United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.S., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, INDIAN HEALTH SERVICE, 

ALASKA AREA NATIVE HEALTH SERVICE,

Sitka, AK, Employer

__________________________________________

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Docket No. 22-1354

Issued: May 1, 2023

Appearances: Case Submitted on the Record

Tiffany Snead, Esq., for the appellant1

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 September 21, 2022 appellant, through counsel, filed a timely appeal from an April 1, 

2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

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

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

ISSUES

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

overpayment of compensation in the amount of $92,159.31, for the period June 1, 2009 through 

July 20, 2019, 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; and (2) whether OWCP properly denied waiver of recovery of the 

overpayment.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On April 5, 2004 appellant, then a 56-year-old medical technician, filed a traumatic injury 

claim (Form CA-1) alleging that, on April 1, 2004, she sustained a back injury when drawing blood 

from an infant while in the performance of duty. OWCP initially accepted the claim for lumbar 

strain, and later expanded its acceptance of the claim to include permanent aggravation of facet 

arthropathy, lumbar degenerative spondylosis at L4-5 and L5-S1, and radiculopathy of the left 

lower extremity. Appellant stopped work on March 5, 2007. OWCP paid her wage-loss 

compensation on the supplemental rolls as of March 11, 2007, and on the periodic rolls as of 

July 8, 2007.

By decision dated February 19, 2020, an OWCP hearing representative finalized an 

August 8, 2019 preliminary overpayment determination that appellant had received an 

overpayment of compensation in the amount of $101,944.10 because the Federal Employees 

Retirement System (FERS) offset was not applied to payments for the period June 1, 2009 through 

July 20, 2019. He further found that she was without fault in the creation of the overpayment but

denied waiver of recovery of the overpayment. OWCP’s hearing representative noted that 

additional information had been received regarding appellant’s request for waiver of the 

overpayment, but the waiver could not be granted as the evidence did not substantiate that 

adjustment or recovery of the overpayment would defeat the purpose of FECA or be against equity 

and good conscience. He required recovery of the overpayment by monthly payments of $900.00. 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the April 1, 2022 decision, OWCP received additional evidence. 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.

4 Docket No. 21-0028 (issued September 3, 2021).
3

OWCP noted that interest would begin to accrue as of the date of the letter at the rate of the U.S. 

Treasury Note.

On May 20, 2020 appellant, through counsel, requested a change in her repayment plan for 

the overpayment due to loss of rental income.

Following a review of the merits of appellant’s claim on OWCP’s own motion pursuant to 

5 U.S.C. § 8128, by decision dated July 20, 2020, an OWCP hearing representative set aside 

OWCP’s February 19, 2020 decision and remanded the case for an amended finalized 

overpayment decision, as there was a technical error regarding the interest rate. The hearing 

representative also altered the repayment schedule to $800.00 monthly in consideration of the 

reported loss of anticipated income from rental property.

By decision dated July 29, 2020, OWCP issued an amended final overpayment decision 

that appellant had received an overpayment of compensation in the amount of $101,944.10 because 

the FERS offset was not applied to payments for the period June 1, 2009 through July 20, 2019. 

It further found that she was without fault in the creation of the overpayment, but denied waiver 

of recovery of the overpayment, referring to the July 20, 2020 decision. OWCP required recovery 

of the overpayment by monthly payments of $800.00.

On October 5, 2020 appellant, through counsel, appealed the July 29, 2020 merit decision 

to the Board. In a decision dated September 3, 2021, the Board found that OWCP had established 

fact of overpayment, but that the case was not in posture for decision with regard to the amount of 

the overpayment, as OWCP had received two sets of figures for appellant’s SSA benefit rates with 

and without FERS offset. As such, the Board affirmed in part, and set aside in part, OWCP’s 

July 29, 2020 decision, and remanded the case to OWCP to seek clarification from SSA regarding 

the conflicting information it provided regarding the SSA payments appellant was entitled to 

receive without a FERS offset. The Board instructed OWCP to then issue a new preliminary 

overpayment determination with an overpayment action request form, a Form OWCP-20, and 

instructions for appellant to provide supporting financial information to be followed by a de novo 

decision.

On September 7, 2021 OWCP forwarded a FERS/SSA dual benefits calculation form to 

SSA. It noted that a discrepancy existed between the SSA rates with and without FERS provided 

in SSA’s June 27, 2013, and June 15, 2019 responses. OWCP requested that SSA review and 

provide correct SSA rates with and without FERS.

