United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Melville, NY, Employer

__________________________________________

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Docket No. 22-0088

Issued: May 5, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 26, 2021 appellant filed a timely appeal from a May 12, 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 over 

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 $57,952.58 for the period January 1, 2010 through

March 23, 2021, for which he was without fault, because he concurrently received FECA wage1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the May 12, 2021 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.
2

loss compensation benefits 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 $576.27 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On November 9, 2005 appellant, then a 61-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he injured his neck, back, shoulder, and the right side 

of his leg when pulling postal container full of mail while in the performance of duty. OWCP 

accepted the claim for cervical sprain, lumbar sprain, hip sprain, and right knee sprain. It paid 

appellant wage-loss compensation for disability on the supplemental rolls effective December 25, 

2005 and on the periodic rolls effective February 19, 2006.

On January 14, 2021 OWCP sent a Federal Employees Retirement System (FERS)/SSA 

dual benefits calculation form to SSA for completion. 

In a response dated February 18, 2021, SSA provided appellant’s SSA age-related 

retirement benefits rates with FERS and without FERS from January 2010 through 

December 2020. SSA indicated that beginning January 2010, appellant’s SSA rate with FERS 

was $1,328.90 and without FERS was $929.50; effective December 2010, his SSA rate with FERS 

was $1,328.90 and without FERS was $929.50; effective December 2011, his SSA rate with FERS 

was $1,376.70 and without FERS was $962.90; effective December 2012, his SSA rate with FERS 

was $1,400.10 and without FERS was $979.20; effective December 2013, his SSA rate with FERS 

was $1,421.10 and without FERS was $993.80; effective December 2014 and December 2015, his

SSA rate with FERS was $1,445.20 and without FERS was $1,010.60; effective December 2016, 

his SSA rate with FERS was $1,449.50 and without FERS was $1,013.60; effective 

December 2017, his SSA rate with FERS was $1,478.40 and without FERS was $1,033.80;

effective December 2018, his SSA rate with FERS was $1,519.70 and without FERS was 

$1,062.70; effective December 2019, his SSA rate with FERS was $1,544.00 and without FERS 

was $1,079.70; and effective December 2020, his SSA rate with FERS was $1,564.00 and without 

FERS was $1,093.70. SSA indicated that appellant received retirement payments beginning 

January 2010.

OWCP completed a FERS offset calculation form on March 18, 2021. It calculated the 

amount that it should have offset from appellant’s wage-loss compensation for each period from 

January 1, 2010 through February 27, 2021. OWCP found that, from January 1, 2010 through 

November 30, 2010, appellant received an overpayment of $4,397.79; from December 1, 2010 

through November 30, 2011, he received an overpayment of $4,805.97; from December 1, 2011 

through November 30, 2012, he received an overpayment of $4,992.88; from December 1, 2012 

through November 30, 2013, he received an overpayment of $5,064.68; from December 1, 2013 

through November 30, 2014, he received an overpayment of $5,141.69; from December 1, 2014 

through November 30, 2015, he received an overpayment of $5,229.53; from December 1, 2015 

through November 30, 2016, he received an overpayment of $5,243.85; from December 1, 2016 

through November 30, 2017, he received an overpayment of $5,245.17; from December 2017 

through November 30, 2018, he received an overpayment of $5,349.86; from December 2018 

through November 30, 2019 he received an overpayment of $5,499.07; from December 1, 2019 
3

through November 30, 2020 he received an overpayment of $5,602.21; and for the period 

December 1, 2020 through February 27, 2021, he received an overpayment of $1,379.89. Based 

on these figures, OWCP calculated the total overpayment amount of $57,952.58.

On March 19, 2021 OWCP informed appellant that it would begin deducting the portion 

of SSA age-related retirement benefits attributable to his federal service from his compensation 

benefits. It found that with the SSA offset he was entitled to net compensation every 28 days of 

$2,406.80 effective February 28, 2021. 

In a preliminary overpayment determination dated March 25, 2021, OWCP notified 

appellant of its preliminary finding that he had received an overpayment of compensation in the 

amount of $57,952.58 because his wage-loss compensation benefits had not been reduced for the 

period January 1, 2010 through March 23, 2021 by the portion of his SSA age-related retirement 

benefits attributable to his federal service. It further advised him of its preliminary determination

that he 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 him that he could request waiver of reco very of the 

overpayment. It further requested that he submit supporting financial documentation, including 

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

any other records supporting income and expenses. Additionally, OWCP 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.

