United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.O., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

LOUIS STOKES CLEVELAND VA MEDICAL 

CENTER, Cleveland, OH, Employer

__________________________________________

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Docket No. 23-0718

Issued: December 13, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro., 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 April 25, 2023 appellant, through counsel, filed a timely appeal from an April 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 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, following the April19, 2023 decision, appellant submitted additional evidence to OWCP. 

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 $8,614.61 for the period July 1, 2020 through 

July 16, 2022, for which he was without fault, because he concurrently received Social Security 

Administration (SSA) age-related retirement benefits and FECA wage-loss compensation 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 

$269.07 from appellant’s continuing compensation benefits every 28 days.

FACTUAL HISTORY

On December 2, 2004 appellant, then a 46-year-old electronics mechanic, filed traumatic 

injury claim (Form CA-1) alleging that on November 23, 2004 he sustained a head injury and was 

knocked unconscious when he was testing a fire alarm in a crawl space while in the performance 

of duty. He stopped work on the date of injury. By decision dated January 12, 2005, OWCP 

accepted the claim for cervical, thoracic, and lumbar sprains, and bilateral shoulder sprains. By 

decision dated March 25, 2005, it expanded the acceptance of appellant’s claim to include the 

additional conditions of forehead contusion and post-traumatic headaches. Appellant stopped 

work and OWCP paid him wage-loss compensation on the supplemental rolls, effective January 9, 

2005, and on the periodic rolls, effective June 12, 2005.

OWCP forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits 

calculation form to SSA on July 28, 2022 to obtain information regarding appellant’s potential 

receipt of dual benefits.

On August 3, 2022 OWCP received a completed FERS/SSA dual benefits form from SSA, 

wherein SSA reported appellant’s SSA age-related retirement benefit rates with a FERS offset and 

without a FERS offset from July 2020 through July 2022. Beginning July 2020, the SSA rate with 

FERS was $1,055.00 and without FERS was $714.50. Beginning December 2020, the SSA rate 

with FERS was $1,068.70 and without FERS was $723.70. Beginning December 2021, the SSA 

rate with FERS was $1,131.70 and without FERS was $766.40. 

In an August 4, 2022 FERS offset calculation worksheet, OWCP found that an 

overpayment of compensation benefits had been created in the amount of $8,614.61 for the period 

July 1, 2020 through July 16, 2022. It determined that: for the period July 1 through 

November 30, 2020, appellant received an overpayment of $1,717.47; for the period December 1, 

2020 through November 30, 2021, appellant received an overpayment of $4,151.37; and for the 

period December 1, 2021 through July 16, 2022, appellant received an overpayment of $2,745.77.

In a preliminary overpayment determination dated October 3, 2022, OWCP notified 

appellant that he had received an overpayment of compensation in the amount of $8,614.61 for the 

period July 1, 2020 through July 16, 2022 because appellant concurrently received FECA wageloss compensation benefits and SSA age-related retirement benefits without an appropriate offset. 

It determined 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 recovery of the 

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

copies of income tax returns, bank account statements, bills and canceled checks, pay slips, and 
3

any to support her reported income, assets, and expenses. OWCP provided an overpayment action 

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

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

On October 14, 2022 appellant requested a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review. He disagreed with the fact and amount of the 

overpayment, and requested a possible waiver of recovery because he was found to be without 

fault in the creation of the overpayment. No supporting financial information or documentation 

was received.

A prerecoupment hearing was held on March 14, 2023. Counsel for appellant was present 

at the hearing. No financial documentation was provided.

By decision dated April 19, 2023, OWCP’s hearing representative finalized the October 3, 

2022 preliminary overpayment determination finding that appellant had received an overpayment 

of compensation in the amount of $8,614.61 for the period July 1, 2020 through July 16, 2022, 

because appellant concurrently received FECA wage-loss compensation benefits and SSA agerelated retirement benefits, without an appropriate offset. She determined that appellant was 

without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment 

of compensation because he failed to provide any of the financial information requested. OWCP’s 

hearing representative concluded that there was no evidence to substantiate that recovery of the 

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

She required recovery of the overpayment by deducting $269.07 from appellant’s continuing 

compensation benefit payments every 28 days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) 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 his 

or her federal employment.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 the implementing regulations requires that OWCP reduce the amount 

of compensation by the amount of any SSA age-related retirement benefits that are attributable to 

federal service of the employee.6 FECA Bulletin No. 97-09 provides 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

4

5 U.S.C. § 8102(a). 

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d).

7 FECA Bulletin No. 97-09 (issued February 3, 1997).
4

ANALYSIS

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

of compensation in the amount of $8,614.61 because he concurrently received SSA age -related 

retirement benefits and FECA wage-loss compensation benefits for the period July 1, 2020 through 

July 16, 2022, without an appropriate offset.

