United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.V., widow of J.V., Appellant

and

DEPARTMENT OF ENERGY, 

SOUTHEASTERN COURIER SECTION, 

Oak Ridge, TN, Employer

__________________________________________

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Docket No. 23-0430

Issued: October 3, 2023

Appearances: Case Submitted on the Record

Marshall W. Stair, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 7, 2023 appellant, through counsel, filed a timely appeal from an October 4, 

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.

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 the employee received an overpayment of compensation in the 

amount of $107,831.76 for the period November 1, 2005 through August 17, 2019, 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; and 

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

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

are as follows.

On November 30, 1990 the employee, then a 50-year-old nuclear materials courier, filed a 

traumatic injury claim (Form CA-1) alleging that on November 26, 1990, he felt a sharp pain in 

his left knee and leg when jogging during an employing establishment-sanctioned physical fitness 

program while in the performance of duty. OWCP initially accepted the claim for herniated discs 

at L3-4 and L4-5, and paid the employee wage-loss compensation on the periodic rolls as of 

June 16, 2002. It subsequently expanded the acceptance of the employee’s claim to include 

spondylosis with myelopathy, thoracic region; spinal stenosis, lumbar region; spinal stenosis, 

thoracic region; displacement of lumbar intervertebral disc without myelopathy. OWCPcontinued 

to pay the employee wage-loss compensation on the periodic rolls.

In a claim for compensation (Form CA-7) dated March 2, 1999, the employee noted his 

retirement system as Federal Employees Retirement System (FERS) and Social Security 

Administration (SSA).

On July 11, 2019 OWCP provided SSA with a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form. On July 13, 2019 SSA completed the dual benefits 

form, wherein SSA calculated the employee’s SSA age-related retirement benefit rates with and 

without a FERS offsetfrom November 2005 through December 2018. Beginning November 2005, 

the SSA rate with FERS was $1,590.50 and without FERS was $1,048.10; beginning 

December 2005, the SSA rate with FERS was $1,655.70 and without FERS was $1,091.00; 

beginning December 2006, the SSA rate with FERS was $1,710.30 and without FERS was 

$1,127.00; beginning December 2007, the SSA rate with FERS was $1,749.60 and without FERS 

was $1,152.90; beginning December 2008, the SSA rate with FERS was $1,851.00 and without 

FERS was $1,219.70; beginning December 2009, the SSA rate with FERS was $1,851.00 and 

without FERS was $1,219.70; beginning December 2010, the SSA rate with FERS was $1,851.00 

and without FERS was $1,219.70; beginning December 2011, the SSA rate with FERS was 

$1,917.60 and without FERS was $1,263.60; beginning December 2012, the SSA rate with FERS 

was $1,950.10 and without FERS was $1,285.00; beginning December 2013, the SSA rate with 

FERS was $1,979.30 and without FERS was $1,304.20; beginning December 2014, the SSA rate 

with FERS was $2,012.90 and without FERS was $1,326.30; beginning December 2015, the SSA 

3 Docket No. 20-0952 (issued February 2, 2022).
3

rate with FERS was $2,012.90 and without FERS was $1,326.30; beginning December 2016, the 

SSA rate with FERS was $2,018.90 and without FERS was $1,330.20; beginning December 2017, 

the SSA rate with FERS was $2,059.20 and without FERS was $1,356.80; and beginning 

December 2018, the SSA rate with FERS was $2,116.80 and without FERS was $1,394.70.

In an August 26, 2019 letter, OWCP informed the employee that, effective August 18, 

2019, it would begin deducting the portion of SSA age-related retirement benefits attributable to 

his federal service from his 28-day periodic compensation benefits. It noted that his current 

monthly SSA age-related retirement benefit with FERS was $2,116.80 and without FERS was 

$1,394.70. OWCP explained that the amount of FERS/SSA dual benefit to be deducted from the

employee’s FECA benefits was $722.10 per month, or $666.55 every 28 days. It further explained 

that his new net compensation payment would be $1,979.21, every 28 days.

On August 26, 2019 OWCP issued a preliminary overpayment determination, notifying the 

employee that he had received an overpayment of compensation in the amount of $107,831.76 for 

the period November 1, 2005 through August 17, 2019 because he concurrently received FECA 

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

It calculated the overpayment amount by determining the difference between his SSA amount with 

and without FERS for the stated period and totaling this amount to find an overpayment of 

$107,831.76. OWCP further advised the employee of its preliminary determination that he was 

without fault in the creation of the overpayment. It requested that he submit a completed 

overpayment recovery questionnaire (Form OWCP-20), along with supporting financial 

documentation, including copies of income tax returns, bank account statements, bills, pay slips, 

and any other records to support his reported income, assets, and expenses. OWCP advised the 

employee that it would deny waiver if he failed to furnish the requested financial information 

within 30 days. It provided an appeal request form and further notified him that, within 30 days 

of the date of the letter, he could contest the overpayment and request a final decision based on the 

written evidence or a prerecoupment hearing.

