J.T. and U.S. Postal Service, Post Office, Aiken, SC (Board decision, September 30, 2021)

ECAB final decision. The Board affirmed OWCP’s overpayment and recovery decision. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

J.T. received FECA wage-loss compensation while also receiving Social Security retirement benefits without the required offset. The Board upheld OWCP’s $6,525.40 overpayment finding and found that she was without fault. It nonetheless upheld denial of waiver and recovery through $200 deductions every 28 days because she did not supply the requested financial information. The Board affirmed OWCP’s decision.

Decision snapshot

• Authority: 20 C.F.R. § 10.438.
• Outcome: Overpayment, denial of waiver, and $200 periodic recovery affirmed.
• Key point: A fault-free claimant still must document finances to support waiver or a lower recovery rate.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.T., Appellant
)
)
and ) Docket No. 21-0010
) Issued: September 30, 2021
U.S. POSTAL SERVICE, POST OFFICE,
)
Aiken, SC, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 2, 2020 appellant filed a timely appeal from an April 8, 2020 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 appellant received an overpayment of wage-loss compensation in the amount of $6,525.40 for the period November 1, 2018 through February 1, 2020, for which she was without fault, because she concurrently received FECA wage-loss compensation benefits

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the April 8, 2020 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. and Social Security Administration (SSA) age-related retirement benefits without appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; (3) whether OWCP properly required recovery of the overpayment by deducting $200.00 from appellant ’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On September 3, 1991 appellant, then a 34-year-old part-time flexible carrier, sustained a traumatic injury when delivering mail while in the performance of duty. 3 OWCP accepted the claim for lumbar sprain and an exacerbation of degenerative disc disease. It subsequently expanded its acceptance of the claim to include reflex sympathetic dystrophy (RSD) of the left leg. OWCP paid appellant wage-loss compensation on the periodic rolls beginning June 16, 2002.

On January 15, 2020 SSA provided OWCP with a Federal Employees Retirement System (FERS)/SSA dual benefit calculation form. 4 The form indicated that with FERS, appellant was entitled to a monthly payment of $1,055.00 effective November 2018, $1,084.00 effective December 2018, and $1,102.00 effective December 2019. Without FERS, she was entitled to a monthly payment rate of $635.00 effective November 2018, $652.00 effective December 2018, and $663.00 effective December 2019.

OWCP completed a FERS offset calculation form on February 3, 2020.5 It calculated the amount that it should have offset from appellant’s wage-loss compensation from November 1, 2018 through February 1, 2020. OWCP found that effective November 1, 2018, the monthly offset was $420.00, or $387.69 every 28 days; effective December 1, 2018, the monthly offset was $432.00, or $398.77 every 28 days; and, effective December 1, 2019, the monthly offset was $439.00 or $405.23 every 28 days. It divided the 28-day offset amount to find the daily amount, which it multiplied by the number of days in each period from November 1, 2018 through February 1, 2020 to find the amount that it had overpaid appellant for each period. OWCP added the amounts for each period and determined that it should have offset a total of $6,525.40 from her wage-loss compensation.

On February 11, 2020 OWCP notified appellant of its preliminary overpayment determination that she had received an overpayment of compensation in the amount of $6,525.40 because it had failed to reduce her wage-loss compensation benefits for the period November 1, 2018 through May 25, 2019 by the portion of her SSA age-related retirement benefits that were attributable to federal service. It further advised her of its preliminary determination that she was without fault in the creation of the overpayment. OWCP provided appellant with an overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20). Additiona lly, it notified her that, within 30 days of the date of the letter, she could request a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.

3
The traumatic injury claim (Form CA-1) is not found in the case record.
4
The employing establishment indicated on an April 19, 2002 claim for compensation (Form CA-7) that appellant was covered by FERS. 5 The form was certified on February 13, 2020.

2
 On March 1, 2020 appellant completed an overpayment action request form contesting that she had received an overpayment and requesting waiver of recovery of the overpayment. She advised that she had been told that she could receive retirement benefits from SSA and FECA benefits.

By decision dated April 8, 2020, OWCP finalized its preliminary overpayment determination, finding that appellant had received a $6,525.40 overpayment of compensation from November 1, 2018 through February 1, 2020 because she had concurrently received FECA wage- loss compensation and SSA age-related retirement benefits without the appropriate offset. It further determined that she was without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment, noting that appellant had not submitted information supporting waiver of recovery. OWCP required recovery of the overpayment by deducting $200.00 every 28 days from his continuing compensation payments.

