United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.A., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Chicago, IL, 

Employer

__________________________________________

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Docket No. 23-0868

Issued: November 9, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 12, 2023 appellant, through counsel, filed a timely appeal from a May 19, 2023 

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 to consider the merits of this case.

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.
2

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $28,220.59 for the period February 24, 2020 through September 10, 2022, for which he 

was without fault, because he concurrently received FECA wage-loss compensation 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 $671.01 from appellant’s 

continuing compensation payments, every 28 days.

FACTUAL HISTORY

On January 10, 2020 appellant, then a 69-year-old tractor trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that on January 9, 2020 he sustained a right shoulder strain

when he pulled a fifth wheel release to drop a trailer in a lot while in the performance of duty. He 

stopped work on January 9, 2020. OWCP accepted the claim for tear of right supraspinatus tendon. 

It paid appellant wage-loss compensation commencing February 24, 2020. 

On August 19, 2022 OWCP provided SSA with a Federal Employees Retirement System 

(FERS)/SSA dual benefits form.

On September 1, 2022 SSA completed the dual benefits form, reporting appellant’s SSA 

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

March 2016 through December 2021. Beginning March 2016, the SSA rate with FERS was 

$2,362.30 and without FERS was $1,512.90; beginning December 2016, the SSA rate with FERS 

was $2,369.30 and without FERS was $1,517.40; beginning January 2017, the SSA rate with FERS 

was $2,383.30 and without FERS was $1,517.40; beginning December 2017, the SSA rate with 

FERS was $2,430.90 and without FERS was $1,547.70; beginning December 2018, the SSA rate 

with FERS was $2,498.90 and without FERS was $1,591.00; beginning January 2019, the SSA 

rate with FERS was $2,507.60 and without FERS was $1,591.00; beginning December 2019, the 

SSA rate with FERS was $2,547.70 and without FERS was $1,616.40; beginning December 2020,

the SSA rate with FERS was $2,587.50 and without FERS was $1,694.80; and beginning 

December 2021, the SSA rate with FERS was $2,740.10 and without FERS was $1,794.70.

In a FERS offset overpayment calculation worksheet dated September 20, 2022, OWCP 

calculated a total overpayment of $28,220.59. It found that during the period February 24 through 

March 28, 2020 appellant had received an overpayment of $1,043.87; from March 29 through 

April 25, 2020 he had received an overpayment of $859.66; from April 26 through May 23, 2020 

appellant had received an overpayment of $859.66; from May 24 through June 20, 2020 he had 

received an overpayment of $859.66; from June 21 through July 18, 2020 appellant had received 

an overpayment of $859.66; from July 19 through August 15, 2020 he had received an 

overpayment of $859.66; from August 16 through September 12, 2020 appellant had received an 

overpayment of $859.66; from September 13 through November 7, 2020 he had received an 

overpayment of $1,719.32; from November 8 through 30, 2020 appellant had received an 

overpayment of $706.15; from December 1 through 5, 2020 he had received an overpayment of 

$147.15; from December 6, 2020 through January 2, 2021 appellant had received an overpayment 

of $824.03; from January 3 through 30, 2021 he had received an overpayment of $824.03; from 
3

January 31 through February 27, 2021 appellant had received an overpayment of $824.03; from 

February 28 through March 27, 2021 he had received an overpayment of $824.03; from March 28 

through April 24, 2021 appellant had received an overpayment of $824.03; from April 25 through

May 22, 2021 he had received an overpayment of $824.03; from May 23 through June 19, 2021 

appellant had received an overpayment of $824.03; from June 20 through July 17, 2021 he had 

received an overpayment of $824.03; from July 18 through August 14, 2021 appellant had received 

an overpayment of $824.03; from August 15 through September 11, 2021 he had received an 

overpayment of $824.03; from September 12 through October 9, 2021 appellant had received an 

overpayment of $824.03; from October 10 through November 6, 2021 he had received an 

overpayment of $824.03; from November 7 through 30, 2021 appellant had received an 

overpayment of $706.31; from December 1 through 4, 2021 he had received an overpayment of 

