United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.P., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

72ND MISSION SUPPORT SQUADRON, 

TINKER AIR FORCE BASE, OK, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0881

Issued: October 27, 2021

Appearances: Case Submitted on the Record

Lisa Varughese, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 21, 2021 appellant, through counsel, filed a timely appeal from a December 1, 

2020 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 December 1, 2020 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 $52,892.77, for which she was without fault, 

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

Administration (SSA) age-related retirement benefits for the period February 1, 2015 through 

October 10, 2020, without an appropriate offset; (2) whether it properly denied waiver of recovery 

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

deducting $702.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On November 2, 2006 appellant, then a 55-year-old inventory management specialist, filed 

a traumatic injury claim (Form CA-1) alleging that on September 8, 2006 she sustained injury 

when she stepped into a pothole, thereby slightly twisting her left ankle, and fell to the ground on 

her right knee the palms of her hands while in the performance of duty. She stopped work on the 

date of the claimed injury. OWCP accepted that appellant sustained an open wound of the right 

knee, derangement of the medial and lateral menisci of the right knee, bilateral sprains of the 

shoulders/upper arms, brachial neuritis or radiculitis, rotator cuff sprain of the left shoulder, and 

reaction to spinal or lumbar puncture. It paid her wage-loss compensation for disability from work 

on the supplemental rolls commencing May 28, 2009 and on the periodic rolls commencing 

June 30, 2013. 

On August 28, 2020 OWCP requested that SSA provide information as to whether 

appellant had received Federal Employees Retirement System (FERS)/SSA dual benefits. 

On September 15, 2020 SSA completed a FERS/SSA dual benefit calculation form, which 

indicated appellant’s SSA benefit rates with a FERS offset and without a FERS offset commencing 

February 1, 2015. Beginning February 1, 2015, the SSA rate with FERS was $1,696.90 and 

without FERS was $943.30; beginning December 1, 2015 the SSA rate with FERS was $1,696.90

and without FERS was $943.30; beginning December 1, 2016 the SSA rate with FERS was 

$1,701.90 and without FERS was $946.00; beginning December 1, 2017 the SSA rate with FERS 

was $1,735.90 and without FERS was $964.90; beginning December 1, 2018 the SSA rate with 

FERS was $1,784.50 and without FERS was $991.90; and beginning December 1, 2019 the SSA 

rate with FERS was $1,813.00 and without FERS was $1,007.80. 

On October 20, 2020 OWCP prepared a FERS offset calculation based on the SSA 

documentation wherein it noted the calculation of appellant’s overpayment from February 1, 2015. 

It determined that during the period February 1 through November, 2015 appellant received an 

overpayment of $7,527.72; during the period December 1, 2015 through November 30, 2016 she 

received an overpayment of $9,092.89; during the period December 1, 2016 through 

November 30, 2017 she received an overpayment of $9,095.72; during the period December 1, 

2017 through November 30, 2018 she received an overpayment of $9,277.42; during the period 

December 1, 2018 through November 30, 2019 she received an overpayment of $9,537.33; and

during the period December 1, 2019 through October 10, 2020 she received an overpayment of 

$8,361.69. OWCP found a total overpayment in the amount of $52,892.77.

In a preliminary overpayment determination dated October 21, 2020, OWCP advised 

appellant that it had preliminarily determined that she received a $52,892.77 overpayment of 
3

compensation for the period February 1, 2015 through October 10, 2020, because she received 

SSA age-related retirement benefits based on her age and attributable to her federal service, 

without an offset being made, while she received FECA compensation benefits. It also 

preliminarily determined that appellant was without fault in the creation of the overpayment. 

OWCP instructed her to submit a completed overpayment recovery questionnaire (Form OWCP20), to determine whether waiver of recovery of the overpayment should be granted. It informed 

her 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. OWCP provided appellant with an overpayment action request form and notified her

that, within 30 days of the date of the letter, she could request a telephone conference, a final 

decision based on the written evidence, or a prerecoupment hearing.

On November 20, 2020 OWCP received appellant’s Form OWCP-20, which indicated the 

appellant had $67,870.61 in assets, however, no supporting financial documentation was received

By decision dated December 1, 2020, OWCP finalized its preliminary overpayment 

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

$52,892.77,for the period February 1, 2015 through October 10, 2020, because she received SSA 

retirement benefits based on her age and attributable to her federal service, without an offset being 

made, while she received FECA compensation benefits. Itfurther found that she was without fault 

in the creation of the overpayment, but denied waiver of recovery of the overpayment because her

assets exceeded the allowance resource base of $6,200.00 for a claimant, like appellant, with no 

spouse or dependent. OWCPindicated that appellant submitted no financial documentssupporting 

her claimed monthly expenses and required recovery of the overpayment by deducting $702.00 

from her 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 

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 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.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

4

5 U.S.C. § 8102.

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August20, 2018).

