C.B. and U.S. Postal Service, Akron Post Office (Board decision, March 24, 2025)

ECAB final decision. The Board affirmed a $113,996.21 overpayment compromised to $16,389.60, denied waiver, and upheld recovery by $136.58 deductions every 28 days. A party may petition the Board for reconsideration within 30 days of issuance unless this order 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

A postal worker received FECA compensation and Social Security retirement benefits attributable to federal service without the required offset. The Board found her without fault but upheld the calculated overpayment, its compromise amount, and the recovery terms. It also upheld denial of waiver.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Compromised overpayment, waiver denial, and deductions affirmed.
• Key point: The required offset supported the overpayment despite the worker being without fault.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.B., Appellant
)
)
and ) Docket No. 25-0275
)
Issued: March 24, 2025
U.S. POSTAL SERVICE, AKRON POST
)
OFFICE, Akron, OH, Employer
)
__________ )

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 JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 8, 2025 appellant filed a timely appeal from an August 7, 2024 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 $113,996.21 (compromised to $16,389.60) for the period December 1, 2017 through March 22, 2024, for which she was without fault, because she

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the August 7, 2024 decision, appellant submitted additional evidence to OWCP and to the Board. 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. concurrently received FECA wage-loss 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 $136.58 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On November 25, 1991, appellant, then a 43-year-old box section clerk, filed a traumatic injury claim (Form CA-1) alleging that on November 25, 1991 she injured her left shoulder and back when pulling and lifting tubs into a cart while in the performance of duty. OWCP accepted the claim for myositis of the cervical spine and left shoulder, tendinitis, bursitis, and impingement tendinitis of the left shoulder. Appellant stopped work that date. OWCP paid her wage-loss compensation.

The record reveals that appellant’s retirement coverage is under the Federal Employees’ Retirement System (FERS).

On February 27, 2024, OWCP provided SSA with a FERS/SSA dual benefits form. It requested appellant’s SSA age-related retirement benefits rates with and without FERS.

On March 7, 2024, SSA completed the FERS/SSA dual benefits form, reporting appellant’s SSA age-related retirement benefit rates with a FERS offset and without a FERS offset. Beginning December 2017, the SSA rate with FERS was $2,612.20 and without FERS $916.80. Beginning December 2018, the SSA rate with FERS was $2,685.40 and without FERS $942.40. Beginning December 2019, the SSA rate with FERS was $2,728.30 and without FERS $957.50. Beginning December 2020, the SSA rate with FERS was $2,763.60 and without FERS $969.90. Beginning December 2021, the SSA rate with FERS was $2,926.70 and without FERS $1,027.00. Beginning December 2022, the SSA rate with FERS was $3,181.20 and without FERS $1,116.30. Beginning January 2023, the SSA rate with FERS was $3,185.20 and without FERS $1,116.30. Beginning December 2023, the SSA rate with FERS was $3,287.10 and without FERS $1,151.90.

In a FERS offset overpayment calculation worksheet dated April 5, 2024, OWCP applied the information provided by SSA to calculate the 28-day FERS offset for the relevant periods. It found that, for the period December 1, 2017 through March 22, 2024, appellant received an overpayment of compensation in the amount of $113,996.21.

On March 26, 2024, OWCP expanded the acceptance of the claim to include left shoulder myositis, bursitis, strain of the muscle, fascia, and tendon at the shoulder and upper arm on the left, disorder of the bursae and tendons in the left shoulder and myalgia on the left.

On April 12, 2024, OWCP advised appellant that it was adjusting her wage-loss compensation to offset the portion of her SSA age-related retirement benefits attributable to her federal service. It informed her that her gross SSA/FERS offset for 28 days was $1,970.93.

In a May 10, 2024 preliminary overpayment determination, OWCP advised appellant that she had received an overpayment of compensation in the amount of $113,996.21, for the period December 1, 2017 through March 22, 2024, because she concurrently received SSA age-related

2 retirement benefits and FECA wage-loss compensation, without an appropriate offset. It further determined that she was without fault in the creation of the overpayment. OWCP requested that appellant complete an enclosed overpayment recovery questionnaire (Form OWCP-20), and submit supporting financial documentation, including income tax returns, bank account statements, bills, cancelled checks, pay slips, and any other records to support her reported income and expenses. Additionally, it provided an overpayment action request form and notified her 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. No response was received.