In an accompanying overpayment memorandum, OWCP noted that appellant was overpaid 

compensation for the period November 1, 2005 to August 17, 2019 in the amount of $10,831.76.

A FERS offset overpayment calculation worksheet completed by OWCP determined the 28-day 

FERS offset amount for the days in each period, and computed a total overpayment amount of

$107,831.76. The offset calculation worksheet indicated that from November 1 through 30, 2005, 

the employee received an overpayment in the amount of $536.44; from December 1, 2005 through 

November 30, 2006, he received an overpayment in the amount of $6,795.02; from December 1, 

2006 through November 30, 2007, he received an overpayment in the amount of $7,018.83; from 

December 1, 2007 through November 30, 2008, he received an overpayment in the amount of 

$7,199.74; from December 1, 2008 through November 30, 2009, he received an overpayment in 

the amount of $7,596.41; from December 1, 2009 through November 30, 2010, he received an 

overpayment in the amount of $7,596.41; from December 1, 2010 through November 30, 2011, he 

received an overpayment in the amount of $7,596.41; from December 1, 2011 through 

November 30, 2012, he received an overpayment in the amount of $7,891.12; from December 1, 

2012 through November 30, 2013, he received an overpayment in the amount of $8,003.13; from 

December 1, 2013 through November 30, 2014, he received an overpayment in the amount of 

$8,123.46; from December 1, 2014 through November 30, 2015, he received an overpayment in 

the amount of $8,261.84; from December 1, 2015 through November 30, 2016, he received an 
4

overpayment in the amount of $8,284.47; from December 1, 2016 through November 30, 2017, he 

received an overpayment in the amount of $8,267.10; from December 1, 2017 through 

November 30, 2018, he received an overpayment in the amount of $8,451.96; and from 

December 1, 2018 through August 17, 2019, he received an overpayment in the amount of 

$6,189.43.

On September 24, 2019 OWCP received a check from the employee in the amount of 

$10,831.76.

By decision dated September 30, 2019, OWCP finalized the preliminary overpayment 

determination, finding that the employee had received an overpayment of compensation in the 

amount of $107,831.76 for the period November 1, 2005 through August 17, 2019 because he 

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

benefits with an appropriate offset. It found that he was without fault in the creation of the 

overpayment but denied waiver of recovery of the overpayment because no financial information 

had been submitted. OWCP required recovery of the overpayment by deducting $500.00 from the 

employee’s continuing compensation payment every 28 days beginning October 13, 2019.

On March 23, 2020 the employee, through counsel, appealed to the Board.4

In an April 14, 2021 memorandum of telephone call (Form CA-110), the employee’s wife 

advised OWCP that the employee passed away on April 6, 2021. By decision dated February 2, 

2022, the Board affirmed in part and set aside in part the September 30, 2019 overpayment 

decision, and remanded the case to OWCP to clarify the amount of the overpayment of 

compensation as it had made separate determinations that the overpayment was in the amount of 

$10,831.76 and $107,831.76. The Board also noted that OWCP did not acknowledge receipt of 

the employee’s check for $10,831.76, which fully repaid the overpayment stated in the August 26, 

2019 preliminary overpayment determination. Thus, the Board found that the amount of the 

overpayment was unclear. The Board instructed OWCP to determine the correct amount of the 

overpayment and 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 remand, OWCP issued a preliminary overpayment determination on March 17, 2022 

and addressed to the employee’s estate, finding that the employee had received an overpayment of 

compensation in the amount of $107,831.76 for the period November 1, 2005 through August 17, 

2019 because he had concurrently received SSA age-related retirement benefits and FECA wageloss compensation benefits, without an appropriate offset. It subtracted the employee’s payment 

of $10,831.76, and noted that the remaining balance of the overpayment was $91,000.00. OWCP 

determined that the employee was without fault in the creation of the overpayment. It informed 

appellant that, if she agreed with the overpayment amount, she could make a payment online or 

send a check or money order for the full amount to OWCP. OWCP requested that she submit a 

completed Form OWCP-20, along with supporting financial documentation, including copies of 

4 During the pendency of the appeal, the employee passed away. The Board recognized E.V., the employee’s 

widow, as the substitute appellant to allow the appeal to go forward. See D.V., Docket No. 20-1294 (issued 

September 14, 2021); N.D., Docket No. 14-1757 (issued June 2, 2015); AlbertF. Kimbrell, 4 ECAB 662, 666 (1952).
5

income tax returns, bank account statements, bills, pay slips, and any other records to support her 

reported income, assets, and expenses. It advised her that it would deny waiver if she failed to 

furnish the requested financial information within 30 days. OWCP provided an appeal request 

form and further notified appellant that, within 30 days of the date of the letter, she could contest 

the overpayment and request a final decision based on the written evidence or a prerecoupment 

hearing. No response was received.