On September 18, 2021 OWCP received a completed FERS/SSA dual benefits form from 

SSA. SSA noted that appellant began receiving retirement benefits in March 1993. The form 

indicated: beginning June 2009, December 2009, and December 2010, her SSA rate with FERS 

was $1,045.60 and without FERS was $454.60; beginning December 2011, her SSA rate with 

FERS was $1,083.20 and without FERS was $471.00; beginning December 2012, her SSA rate 

with FERS was $1,101.60 and without FERS was $479.00; beginning May 2013, her SSA rate 

with FERS was $1,460.80 and without FERS was $479.00; beginning December 2013, her SSA 

rate with FERS was $1,482.70 and without FERS was $486.20; beginning December 2014 and 

December 2015, her SSA rate with FERS was $1,507.90 and without FERS was $494.40; 

beginning December 2016, her SSA rate with FERS was $1,512.40 and without FERS was 
4

$495.80; beginning December 2017, her SSA rate with FERS was $1,542.60 and without FERS 

was $505.70; beginning December 2018, her SSA rate with FERS was $1,585.70 and without 

FERS was $519.80; beginning December 2019, her SSA rate with FERS was $1,611.00 and 

without FERS was $528.10; and beginning December 2020, her SSA rate with FERS was 

$1,631.90 and without FERS was $535.00.

On October 8, 2021 OWCP requested clarification from SSA. It requested that SSA verify 

if appellant’s SSA rate with and without FERS was correct for the period beginning May 2013; to 

provide the correct figures if the previous figures were incorrect; and noted that SSA’s statement 

regarding appellant’s receipt of retirement benefits beginning in 1993 was not possible based on 

appellant’s birthdate.

On October 29, 2021 OWCP received a completed FERS/SSA dual benefits form from 

SSA. SSA indicated that OWCP should disregard prior rate determinations, as they were not 

adjusted for Medicare premiums. SSA explained that appellant elected reduced retirement 

insurance benefits (RIB) as of June 2009. As of full retirement age in May 2013, the retirement 

rate was adjusted removing the reduction, due to ongoing disability. The form indicated: 

beginning June 2009, her SSA rate with FERS was $1,045.00 and without FERS was $459.00; 

beginning July 2009, her SSA rate with FERS was $1,045.40 and without FERS was $459.40; 

beginning December 2009, her SSA rate with FERS was $1,045.50 and without FERS was 

$458.50; beginning December 2010, her SSA rate with FERS was $1,045.50 and without FERS 

was $458.50; beginning December 2011, her SSA rate with FERS was $1,082.90 and without 

FERS was $475.90; beginning December 2012, her SSA rate with FERS was $1,100.90 and 

without FERS was $483.90; beginning May 2013, her SSA rate with FERS was $1,459.90 and 

without FERS was $634.90; beginning December 2013, her SSA rate with FERS was $1,481.90 

and without FERS was $643.90; beginning December 2014 and December 2015, her SSA rate 

with FERS was $1,507.90 and without FERS was $654.90; beginning December 2016, her SSA 

rate with FERS was $1,512.00 and without FERS was $657.00; beginning December 2017, her 

SSA rate with FERS was $1,542.00 and without FERS was $670.00; beginning December 2018, 

her SSA rate with FERS was $1,585.50 and without FERS was $688.50; beginning 

December 2019, her SSA rate with FERS was $1,610.60 and without FERS was $699.60; and 

beginning December 2020, her SSA rate with FERS was $1,631.50 and without FERS was 

$708.50.

OWCP completed a FERS offset overpayment calculation form on February 3, 2022. It 

determined the 28-day FERS offset amount for the days in each period and computed a total 

overpayment of $92,159.31. The form indicated: from June 1 through 30, 2009 appellant received 

an overpayment of $579.56; from July 1 through November 30, 2009 an overpayment of 

$2,955.76; from December 1, 2009 through November 30, 2010 an overpayment of $7,063.35; 

from December 1, 2010 through November 30, 2011 an overpayment of $7,063.35; from 

December 1, 2011 through November 30, 2012 an overpayment of $7,324.02; from December 1, 

2012 through April 30, 2013 an overpayment of $3,071.44; from May 1 through November 30, 

2013 an overpayment of $5,820.33; from December 1, 2013 through November 30, 2014 an 

overpayment of $10,083.63;from December 1, 2014 through November 30, 2015 an overpayment 

of $10,264.12; from December 1, 2015 through November 30, 2016 an overpayment of 

$10,292.24; from December 1, 2016 through November 30, 2017 an overpayment of $10,288.19; 
5

from December 1, 2017 through November 30, 2018 an overpayment of $10,492.75; and from 

December 1, 2018 through July 20, 2019 an overpayment of $6,860.57.