$124.67; from December 5, 2021 through January 1, 2022 appellant had received an overpayment 

of $872.68; from January 2 through 29, 2022 he had received an overpayment of $872.68; from 

January 30 through February 26, 2022 appellant had received an overpayment of $872.68; from 

February 27 through March 26, 2022 he had received an overpayment of $872.68; from March 27 

through April 23, 2022 appellant had received an overpayment of $872.68; from April 24 through 

May 21, 2022 he had received an overpayment of $872.68; from May 22 through June 18, 2022 

appellant had received an overpayment of $872.68; from June 19 through July 16, 2022 he had 

received an overpayment of $872.68; from July 17 through August 13, 2022 he had received an 

overpayment of $872.68; and from August 14 through September 10, 2022 appellant had received 

an overpayment of $872.68. 

In a preliminary overpayment determination dated November 10, 2022, OWCP notified 

appellant that he had received an overpayment of compensation in the amount of $28,220.59 

because his wage-loss compensation benefits had not been reduced for the period February 24, 

2020 through September 10, 2022 by the portion of his SSA benefits that were attributable to his 

federal service. It calculated the overpayment amount by determining the difference between his 

SSA age-related retirement benefit rates with and without FERS for the stated period and totaling 

this amount to find an overpayment of $28,220.59.

3

 OWCP further advised appellant of its 

preliminary overpayment determination that he was without fault in the creation of the 

overpayment. It requested that he complete an overpayment action request form and an 

overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial 

documentation including tax returns, bank account statements, bills and cancelled checks, pay 

slips, and other records which supported income and expenses listed. Additionally, OWCP notified 

appellant that he could request a final decision based on the written evidence or a prerecoupment 

hearing within 30 days.

On November 22, 2022 appellant requested a prerecoupment hearing before a 

representative of OWCP’s Branch of Hearings and Review. He contested the fact and amount of 

the overpayment and requested waiver of recovery.

3 OWCP informed appellant that his compensation would be offset by the portion of his SSAage-related retirement 

benefits attributable to his federal service, effective September 11, 2022. 
4

Appellant completed a Form OWCP-20 on November 22, 2022. He reported monthly 

income totaling $2,740.00 and monthly expenses totaling $4,400.00. Appellant further reported 

assets totaling $2,500.00. 

Following a March 21, 2023 telephonic hearing, appellant submitted a revised Form 

OWCP-20 dated April 14, 2023. He reported monthly income totaling $5,785.02 and monthly 

expenses totaling $6,555.00. Appellant also reported assets totaling $207,900.00. He submitted

supporting financial documentation. 

By decision dated May 19, 2023, an OWCP hearing representative finalized the 

preliminary overpayment determination that appellant had received an overpayment of 

compensation in the amount of $28,220.59 for the period February 24, 2020 through 

September 10, 2022. The hearing representative determined that he was without fault in the 

creation of the overpayment but, denied waiver of recovery of the overpayment. The hearing 

representative required recovery of the overpayment by deducting $671.01 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 duty.4 However, section 8116 also 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 When an overpayment has been made 

to an individual because of an error of fact or law, adjustment shall be made under regulations 

prescribed by the Secretary of Labor by decreasing later payments to which the individual is 

entitled.6

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

of compensation by the amount of any SSA benefits that are attributable to the employee’s federal

service.7 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.8

4

Supra note 2 at § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see B.W.,Docket No. 21-0277 (issued May 6, 2022; R.R., Docket No. 19-0104 (issued 

March 9, 2020); T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

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

ANALYSIS -- ISSUE 1

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

$28,220.59 for the period February 24, 2020 through September 10, 2022, for which he was 

without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits, without an appropriate offset.

In a May 19, 2023 decision, OWCP’s hearing representative found that an overpayment of 

compensation was created for the period February 24, 2020 through September 10, 2022. The 

overpayment was based on the evidence received from SSA with respect to retirement benefits 

paid to appellant. As noted, a claimant cannot receive both compensation for wage loss 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 beginning February 24, 2020. OWCP, however, 

neglected to offset his FECA benefits until September 10, 2022. Accordingly, the Board finds that 

fact of overpayment has been established.

