United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.A., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Louisville, KY, 

Employer

__________________________________________

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Docket No. 22-1383

Issued: June 14, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 

August 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 OWCP received additional evidence following the August 31, 2022 decision. 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 $33,813.89 during the period July 1, 2021 to 

March 26, 2022, for which he was without fault, as he concurrently received Office of Personnel 

Management (OPM) retirement benefits and FECA wage-loss compensation benefits; and 

(2) whether OWCP properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On May 18, 2018 appellant, then a 61-year-old tractor trailer operator, filed an 

occupational disease claim (Form CA-2) alleging that on March 12, 2018 he became aware that 

he had developed a right arm and shoulder condition and on April 22, 2018 he first realized that 

his condition was due to factors of his federal employment. He stopped work on April 22, 2018. 

OWCP accepted the claim for an incomplete rotator cuff tear or rupture of the right 

shoulder. It authorized right total reverse shoulder arthroplasty surgery which was performed on 

June 23, 2020. OWCP received a schedule award from February 27, 2019 to February 11, 2020. 

It paid appellant wage-loss compensation on the supplemental rolls as of May 14, 2020 and on the 

periodic rolls from July 19, 2020 through March 26, 2022.

On January 26, 2022 appellant completed a Form CA-1105 election form advising that he 

elected to receive OPM retirement benefits effective July 1, 2021.

In a letter dated April 14, 2022, OWCP advised OPM that appellant elected OPM 

retirement benefits effective July 1, 2021. It completed an overpayment calculation and noted that 

the effective date of the periodic rolls termination was March 27, 2022. OWCP determined that 

an overpayment in the amount of $33,813.89 had been created, as appellant continued to be paid 

FECA compensation after his election of OPM retirement benefits for the period July 1, 2021 

through March 26, 2022.

On April 14, 2022 OWCP issued a preliminary overpayment determination that an 

overpayment occurred in the amount of $33,813.89, for the period July 1, 2021 through March 26, 

2022, because appellant received prohibited dual benefit payments. It explained that the 

overpayment occurred because he concurrently received both FECA benefits and OPM retirement 

benefits during the period, which resulted in a prohibited dual benefit payment. OWCP provided 

appellant with its calculations listing the FECA compensation benefits that he received after his 

election of OPM benefits on July 1, 2021. Its calculations showed that he received FECA benefits 

from July 1 to 17, 2021 of $1,957.65; from July 18 to August 14, 2021, of $3,244.76; from 

August 15 to September 11, 2021, of $3,552.56; from September 12 to October 9, 2021 of 

$3,552.56; from October 10 to November 6, 2021 of $3,552.56; from November 7 to December 4, 

2021 of $3,552.56; from December 5, 2021 to January 1, 2022 of $3,552.56; from January 2 to 29, 

2022 of $3,552.52; from January 30 to February 26, 2022 of $3,552.52; and from February 27 to 

March 26, 2022 of $3,803.64, for a total of $33,813.89 in FECA workers’ compensation from 

July 1, 2021 to March 26, 2022. Appellant was found to be without fault in the creation of the 

overpayment because he could not have been aware that the payments were incorrect at the time 

he received them. OWCP requested that he complete an enclosed overpayment recovery 

questionnaire (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
3

to support his reported income and expenses. Additionally, it provided an overpayment action 

request form and notified appellant that, within 30 days of the date of the letter, he could request 

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

On April 19, 2022 appellant requested a prerecoupment hearing before a representative of 

OWCP’s Branch of Hearings and Review. He provided an OWCP-20, overpayment recovery 

questionnaire, dated April 25, 2022, and noted that he had $5,470.03 in monthly income, 

consisting of $2,352.10 in Social Security Administration benefits and $3,127.93 in other benefits. 

Appellant listed his monthly expenses as: rent/mortgage $797.04; food $1,400.00; clothing

$300.00; utilities $700.00; other miscellaneous expenses $1,100.00; monthly payment on Discover 

credit card $700.00; and monthly insurance on cars $300.00; for a total of $5,297.04 in monthly 

expenses. He noted that he had $1,000.00 in checking and savings accounts and cash on hand.

By letter dated June 13, 2022, OWCP advised appellant that in order to support his request 

for a waiver, he must submit copies of income tax returns, at least three months of bank account 

statements, canceled checks, pay slips, CDs, money market account, stocks, bonds, and any other 

records that supported the income, expenses, and assets listed on the OWCP-20 form. The letter 

advised him that, under 20 C.F.R. § 10.438, failure to submit the requested information would

result in denial of the waiver.

OWCP received a letter from OPM dated July 12, 2022, which confirmed that appellant 

began receiving OPM benefits as of July 1, 2021. 

In a letter dated July 22, 2022, OWCP informed appellant that effective July 17, 2022 he 

would be entitled to FECA benefits every 28 days in the amount of $4,189.00. However, appellant

had elected OPM benefits, and he was not entitled to receive OWCP and OPM benefits during the 

same period of time.

A telephonic hearing was held before the Branch of Hearings and Review on July 26, 2022. 

Appellant testified that in March or April 2021 he advised OWCP that he was going to retire, but 

OWCP continued to pay him. He indicated that his dependents included his wife and two adult 

disabled stepchildren. Appellant further explained that he had a Thrift Savings Plan (TSP) 

account, but he would not have accessto the account until he was 72, and he was currently 66. He

indicated that he has $5,900.00 in monthly expenses and has a deficit of about $500.00 each month. 

Appellant was advised at the hearing that in order to support his claim for a hardship waiver, he 

must provide supporting financial documentation regarding his income, expenses, and assets. 

On July 27, 2022 appellant submitted a handwritten accounting of his expenses, with 

documentation supporting some expenses.

