of OWCP’s 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 recovery 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 

of recovery of the overpayment.19

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 of recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience.20 

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because she has not shown both that she needs substantially all of her current income to 

meet ordinary and necessary living expenses and that her assets do not exceed the allowable 

resource base. As she has assets of $13,891.02, her assets exceed the $6,200.00 allowable resource 

base of a claimant without dependents.

21

 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 

unnecessary for OWCP to consider the first prong of the test, i.e., whether she needs substantially 

all of her current income to meet ordinary and necessary living expenses.

The Board 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 because she 

16 Id. at Chapter 6.400.4b(3)(a), (b).

17 20 C.F.R. § 10.437(a), (b).

18 Id. at § 10.437(b)(1).

19 20 C.F.R. § 10.438.

20 Id. at § 10.436.

21 See supra note 16.
7

has not shown, for the reasons noted above, that she would experience severe financial hardship 

in attempting to repay the debt or that she relinquished a valuable right or changed her position for 

the worse in reliance on the payment which created the overpayment.22 

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

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.23 Section 10.441 

of Title 20 of the Code of Federal Regulations provides that if an overpayment of compensation 

has been made to one entitled to future payments, proper adjustment shall be made by decreasing 

subsequent 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.”

24

 

ANALYSIS -- ISSUE 3

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

$112.71 from appellant’s continuing compensation payments every 28 days.

The record supports that, in requiring recovery of the overpayment by deducting $112.71 

from appellant’s compensation payments every 28 days, OWCP took into consideration the 

financial information submitted by her as well as the factors set forth in section 10.441 and found 

that this method of recovery would minimize any resulting hardship on appellant. Therefore, the 

Board finds that OWCP properly required recovery of the overpayment by deducting $112.71 from 

appellant’s continuing compensation payments every 28 days.

CONCLUSION

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

of compensation in the amount of $133,074.35, for the period March 1, 2010 through April 24, 

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

properly required recovery of the overpayment by deducting $112.71 from appellant’s continuing 

compensation payments every 28 days.

22 See L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

23 M.P., Docket No. 18-0902 (issued October 16, 2018); Albert Pinero, 51 ECAB 310 (2000); Lorenzo Rodriguez, 

51 ECAB 295 (2000).

24 20 C.F.R. § 10.441; see A.F., Docket No. 19-0054 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056, 

1062 (1988).
8

ORDER

IT IS HEREBY ORDERED THAT the March 31, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 7, 2023

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