In its April 19, 2023 decision, OWCP found that an overpayment of compensation was 

created for the period July 1, 2020 through July 16, 2022. The overpayment was based on the 

evidence received from SSA with respect to retirement benefits paid to appellant. The record 

indicates that, while appellant was receiving compensation for total disability under FECA, he was 

also receiving SSA age-related retirement benefits. A claimant cannot receive both compensation 

for wage-loss and SSA age-related retirement benefits attributable to federal service for the same 

period.8 Consequently, the fact of overpayment has been established. 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 from SSA with respect to rates of SSA age-related retirement benefits that were 

attributable to federal service. SSA provided its rate with FERS, and without FERS for periods 

commencing July 1, 2020 through July 16, 2022. OWCP provided its overpayment calculations 

for each relevant period based on the SSA worksheet. 

The Board has reviewed OWCP’s calculation of benefits received by appellant for the 

period July 1, 2020 through July 16, 2022 and finds that an overpayment of compensation in the 

amount of $8,614.61 was created.

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. 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, inc luding 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 Additionally, recovery of an 

overpayment is considered to be against equity and good conscience when an individual who 

8

See E.M., Docket No. 21-1231 (issued April 19, 2023); E.K., Docket No. 18-0587 (issued October 1, 2018).

9 L.M., Docket No. 19-1197 (issued January 8, 2020). 

10 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).

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).
5

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.12

OWCP’s regulations provide 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.13 Failure to submit the requested information 

within 30 days of the request shall result in a denial of waiver of recovery, and no further request 

for waiver shall be considered until the requested information is furnished. 14

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the overpayment. 15

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, 

however, had the responsibility to provide the appropriate financial information to OWCP. 17

In its preliminary overpayment determination dated October 3, 2022, OWCP explained the 

importance of providing the completed overpayment questionnaire and supporting financial 

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

and any other records to support income and expenses. It advised appellant that it would deny 

waiver if he failed to furnish the requested information within 30 days. Appellant, however, did 

not respond. As such, OWCP did not have the necessary financial information to determine if 

recovery of the overpayment would defeat the purpose of FECA or if recovery would be against 

equity and good conscience.18

As appellant did not submit the information required under 20 C.F.R. § 10.438, which was 

necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied 

waiver of recovery of the overpayment.19

12 Id. at § 10.437(a)-(b).

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

14 Id. at § 10.438(b).

15 A.C., Docket No. 18-1550 (issued February 21, 2019).

16 20 C.F.R. § 10.436.

17 Id. at § 10.438; see N.J., Docket No. 19-1170 (issued January 10, 2020).

18 R.M., Docket No. 19-1570 (issued June 1, 2020); G.G., Docket No. 19-0684 (issued December 23, 2019).

19 P.M., Docket No. 22-1059 (issued April 28, 2023); S.P., Docket No. 19-1318 (issued July 31, 2020).
6

LEGAL PRECEDENT -- ISSUE 3

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 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.20

ANALYSIS -- ISSUE 3

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

$269.07 from appellant’s continuing compensation payments every 28 days.

21

OWCP provided appellant a Form OWCP-20 with the October 3, 2022 preliminary 

overpayment determination. Appellant did not complete the form or provide the necessary 

financial information to support his income and expenses prior to the final April 19, 2023 

overpayment decision. The overpaid individual is responsible for providing information about 

income, expenses, and assets as specified by OWCP. 22 When an individual fails to provide 

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

collect the debt promptly and in full.23 The Federal (FECA) Procedure Manual provides that in 

these instances, OWCP should set the rate of repayment at 25 percent of the 28 -day net 

compensation amount until the balance of the overpayment is paid in full. 24 While appellant did 

not submit the financial information requested, the record reflects that his continuing 28 -day 

compensation as of April 19, 2023 was $1,090.08. Therefore, deducting $269.07 every 28 days 

from his continuing compensation is not in excess of the 25 percent repayment rate. 25 

As appellant did not submit the financial documentation to OWCP as requested, the Board 

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

$8,614.61 overpayment at the rate of $269.07 from appellant’s continuing compensation payments

every 28 days.

CONCLUSION

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

$8,614.61 for the period July 1, 2020 through July 16, 2022 for which he was without fault, as he 

concurrently received SSA age-related retirement benefits while receiving FECA wage-loss

compensationbenefits, without an appropriate offset. The Board further finds that OWCP properly 

20 20 C.F.R. § 10.441(a).

21 L.K., Docket No. 19-1423 (issued March 2, 2020).

22 20 C.F.R. § 10.438. See also A.F., Docket No. 19-0054 (issued June 12, 2019).

23 See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).

24 Federal (FECA)Procedure Manual, supra note 11 at Debt Liquidation, Chapter 6.500.8c(1) (September 2018).

25 E.M., Docket No. 19-0857 (issued December 31, 2019).
7

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

by deducting $269.07 from his continuing compensation payments every 28 days. 

ORDER

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

Compensation Programs is affirmed. 

Issued: December 13, 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