In an overpayment action request form dated April 20, 2021, appellant requested a decision 

based on the written evidence. He disagreed that an overpayment had occurred, the amount of 

overpayment, and further requested waiver of recovery as he was without fault in the creation of 

the overpayment. Appellant maintained that not all his SSA benefits were attributable to his 

federal service. In an OWCP-20 form of even date, he listed monthly income of $8,257.00 and 

monthly expenses of $5,476.91. Appellant indicated that he had assets in cash, checking accounts, 

and stocks and bonds of $36,114.90. He provided supporting documentation. In an accompanying 

statement, appellant maintained that his wife was legally blind, and he also had eye problems and 

noted that the overpayment amount was in excess of their savings. He advised that soon his roof 

would need to be replaced and he would need a new automobile. Appellant contended that 

repaying the debt would be against equity and good conscience. He noted that he had not included 

his or his wife’s annuity from deferred compensation/Thrift Savings Plans (TSP) that required 

minimum distributions as they were tax-qualified funds.

By decision dated May 12, 2021, OWCP finalized its preliminary overpayment 

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

of $57,952.58 for the period January 1, 2010 through March 23, 2021because it had failed to offset 

his compensation payments by the portion of his SSA age-related retirement benefits that were 

attributable to his federal service. Itdenied waiver of recovery of the overpayment as the evidence 

showed that he had sufficient income to repay the overpayment. OWCP noted that appellant’s 

monthly income exceeded his monthly expenses by more than $2,500.00. It required recovery of 

the overpayment by deducting $576.27 from his continuing compensation payments every 28 days.
4

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA3 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 

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 

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. 7

ANALYSIS -- ISSUE 1

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

of wage-loss compensation in the amount of $57,952.58, for which he was without fault, because 

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

benefits without an appropriate offset. The Board finds, however, that the period of the 

overpayment was from January 1, 2010 through February 27, 2021, rather than the stated period 

in OWCP’s decision of January 1, 2010 through March 23, 2021. OWCP began offsetting the 

portion of appellant’s SSA age-related retirement benefits attributable to his federal service 

effective February 28, 2021. In reaching its calculation of the amount of overpayment, it correctly 

used the proper period of the overpayment of compensation, January 1, 2010 through 

February 27, 2021.

OWCP paid appellant wage-loss compensation for total disability beginning 

December 25, 2005. Appellant received SSA age-related retirement benefits beginning 

January 1, 2010. As noted, a claimant cannot receive concurrent FECA compensation for wageloss and SSA age-related retirement benefits attributable to federal service.8

 The information 

provided by SSA indicated that a portion of appellant’s SSA age-related retirement benefits were

3

Supra note 1.

4

5 U.S.C. § 8102.

5

Id. at § 8116.

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

Id. See F.K., Docket No. 20-1609 (issued June24, 2021); A.C., Docket No. 18-1550 (issued February 21, 2019).
5

attributable to his federal service. Accordingly, the Board finds that fact of overpayment has been 

established.9 

To determine the amount of the overpayment, the portion of SSA age-related retirement 

benefits 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. SSA provided the SSA rates with FERS and without FERS from 

January 2010 through December 2020. OWCP provided its calculations for each relevant period 

based on SSA’s worksheet and determined that appellant received an overpayment of 

compensation in the amount of $57,952.58 for the period January 1, 2010 through 

February 27, 2021. The Board has reviewed OWCP’s calculation of dual benefits received by 

appellant for the period January 1, 2010 through February 27, 2021 and finds that an overpayment 

of compensation in the amount of $57,952.58 was created.10

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA11 provides that an overpayment must be recovered unless incorrect 

payment has been made to an individual who is without fault and when adjustment or recovery 

would defeat the purpose of FECA or would be against equity and good conscience. Thus, a 

finding that appellant was without fault does not automatically result in waiver of the overpayment.