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. 6 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. 7

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. 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

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of wage-loss compensation in the amount of $6,525.40 for the period November 1, 2018 through February 1, 2020, for which she was without fault, because she concurrently received FECA wage-loss compensation benefits and SSA age-related retirement benefits without appropriate offset.

OWCP paid appellant wage-loss compensation for total disability following her injury.
Appellant subsequently began receiving SSA age-related retirement benefits. As noted, a claimant cannot receive FECA compensation for wage-loss and SSA age-related retirement benefits

6
5 U.S.C. § 8102(a).
7
Id. at § 8116.
8
20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).
9
FECA Bulletin No. 97-09 (February 3, 1997). See also N.B., Docket No. 18-0795 (issued January 4, 2019).

3 attributable to federal service for the same period.10 Accordingly, the Board finds that fact of overpayment has been established. 11

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 for specific periods from November 1, 2018 through February 1, 2020. OWCP set forth its calculations of the amount that should have been offset during the relevant period based on information provided by SSA for the period November 1, 2018 through February 1, 2020.

The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the period November 1, 2018 through February 1, 2020 and finds that an overpayment of compensation in the amount of $6,525.40 was created. 12

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA13 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. 14

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.15 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/suppl ies,

10
Supra note 8. See A.C., Docket No. 18-1550 (issued February 21, 2019).
11
See S.H., Docket No. 20-1157 (issued December 23, 2020); K.H., Docket No. 18-0171 (issued August 2, 2018).
12
See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).
13
Supra note 1.
14
G.L., Docket No. 19-0297 (issued October 23, 2019).
15
20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of 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 6.400.4(a)(2) and (3) (September 2018).

4 vehicle(s) above the two allowed per immediate family, retirement account balances (such as TSP or 401(k)), jewelry, and artwork. 16

Section 10.437 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 made, gives up a valuable right or changes her position for the worse. 17

ANALYSIS -- ISSUE 2

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

As OWCP found appellant not at 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. 18 Appellant, however, has the responsibility to provide the appropriate financial information and documentation to OWCP.19

In its preliminary overpayment determination, dated February 11, 2020, OWCP requested that appellant provide a completed Form OWCP-20 and supporting financial information, including copies of income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other records to support income and expenses. It advised her that it would deny waiver of recovery of the overpayment if she failed to furnish the requested financial information within 30 days. Appellant did not timely submit a completed Form OWCP-20 or the financial information necessary for OWCP to determine if recovery of the overpayment would defeat the purpose of FECA or be against equity and good conscience.20

Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438 of OWCP’s regulations to determine her eligibility for waiver, the Board finds that OWCP properly denied waiver of recovery of the overpayment. 21

16
Id. at Chapter 6.400.4b(3)(a), (b).
17
20 C.F.R. § 10.437(b)(1).
18
Id. at § 10.436.
19
Id. at § 10.438. See E.S., Docket No. 20-0919 (issued February 8, 2021).
20
J.C., Docket No. 20-1062 (issued January 4, 2021); E.M., Docket No. 19-0857 (issued December 31, 2019).
21
J.C., id.

5
 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 10.411 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 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 that OWCP properly required recovery of the overpayment by deducting $200.00 from appellant’s continuing compensation payments every 28 days.

As discussed, appellant did not complete Form OWCP-20 or provide the necessary financial information to support her income and expenses. The overpaid individual is responsible for providing information about income, expenses, and assets as specified by OWCP. 24 When an individual fails to provide requested financial information, OWCP should follow minimum collection guidelines designed to collect the debt promptly and in full. 25 As appellant did not submit the financial documentation to OWCP as requested, the Board finds that OWCP properly directed recovery of the $6,525.40 overpayment of compensation at the rate of $200.00 every 28 days from her continuing compensation payments. 26

CONCLUSION

The Board finds that appellant received an overpayment of wage-loss compensation in the amount of $6,525.40 for the period November 1, 2018 through February 1, 2020 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

22
20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).
23
Id. at § 10.441(a).
24
20 C.F.R § 10.438.
25
E.M., supra note 20; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.2 (September 2018).
26
See J.A., Docket No. 19-1946 (issued July 13, 2020); E.K., Docket No. 18-0587 (issued October 1, 2018).

6 the overpayment by deducting $200.00 from appellant’s continuing compensation payments every 28 days.

ORDER

IT IS HEREBY ORDERED THAT the April 8, 2020 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: September 30, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

7