On April 5, 2022 counsel for appellant requested a prerecoupment hearing before a 

representative of OWCP’s Branch of Hearings and Review. He argued that the employee sent in 

a check in the amount of $10,831.76, as stated in the August 26, 2019 preliminary overpayment 

determination, and that the check was cashed prior to the employee’s death on April 6, 2021. 

Counsel argued that any further claim against the employee was extinguished, as all claims and 

demands not filed with the probate court within 12 months from the date of the employee’s death 

on April 6, 2021, were forever barred. He noted that the recalculated overpayment was 10 times 

the original amount and formulated after being notified that the employee was deceased, and that

the employee’s widow could not be held accountable. The hearing was held on July 20, 2022.

By decision dated October 4, 2022, OWCP’s hearing representative finalized the 

March 17, 2022 preliminary overpayment determination, finding that the employee had received 

an overpayment of compensation in the amount of $107,831.76 for the period November 1, 2005 

through August 17, 2019, because he concurrently received SSA age-related retirement benefits 

and FECA wage-loss compensation benefits without a proper offset. The hearing representative

noted that a partial repayment of $10,831.76 and $6,000.00 had been received, with a remaining 

balance of $91,000.00. The hearing representative also determined that the employee was without 

fault in the creation of the overpayment, but denied waiver of recovery of the overpayments, 

finding that the employee had not provided a completed OWCP-20 form and supporting financial 

documentation. The hearing representative required recovery of the overpayment in full within 30 

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.5 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.6 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.7

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

Id. at § 8129(a).
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.8 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.9 OWCP’s procedures for recovery from a deceased 

debtor’s estate provide that, if the claimant recently passed away, it should take prompt action 

because creditors who have not properly asserted a claim before the estate is closed are generally 

precluded from any recovery.10

Thus, it should refer the debt to the financial management system (FMS) for offset of the 

deceased claimant’s last federal tax refund under the Treasury’s Offset Program (TOP).11 OWCP 

has a special profile with FMS under TOP for the collection of these specific estate debts. The 

claims examiner should follow the referral procedures set forth in Chapter 6.500.12. 12 Including 

sending the complete referral package to the national office for final review and forwarding to the 

FMS.13

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision.

The Board notes that the record indicates that the employee passed away on April 6, 2021, 

and that on March 17, 2022, OWCP issued a notice of preliminary overpayment addressed to the 

employee’s estate, finding that the employee had received an overpayment of compensation in the 

amount of $107,831.76 for the period November 1, 2005 through August 17, 2019, because he 

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

benefits, without an appropriate offset.

OWCP’s procedures provide for the recovery of an overpayment from a deceased debtor’s 

estate.14 The procedures specifically require that, if the claimant recently passed away, OWCP 

should refer the debt to the FMS for offset of the deceased claimant’s last federal tax refund under 

8

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).

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

10 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.15 

(September 2020).

11 31 C.F.R. § 285.2; id. at Chapter 6.500.15g(1)-(7) (September 2018). See D.J., (L.J.), Docket No. 22-0012 

(issued August 18, 2022);see also R.B., (J.B.),Docket No. 19-0700 (issued March 16, 2021); W.J. (E.J.), Docket No. 

18-1035 (issued July 9, 2019).

12 Id. at Chapter 6.500.12 (September 2020).

13 Id. at Chapter 6.500.15e.

14 Supra note 16.
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the TOP.

15

 OWCP has a special profile with FMS under TOP for the collection of these specific 

estate debts. The claims examiner should follow the referral procedures set forth in Chapter 

6.500.12,16 including sending the complete referral package to the national office for final review 

and forwarding to the FMS.17 The evidence of record does not substantiate that actions OWCP 

has taken to recover the overpayment debt include a referral to FMS for appropriate offset under 

the TOP, prior to taking overpayment actions against the employee’s estate. The case shall 

therefore be remanded to OWCP to follow the procedures as outlined in Chapter 6.500.15 of its 

procedure manual.18 Following this and other such further development as deemed necessary, 

OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision.

IT IS HEREBY ORDERED THAT the October 4, 2022 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

proceedings consistent with this decision of the Board.

Issued: October 3, 2023

Washington, DC

Alec J. Koromilas, 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

15 Id.

16 Id.

17 Id.

18 D.J., Docket No. 22-0012 (issued August 18, 2022).