OWCP must 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

According to 20 C.F.R. § 10.436, 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 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’s liquid assets 

include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual 

funds, and certificates of deposits. 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, 

9

See L.K., Docket No. 20-1574 (issued June23, 2021); S.H., Docket No. 20-1157 (issued December 23, 2020).

10 See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March5, 2019).

11 Supra note 1.

12 G.L., Docket No. 19-0297 (issued October 23, 2019).

13 20 C.F.R. § 10.436. OWCP procedures provide that a claimant is deemed to need substantially all his or her 

current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00. Its procedures further provide that 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. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, 

Chapter 6.400.4a(2) and (3) (September 2020).
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vehicle(s) above the two allowed per immediate family, retirement account balances (such as TSP 

or 401(k)), jewelry, and artwork.14

Section 10.437 provides that recovery of an overpayment is 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/her position for 

the worse.15

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 repayment is still required unless adjustment or recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience. 16

Appellant advised on an OWCP-20 form that he had monthly income of $8,257.00 and 

monthly expenses of $5,476.92. He further advised that he had assets in cash, checking accounts, 

and stocks and bonds of $36,114.90, and an undisclosed amount as annuities in differed 

compensation/TSP. Appellant’s stated assets exceed the resource base of $10,300.00 for an 

individual with a spouse or one dependent, plus $1,200.00 for each additional dependent, as 

provided in OWCP’s procedures.17 Because he has not met the second prong of the two-prong 

test, of whether recovery of the overpayment would defeat the purpose of FECA, it is not necessary 

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.18 Appellant has not established that he was 

entitled to waiver on the basis of defeating the purpose of FECA.19

Additionally, the evidence does not demonstrate that recovery of the overpayment would 

be against equity and good conscience. Appellant has not submitted evidence to substantiate that 

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

on such payment he gave up a valuable right or changed his position for the worse. Therefore, 

OWCP properly found that recovery of the overpayment would not defeat the purpose of FECA 

or be against equity and good conscience.20

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

15 20 C.F.R. § 10.437(b)(1).

16 Id. at § 10.436.

17 Supra note 13.

18 See S.W., Docket No. 20-0363 (issued November 23, 2020); M.H., Docket No. 19-1497 (issued 

September 9, 2020).

19 N.B., Docket No. 20-0727 (issued January 26, 2021); R.D.,Docket No. 19-1598 (issued April17, 2020).

20 N.J., Docket No. 19-1170 (issued January 10, 2020); V.T., Docket No. 18-0628 (issued October 25, 2018).
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.21

LEGAL PRECEDENT -- ISSUE 3

The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those 

cases where OWCP seeks recovery from continuing compensation under FECA. 22 Section 10.441 

of OWCP’s regulations provides that, 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 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.23

ANALYSIS -- ISSUE 3

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

$576.27 from appellant’s continuing compensation payments every 28 days.

The record supports that, in requiring recovery of the overpayment by deducting $576.27 

from appellant’s continuing compensation payments every 28 days, OWCP took into consideration 

the factors set forth in section 10.441 and found that this method of recovery would minimize any 

resulting hardship on appellant. OWCP followed minimum collection guidelines by requiring 

installments large enough to collect the full debt promptly. Therefore, the Board finds that OWCP 

properly required recovery of the overpayment by deducting $576.27 from appellant’s continuing 

compensation payments every 28 days.

CONCLUSION

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

of compensation in the amount of $57,952.58 for which he was without fault, because he 

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

benefits without an appropriate offset; however, the period of the overpayment is modified to

reflect January 1, 2010 through February 27, 2021. The Board further finds that OWCP properly 

denied waiver of recovery of the overpayment and properly required recovery of the overpayment 

by deducting $576.27 from appellant’s continuing compensation payments every 28 days.

21 See T.C., Docket No. 21-0612 (issued December 2, 2021).

22 R.W., Docket No. 19-0451 (issued August7, 2019); C.A., Docket No. 18-1284 (issued April15, 2019); Albert 

Pinero, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51 ECAB 295 (2000).

23 20 C.F.R. § 10.441(a); M.A., Docket No. 21-0403 (issued December 17, 2021).
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ORDER

IT IS HEREBY ORDERED THAT the May 12, 2021 decision of the Office of Workers’

Compensation Programs is affirmed, as modified.

Issued: May 5, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board