In a letter dated June 10, 2024, OWCP informed appellant that some of her compensation payments were processed incorrectly as it calculated the SSA/FERS offset according to the date range on the claim for compensation (Form CA-7), rather than on the number of days in which partial wage loss was claimed. It further related that she had a workdays’ calculation of Monday through Friday with Saturdays and Sundays off. OWCP clarified that when a Form CA-7 was received for a 14-day period, partial wage loss was claimed across 12 days, then the offset would be calculated as the SSA/FERS offset daily rate multiplied by 12 days resulting in an SSA/FERS offset rate of $844.69 for every 12-day period. It indicated that for the 12-day period March 25 through April 5, 2024 appellant received gross compensation in the amount of $809.94, which was reduced by her SSA/FERS offset of $844.69 for that period to net compensation of -$34.75 or 0. For the 12-day period April 8 through 19, 2024, appellant received gross compensation in the amount of $696.15 which was reduced by her SSA/FERS offset for that period of $844.69 to net compensation of negative $148.54 or 0. For the 12-day period April 22 through May 3, 2024, she received gross compensation in the amount of $1,258.43 which should have been reduced by her SSA/FERS offset for that period of $844.69 to net compensation of $413.72 rather than $272.96. For the 12-day period May 6 through 17, 2024, appellant received gross compensation in the amount of $1,231.65 which was reduced by her SSA/FERS offset for that period of $844.69 to net compensation of $386.96 rather than the $527.75 she received, resulting in an overpayment. For the 12-day period May 20 through 31, 2024, appellant received gross compensation in the amount of $843.41 which was reduced by her SSA/FERS offset for that period of $844.69 to net compensation of -$1.28 or 0.

The record further indicates that f or the 12-day period June 3 through 14, 2024 appellant received gross compensation in the amount of $1,124.55 which was reduced by her SSA/FERS offset for that period of $844.69 to reach net compensation in the amount of $279.85. For the 12- day period from July 1 through 12, 2004, she received gross compensation in the amount of $1,097.77 which was reduced by her SSA/FERS offset for that period of $844.69 to reach net compensation in the amount of $253.07, and for the 12-day period from July 15 through 26, 2024, she received gross compensation in the amount of $1,117.86 which was reduced by her SSA/FERS offset for that period of $844.69 to reach net compensation in the amount of $273.17.

By decision dated August 7, 2024, OWCP finalized the preliminary overpayment determination that appellant received an overpayment of compensation in the amount of $113,996.21, for the period December 1, 2017 through March 22, 2024, because she concurrently received SSA age-related retirement benefits and FECA wage-loss compensation, without an appropriate offset. It found that appellant was without fault in the creation of the overpayment but, denied waiver of recovery. OWCP required recovery of the overpayment by deducting $68.29

3 biweekly or $136.58 every 28 days from her continuing compensation payments of $273.17 biweekly, as this was 25 percent of $273.17.3

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 attributable to the employee’s federal service. 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

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant received an overpayment of compensation in the amount of $113,996.21 (compromised to $16,389.60) for the period December 1, 2017 through March 22, 2024, for which she was without fault, because she concurrently received SSA age-related retirement benefits and FECA wage-loss compensation, without an appropriate offset.

OWCP paid appellant FECA wage-loss compensation. The case record establishes that appellant received SSA age-related retirement benefits under FERS beginning December 1, 2017. As noted, a claimant cannot receive concurrent FECA wage-loss compensation benefits and SSA age-related retirement benefits attributable to federal service for the same period , without an appropriate offset.8 The information provided by SSA established that a portion of appellant’s retirement benefits were attributable to her federal service. Thus, the record establishes that she received an overpayment of FECA wage-loss compensation.

3
OWCP further determined that the overpayment should be waived in part by $97,606.61, leaving a balance of
$16,389.60 based upon appellant’s age.
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 August 20, 2018).
7
FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
8
P.B., Docket No. 23-0955 (issued March 13, 2024); see E.M., Docket No. 21-1231 (issued April 19, 2023); E.K., Docket No. 18-0587 (issued October 1, 2018).