On February 3, 2022 OWCP notified appellant that the overpayment decision of July 29, 

2020 had been vacated and the matter reopened. It issued a preliminary overpayment 

determination on February 3, 2022. OWCP indicated that appellant had been overpaid benefits 

during the period June 1, 2009 through July 20, 2019 in the amount of $92,159.31 because she 

received SSA age-related retirement benefits as part of an annuity under FERS concurrently with 

FECA wage-loss benefits, which was a prohibited dual benefit. Itfound that appellant was without 

fault in the creation of the overpayment. OWCP requested that appellant complete an enclosed 

Form OWCP-20 and submit supporting financial documentation, including income tax returns, 

bank account statements, bills and cancelled checks, pay slips, and any other records to support 

her reported income and expenses. Additionally, it provided an overpayment action request form 

and notified her 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 March 2, 2022 appellant, through counsel, requested a decision based on the written 

evidence regarding possible waiver as she was found to be without fault in the creation of the 

overpayment. In an attached Form OWCP-20, she reported monthly income of $8,484.09, 

monthly expenses of $8,664.71, and $718,567.69 in total assets. Appellant provided financial 

information to support these figures, but did not provide line items of expenses and bills to show 

the minimum amounts due each month.

By decision dated April 1, 2022, OWCP finalized its preliminary overpayment 

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

$92,159.31, for the period June 1, 2009 through July 20, 2019. It enclosed a FERS offset 

overpayment calculation form dated February 3, 2022. OWCP further found that appellant was 

without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment, 

finding that her assets of $718,567.69 exceeded the $10,300.00 asset base for an individual with a 

spouse plus $1,200.00 for each additional dependent. It required repayment of the overpayment 

at a rate of $800.00 per month.

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.5 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.6

Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount 

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

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.
6

federal service of the employee.7 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.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP has established that appellant received an overpayment of 

compensation in the amount of $92,159.31 during the period June 1, 2009 through July 20, 2019, 

for which she is without fault, as she concurrently received SSA age-related retirement benefits 

and FECA wage-loss compensation, without appropriate offset.

The Board preliminarily notes that it found in its September 3, 2021 decision that appellant 

received an overpayment of compensation for the period June 1, 2009 through July 20, 2019, for 

which she was without fault, without an appropriate offset. Findings made in prior Board decisions 

are res judicata absent further review by OWCP under section 8128 of FECA.9 Therefore, the 

Board’s prior finding regarding the fact and period of the overpayment is not subject to further 

consideration.

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 the specific amounts of SSA age-related retirement 

benefits that were attributable to federal service. In its response of October 29, 2021, SSA 

explained the prior variation of figures it had provided OWCP and provided corrected rates with 

FERS and without FERS during the specific period June 1, 2009 through July 20, 2019. In the 

April 1, 2022 final decision, OWCP provided its calculations for each relevant period based on 

SSA’s worksheet.

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

period June 1, 2009 through July 20, 2019 and finds that an overpayment of compensation in the 

amount of $92,159.31 has been established. OWCP obtained documentation from SSA 

establishing appellant’s SSA rates with and without FERS for the relevant period. SSA explained 

the inconsistencies in its prior documentation sent to OWCP. Therefore, the Board finds that

appellant received an overpayment of FECA compensation in the amount of $92,159.31 for the 

period June 1, 2009 through July 20, 2019.

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP unless “incorrect payment has been made to an individual who is without fault and 

7

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802 

(issued August 20, 2018).

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

9 T.C., Docket No. 21-0612 (issued December 2, 2021); T.W., Docket No. 20-0836 (issued July 21, 2021);

Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998). See also 20 C.F.R. § 501.6(d).
7

when adjustment or recovery would defeat the purpose of FECA or would be against equity and 

good conscience.”

10

 Section 10.438 of OWCP 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.11

The guidelines for determining whether recovery of an overpayment would defeat the 

purpose of FECA or would be against equity and good conscience are set forth in sections 10.434 

to 10.437 of OWCP’s regulations.12

Section 10.436 provides that 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 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. 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

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 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 and 

the value of stocks, bonds, saving accounts, mutual funds, and certificates of deposit. 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.16

ANALYSIS -- ISSUE 2

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

10 5 U.S.C. § 8129.

11 20 C.F.R. § 10.438.

12 Id. at §§ 10.434-10.437.

13 Id. at § 10.436.

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)(a), (b).
8

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. 17

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

defeat the purpose of FECA or be against equity and good conscience because her resource base 

included $718,567.69 in assets. This exceeds the resource base of $10,300.00 for an individual 

with a spouse plus $1,200.00 for each additional dependent as provided by OWCP’s procedures.18

As appellant failed to establish that, recovery of the overpayment of compensation would 

either defeat the purpose of FECA or be against equity and good conscience, the Board finds that 

OWCP did not abuse its discretion in denying waiver of recovery of the overpayment. 19

CONCLUSION

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

$92,159.31, for the period June 1, 2009 through July 20, 2019, 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.

17 Id. at § 10.436.

18 Id.

19 Supra note 15.
9

ORDER

IT IS HEREBY ORDERED THAT the April 1, 2022 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 1, 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