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 SSA age-related retirement benefits that were attributable to 

federal service. The SSA provided appellant’s SSA rates with FERS and without FERS for the 

period February 24, 2020 through September 10, 2022. OWCP provided its calculations of the 

amount that it should have offset during the relevant period based on the SSA worksheet. 

The Board has reviewed OWCP’s calculation of SSA age-related retirement benefits 

received by appellant for the period February 24, 2020 through September 10, 2022 and finds that 

an overpayment of compensation in the amount of $28,220.59 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

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

9

Id.

10 See M.M., Docket No. 23-0129 (issued May 19, 2023); J.H., Docket No. 22-1375 (issued May 16, 2023); P.M., 

Docket No. 21-0915 (issued December 14, 2021); K.W., Docket No. 20-1169 (issued April 7, 2021); W.C., Docket No.

20-1241 (issued February 9, 2021).

11 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued 

December 21, 2017).
6

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 $50.00.12 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.13 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. 14 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

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; 

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 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.17

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 recovery is still required unless adjustment or recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience. 18

The Board finds that as appellant reported $207,900.00 in total assets in a Form OWCP-20 

on April 14, 2023, he has not met the standard for waiver of recovery of the overpayment because 

his assets exceed the allowable resource base of $10,300.00 for an individual with a spouse, such 

as appellant.

19

 Because he has not met the second prong of the two-prong test of whether recovery 

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

6.400.4a(2) (September 2020); N.J., Docket No. 19-1170 (issued January 10, 2020);M.A., Docket No. 18-1666 

(issued April 26, 2019).

13 Id. at Chapter 6.400.4.a(2) (September 2020).

14 Id. at Chapter 6.400.4.b(3).

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

16 20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

17 Supra note 12 at Chapter 6.400.4c(3) (September 2020).

18 20 C.F.R. § 10.436.

19 Supra note 12 at Chapter 6.400.4c(3) (September 2020).
7

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.20 Appellant has not established that he was entitled to 

waiver on the basis of defeating the purpose of FECA.21

Additionally, appellant has not established that recovery of the overpayment would be 

against equity and good conscience because he has not shown, for the reasons noted above, that 

he would experience severe financial hardship in attempting to repay the debt or that he 

relinquished a valuable right or changed his position for the worse in reliance on the payment 

which created the overpayment. Therefore, OWCP properly found that recovery of the 

overpayment would not defeat the purpose of FECA or be against equity and good conscience.22

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 $38,895.43 overpayment.23

LEGAL PRECEDENT -- ISSUE 3

Section 10.441(a) of OWCP’s regulations24 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.”

25

ANALYSIS -- ISSUE 3

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

$671.01 from appellant’s continuing compensation payments, every 28 days.

OWCP gave due regard to the financial information submitted, as well as the factors set 

forth in 20 C.F.R. § 10.441 and found that this method of recovery would minimize resulting 

20 H.S., Docket No. 22-1040 (issued May 12, 2023); J.C.,Docket No. 22-1296 (issued May 3, 2023); P.B.,Docket 

No. 22-0976 (issued April 17, 2023); R.G., Docket No. 21-0491 (issued March 23, 2023).

21 Id.

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

23 J.C., supra note 20; P.B., supra note 20; D.M., Docket No. 17-0810 (issued October 2, 2017).

24 20 C.F.R. § 10.441(a).

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

hardship. Therefore, it properly required recovery of the overpayment by deducting $671.01 every 

28 days from appellant’s continuing compensation payments.26

CONCLUSION

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

$28,220.59 for the period February 24, 2020 through September 10, 2022, for which he was 

without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated 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 $671.01 from appellant’s continuing FECA compensation, every 28 

days.

ORDER

IT IS HEREBY ORDERED THAT the May 19, 2023 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: November 9, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

26 J.H., supra note 10; P.M., supra note 10; M.B., Docket No. 20-1578 (issued March 25, 2021).