By decision dated August 31, 2022, OWCP’s hearing representative finalizedthe April 14, 

2022 preliminary overpayment determination. Regarding waiver of recovery of the overpayment, 

she found that appellant had submitted documentation of some but not all of his expenses and he 

had not explained in his testimony how he was able to pay his monthly expenses if he had a $500.00 

deficit between income and expenses each month. The hearing representative noted that on the 

OWCP-20 form appellant completed on April 25, 2022 he reported income which exceeded 

expenses by more than $50.00, therefore he did not qualify for waiver of recovery of the 

overpayment. 
4

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.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(a) of OWCP’s implementing regulations provides that a beneficiary may 

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity. 6 

The beneficiary must elect the benefit that he or she wishes to receive. 7 OWCP’s procedures also 

explain that the employee must make an election between FECA and OPM retirement benefits. 

The employee has the right to elect the monetary benefit which is the more advantageous. 8

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $33,813.89 during the period July 1, 2021 to March 26, 2022, 

for which he was without fault, as he concurrently received OPM retirement benefits and FECA 

wage-loss compensation benefits.

The clear language of section 8116(a) of FECA and section 10.421(a) of OWCP’s 

implementing regulations prohibits the receipt of FECA wage-loss benefits and a federal annuity.9 

As appellant received FECA benefits while concurrently receiving OPM retirement benefits, an 

overpayment of compensation was created.10

To determine the amount of the overpayment, OWCP verified that OPM began paying 

retirement benefits to appellant effective July 1, 2021. Itreceived a letter from OPM dated July 12, 

2022, which stated, “This letter is to advise you that we began payments to [appellant] effective 

[July 1, 2021].” OWCP’s overpayment determination explained that the overpayment occurred 

because appellant also was paid FECA workers’ compensation between July 1, 2021 and 

March 26, 2022. It provided its calculations for the above-noted time period and properly 

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(a).

7

Id.

8 Federal (FECA) Procedure Manual, Part 2 --Claims, Dual Benefits, Chapter 2.1000.4(a) (January 1997);see also 

R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued 

March 30, 1994).

9

5 U.S.C. § 8116(a); 20 C.F.R. § 10.421(a).

10 See E.F., Docket No. 18-1320 (issued March 13, 2019); E.H., Docket No. 15-0312 (issued August 19, 2016); 

Franklin L. Bryan, 56 ECAB 310 (2005).
5

calculated that from July 1, 2021 to March 26, 2022, appellant received FECA workers’

compensation in the amount of $33,813.89, which was a prohibited dual benefit.

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

appellant received prohibited dual benefits totaling $33,813.89, for the period July 1, 2021 to 

March 26, 2022.

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 

Thus, a finding that appellant was without fault does not automatically result in waiver 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.12

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 the beneficiary’s assets do not exceed a specified amount as determined by OWCP.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 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.15 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. 16 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 TSP or 401(k)), jewelry, and artwork. 17

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 

11 5 U.S.C. § 8129(a)-(b).

12 See S.R., Docket No. 20-1416 (issued September 8, 2022); D.H.,Docket No. 19-0384 (issued August 12, 2019);

V.H., Docket No. 18-1124 (issued January 16, 2019); L.S., 59 ECAB 350 (2008).

13 20 C.F.R. § 10.436(a)(b).

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) (September 2018).

16 Id. at Chapter 6.400.4b(3).

17 Id. at Chapter 6.400.4b(3)(a), (b).
6

made, gives up a valuable right or changes his or her position for the worse. 18 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.19

ANALYSIS -- ISSUE 2 

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

compensation.

As OWCP found appellant without fault in the creation of the overpayment, waiver must 

be considered. As noted above, even if a claimant is found without fault in the creation of the 

overpayment, recovery of the overpayment is still required unless adjustment or recovery of the 

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

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

defeat the purpose of FECA because he has not shown that he neededsubstantially all of his current 

income to meet ordinary and necessary living expenses and that his assets did not exceed the 

allowable resource base. Appellant submitted information regarding his income and expenses, 

including documentation regarding some of his expenses. He did not provide information 

regarding his assets. OWCP’s hearing representative denied waiver of recovery of the 

overpayment based on lack of documentation of appellant’s resource base. She explained, while 

appellant testified that he operated on a deficit of around $500.00 each month, he had not 

documented his assets and had offered no explanation as to how he paid his monthly expenses, 

given the deficit. The Board finds that based on the OWCP-20 form appellant completed on 

April 25, 2022, he had income which exceeded expenses by more than $50.00 . Therefore,

appellant did not need substantially all of his current income to meet current ordinary and 

necessary living expenses. 

The Board also finds that appellant has not established that he was entitled to waiver on 

the basis that recovery of the overpayment would be against equity and good conscience. 

Appellant has not shown, for the reasons noted above, that he would experience severe financial 

hardship in attempting to repay the debt, or that he has relinquished a valuable right or changed 

his position for the worse in reliance on the payments which created the overpayment. 21

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

19 Supra note 15 at Chapter 6.400.4c(3) (September 2020).

20 Supra note 13.

21 See B.C., Docket No. 19-0629 (issued June 2, 2020); L.D.,Docket No. 18-1317 (issued April 17, 2019);

William J. Murphy, 41 ECAB 569, 571-72 (1989).
7

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 overpayment.22

CONCLUSION

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

of compensation in the amount of $33,813.89 during the period July 1, 2021 to March 26, 2022, 

for which he was without fault, as he concurrently received OPM retirement benefits and FECA 

wage-loss compensation benefits. The Board further finds that OWCP properly denied waiver of 

recovery of the overpayment. 

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: June 14, 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

22 Id.