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

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $52,892.77, for which she was without fault, because she 

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

the period February 1, 2015 through October 10, 2020, without an appropriate offset.8

The evidence of record indicates that, while appellant was receiving wage -loss 

compensation benefits under FECA, she was also receiving SSA age-related retirement benefits 

based upon her federal service. As explained, a claimant cannot receive concurrent wage-loss 

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 

February 1, 2015 through October 10, 2020 while she was receiving wage-loss compensation on 

the periodic rolls. Consequently, the fact of overpayment has been established.

To determine the amount of the overpayment, the portion of SSA’s age-related retirement 

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 February 1, 2015 through October 10, 2020. OWCP properly

calculated the overpayment amount for each relevant period based on SSA’s worksheet. 

On appeal counsel argues that the amount the overpayment was incorrect because appellant 

had not received SSA benefits in the amounts alleged by OWCP, but counsel did not identify 

evidence supporting this assertion.

The Board thus finds that appellant received prohibited dual benefits in the amount of

$52,892.77 for the period February 1, 2015 through October 10, 2020, without an appropriate 

offset.

10

LEGAL PRECEDENT -- ISSUE 2

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.11 Section 8129 of FECA12

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 

8 E.L., Docket No. 20-0723 (issued October 15, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020); A.F., 

Docket No. 19-0054 (issued June 12, 2019).

9 E.L., id.

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

11 See L.D., Docket No. 18-1317 (issued April 17, 2019); P.J., Docket No. 18-0248 (issued August 14, 2018); 

Robert Atchison, 41 ECAB 83, 87 (1989).

12 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).
5

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. 13

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. 14 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 

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.15

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.16 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.17

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.18

ANALYSIS -- ISSUE 2

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

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

14 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).

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

16 20 C.F.R. § 10.437(a), (b).

17 Id. at § 10.437(b)(1).

18 20 C.F.R. § 10.438.
6

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. 19 Appellant, 

however, had the responsibility to provide financial information to OWCP.

In its preliminary overpayment determination dated October 21, 2020, OWCP explained 

the importance of providing a completed Form OWCP-20 and supporting financial documentation, 

including copies of income tax returns, bank account statement, bills, pay slips, and any other 

records to support income and expenses. It advised appellant that it would deny waiver of recovery 

if she failed to furnish the requested financial information within 30 days. Appellant, however, 

did notfully complete the Form OWCP-20 or otherwise submit the financial information necessary 

for OWCP to determine if recovery of the overpayment would defeat the purpose of FECA or if 

they recovery would be against equity and good conscience. 

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 properly determined by OWCP, she did not qualify for waiver of recovery of 

the overpayment because her assets exceeded the allowable resource base of $6,200.00 for a 

claimant, like herself, who had no spouse or dependent. 20 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 was unnecessary for OWCPto consider the first prong of the test, i.e., whether 

appellant needs substantially all of her current income to meet current ordinary and necessary 

living expenses.

The Board finds, for the reasons noted above, 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.21 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.”

22

 When an individual fails to provide the 

requested information on income, expenses and assets, OWCP should follow minimum collection 

19 Id. at § 10.436.

20 See supra note 14.

21 R.W., Docket No. 19-0451 (issued August7, 2019); C.A., Docket No. 18-1284 (issued April15, 2019); Albert 

Pinero, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51 ECAB 295 (2000).

22 20 C.F.R. § 10.441; see A.F.,supra note 8; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).
7

guidelines, which state in general that government claims should be collected in full and that, if an 

installment plan is accepted, the installments should be large enough to collect the debt promptly.23

ANALYSIS -- ISSUE 3

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

$702.00 from appellant’s continuing compensation payments every 28 days.

The record supports that, in requiring recovery of the overpayment by deducting $702.00

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

the factors set forth in section 10.441 and found that this method of recovery would minimize any 

resulting hardship on appellant. OWCP followed minimum collection guidelines by requiring 

installments large enough to collect the full debt promptly. Therefore, the Board finds that OWCP 

properly required recovery of the overpayment by deducting $702.00 from appellant’s continuing 

compensation payments every 28 days.

CONCLUSION

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

$52,892.77, for which she was without fault, because she concurrently received FECA wage-loss 

compensation and SSA age-related retirement benefits for the period February 1, 2015 through 

October 10, 2020. The Board further finds that OWCP properly denied appellant’s request for 

waiver of recovery of the overpayment, and properly required recovery of the overpayment by 

deducting $702.00 from appellant’s continuing compensation payments every 28 days.

23 R.O., Docket No. 18-0076 (issued August 3, 2018); GailM. Roe, 47 ECAB 268 (1995).
8

ORDER

IT IS HEREBY ORDERED THAT the December 1, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 27, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board