United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.E., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ALEXANDRIA VA MEDICAL CENTER, 

Alexandria, LA, Employer

__________________________________________

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Docket No. 22-0203

Issued: March 17, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

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 November 15, 2021 appellant filed a timely appeal from a September 27, 2021 merit 

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

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction to consider the merits of this case.2

ISSUES

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

overpayment of compensation in the amount of $56,768.98, for which she was without fault, for 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the September 27, 2021 decision, appellant submitted additional evidence to 

OWCP. However, the Board’s Rules of Procedures 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

the period June 1, 2016 through July 17, 2021, because she concurrently received FECA wageloss 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 

$448.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

This case has previously been before the Board on another issue.

3

 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 25, 1998 appellant, then a 47-year-old licensed practical nurse, injured her low 

back while transferring a patient from his bed to a bathing boat. OWCP accepted the claim for 

lumbosacral sprain, displacement of lumbar disc and lumbar spinal stenosis and authorized 

surgery. Appellant stopped work on June 27, 1998. It paid her wage-loss compensation on the 

supplemental rolls commencing January 5, 1999, and on the periodic rolls commencing 

June 16, 2002.

On July 15, 2021 OWCP forwarded a Federal Employees Retirement System (FERS)/SSA 

dual benefits form to SSA.

On July 23, 2021 OWCP received a completed FERS/SSA dual benefits form wherein SSA 

calculated appellant’s SSA age-related retirement benefit rates with FERS and without FERS from 

June 2016 through December 2020. Beginning June 2016, the SSA rate with FERS was $1,112.90 

and without FERS was $227.40. Beginning December 2016, the SSA rate with FERS was 

$1,115.00 and without FERS was $228.00. Beginning December 2017, the SSA rate with FERS 

was $1,138.00 and without FERS was $232.50. Beginning December 2018, the SSA rate with 

FERS was $1,170.50 and without FERS was $239.00. Beginning December 2019, the SSA rate 

with FERS was $1,188.60 and without FERS was $242.80. Beginning December 2020, the SSA 

rate with FERS was $1,204.50 and without FERS was $245.90. 

On August 4, 2021 OWCP prepared a FERS offset overpayment calculation worksheet 

wherein it noted the calculation of appellant’s offset overpayment from June 1, 2016 through 

July 17, 2021 and computed a total overpayment amount of $56,768.98. It determined that during 

the period June 1 through November 30, 2016, appellant received an overpayment in the amount 

of $5,342.16. Beginning December 1, 2016 through November 30, 2017 she received an 

overpayment in the amount of $10,673.25. Beginning December 1, 2017 through November 30, 

2018 she received an overpayment in the amount of $10,895.91. Beginning December 1, 2018 

through November 30, 2019 she received an overpayment in the amount of $11,208.76. Beginning 

December 1, 2019 through November 30, 2020 she received an overpayment in the amount of 

$11,412.01. Beginning December 1, 2020 through July 17, 2021 she received an overpayment in 

the amount of $7,236.89. 

3 Docket No. 11-1483 (issued February 3, 2012). 
3

In a preliminary overpayment determination dated August 4, 2021, OWCP advised 

appellant that she received an overpayment of compensation in the amount of $56,768.98 for the 

period June 1, 2016 through July 17, 2021 because her wage-loss compensation benefits had not 

been reduced by her SSA age-related retirement benefits attributable to her federal service. It also 

made a preliminary determination 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 financial 

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 

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.

In a completed overpayment action request form dated August 15, 2021, appellant 

disagreed with the fact and amount of the overpayment and requested waiver of recovery of the 

overpayment. 

In an undated Form OWCP-20, appellant reported that her monthly income totaled 

$3,067.00;her monthly expenses totaled $3,136.21; and her assets totaled $500.00. No supporting 

financial documentation was received.

By decision dated September 27, 2021, OWCP finalized the preliminary overpayment 

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

$56,768.98 for the period June 1, 2016 through July 17, 2021, because it failed to offset her wageloss compensation payments by the portion of her SSA age-related retirement benefits that were 

attributable to her federal service. 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 $448.00

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.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 

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.
4

attributable to the employee’s federal service.6 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 

age-related retirement benefits 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

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $56,768.98, for the period June 1, 2016 through July 17, 2021, 

for which she was without fault, because she concurrently received FECA wage-loss compensation 

and SSA age-related retirement benefits, without an appropriate offset.

As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA 

retirement benefits attributable to federal service for the same period. The evidence of record 

indicates that, while appellant was receiving FECA wage-loss compensation she was also 

receiving SSA age-related retirement benefits that were attributable to her federal service without 

appropriate offset. A claimant cannot concurrently receive FECA wage-loss compensation and 

SSA age-related retirement benefits attributable to federal service for the same period. 8 The 

information provided by SSA established that appellant had received SSA age-related retirement 

benefits that were attributable to her federal service commencing June 1, 2016. Thus, the record 

establishes that she received an overpayment of FECA wage-loss compensation.9

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 , wherein SSA provided appellant’s age-related retirement benefit rates with FERS 

and without FERS for the period June 1, 2016 through July 17, 2021. It provided its calculations 

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

overpayment in the amount of $56,768.98. 

The Board has reviewed OWCP’s calculations for the period June 1, 2016 through July 17, 

2021 and finds that appellant received an overpayment of compensation in the amount of 

$56,768.98.

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 when 

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).

8

20 C.F.R. § 10.421(d); supra note 6; L.D., Docket No. 19-0606 (issued November 21, 2019); A.C., Docket No. 

18-1550 (issued February 21, 2019); S.M., supra note 6.

9

Id.
5

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

conscience.10

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause 

hardship to a currently or formerly entitled beneficiary 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.11 An individual is deemed to meet current 

ordinary and necessary living expenses if monthly income does not exceed monthly expenses by 

more than $50.00.12

Additionally, 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 in attempting to repay the debt or when an individual, in reliance on such payment or on 

notice that such payments would be made, gives up a valuable right or changes his or her position 

for the worse.13

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. The 

information is also used to determine the repayment schedule, if necessary. 14

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 of 

recovery of the overpayment 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.15 

In its August 4, 2021 preliminary overpayment determination, OWCP requested that 

appellant provide a completed Form OWCP-20 and supporting financial documentation, including 

10 5 U.S.C. § 8129.

11 20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base 

increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional 

dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400.4a(2) (September 2020).

12 N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 (issued April26, 2019); id. at 

Chapter 6.400.4.a(3).

13 20 C.F.R. § 10.437(a)(b). 

14 Id. at § 10.438(a); M.S.,Docket No. 18-0740 (issued February 4, 2019).

15 Id. at § 10.436.
6

copies of income tax returns, bank account statements, bills and canceled checks, pay slips, and 

any other records to support income and expenses. It advised her that it would deny waiver of 

recovery if she failed to furnish the requested financial documentation within 30 days. Appellant 

provided a completed Form OWCP-20; however, she did not submit any financial documentation 

to support her reported income, assets, and expenses.

As such, appellant has not established that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience because she has not shown, that she 

would experience severe financial hardship in attempting to repay the debt, that a valuable right 

had been relinquished, or that a position had been changed for the worse in reliance on the 

payment, which created the overpayment.16 Accordingly, as she did not submit the information 

required under 20 C.F.R. § 10.438 of OWCP’s regulations to determine her eligibility for waiver, 

OWCP properly denied waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations 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 the 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.17

ANALYSIS -- ISSUE 3

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

$448.00 from appellant’s continuing compensation payments every 28 days.

As found above, appellant did not provide financial documentation to support her reported

income and expenses. The overpaid individual is responsible for providing information about 

income, expenses, and assets as specified by OWCP. 18 When an individual fails to provide 

requested financial information, OWCP should follow minimum collection guidelines designed to 

collect the debt promptly and in full.19 

The Board finds that OWCP properly considered the factors set forth in 20 C.F.R. 

§ 10.441(a) in setting the rate of recovery at $448.00 from continuing compensation benefits to 

16 L.D., Docket No. 18-1317 (issued April17, 2019); WilliamJ. Murphy, 41 ECAB 569, 571-72 (1989).

17 20 C.F.R. § 10.441(a); A.S., Docket No. 19-0171 (issued June 12, 2019); DonaldR. Schueler, 39 ECAB 1056, 

1062 (1988).

18 Id. at § 10.438(a).

19 See J.A., Docket No. 19-1946 (issued July 13, 2020); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) 

Procedure Manual, Part 6 -- Debt Liquidation, Responsibility for the Collection and Settlement of Debts, Chapter 

6.300.2 (September 2020). 20 C.F.R. § 10.436; id. at Chapter 6.400.4a(2).
7

minimize hardship, while at the same time liquidating the debt in a reasonably prompt fashion. 20 

There is no evidence of record to establish that OWCP erred in directing recovery of the 

$56,768.98 overpayment at the rate of $448.00 from appellant’s continuing compensation 

payments every 28 days.

21

CONCLUSION

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

of compensation in the amount of $56,768.98, for the period June 1, 2016 through July 17, 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 $448.00 from her continuing compensation payments

every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the September 27, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 17, 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

20 See L.F., Docket No. 15-0489 (issued May 11, 2015).

21 See J.A., supra note 19; E.K.,Docket No. 18-0587 (issued October 1, 2018); S.B.,Docket No. 16-1795 (issued 

March 2, 2017).