4
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. SSA provided appellant’s SSA age-related retirement benefit rates with FERS, and without FERS, for specific periods commencing December 1, 2017. In its May 10, 2024 preliminary overpayment determination, OWCP calculated the amounts of overpayment by determining the difference between the SSA rate with and without FERS for each period and multiplying the daily offset amount by the number of days in each period, to find a total overpayment of $ 113,996.21.

The Board has reviewed OWCP’s calculation of benefits received by appellant for the period December 1, 2017 through March 22, 2024, and finds that an overpayment of compensation in the amount of $113,996.21 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.9 The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests within OWCP’s discretion pursuant to statutory guidelines. 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 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

9
5 U.S.C. § 8129(a)-(b).
10
A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).
11
Supra note 6 at § 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, Pa rt 6 -- Debt Management, Final Overpayment Determinations, Chapter 6.400.4a(2) (September 2020). 12 Id. at § 10.437(a)(b).
13
Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

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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 recovery of the overpayment would defeat the purpose of FECA, or be against equity and good conscience. 14 In order to establish that recovery of the overpayment would defeat the purpose of FECA, appellant must show that she requires substantially all of her income to meet current ordinary and necessary living expenses, and that her assets do not exceed the established limit as determined by OWCP procedures. 15 Appellant, however, had the responsibility to provide supporting financial information and documentation to OWCP. 16

In its preliminary overpayment determination dated May 10, 2024, OWCP requested a completed overpayment recovery questionnaire and supporting financial documentation regarding monthly income, monthly expenses and assets, including copies of income tax returns, bank account statements, bills, pay slips, and any other records to support his reported income, expenses, and assets. It advised appellant that it would deny waiver of recovery if she failed to furnish the requested financial information within 30 days. However, no response was received. The evidence of record is, therefore, insufficient to establish that recovery of the overpayment would defeat the purpose of FECA or be against equity and good conscience. 17

Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the Board finds that OWCP properly denied waiver of recovery of the overpayment. 18

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. 19 Section 10.441 of Title 20 of the Code of Federal Regulations provides that if an overpayment of compensation has been made to one entitled to future payments, proper adjustment shall be made by decreasing subsequent payments of compensation, “taking into account the probable extent of future

14
5 U.S.C. § 8129.
15
Supra note 6 at § 10.436.
16
See L.W., Docket No. 19-0787 (issued October 23, 2019); L.L., Docket No. 18-1103 (issued March 5, 2019).
17
See K.H., Docket No. 18-0171 (issued August 2, 2018).
18
See T.E., Docket No. 19-0348 (issued December 11, 2019).
19
R.W., Docket No. 19-0451 (issued August 7, 2019); C.A., Docket No. 18-1284 (issued April 15, 2019); Albert Pinero, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51 ECAB 295 (2000).

6 payments, the rate of compensation, the financial circumstances of the individual, and any other relevant factors, so as to minimize any hardship.”20

When an individual fails to provide requested information regarding income, expenses, and assets, OWCP should follow minimum collection guidelines. The Federal (FECA) Procedure Manual provides that, in these instances, it should set the rate of recovery at 25 percent of the 28- day net compensation amount until the balance of the overpayment is paid in full. 21

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly required recovery of the overpayment by deducting $136.58 from appellant’s continuing compensation payments every 28 days.

In requiring recovery, OWCP explained how it considered the factors set forth at 20 C.F.R.
§ 10.441(a) in setting the amount of repayment from continuing compensation benefits to minimize hardship, while liquidating the debt, as appellant had financial resources sufficient for more than ordinary needs. 22 Thus, it did not abuse its discretion in setting the rate of recovery. 23 The Board therefore finds that OWCP properly required recovery of the overpayment from appellant’s continuing compensation payments at the rate of $136.58 every 28 days.

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment of compensation in the amount of $113,996.21 (compromised to $16,389.60) for the period December 1, 2017 through March 22, 2024, 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. The Board also finds that OWCP properly required recovery of the overpayment by deducting $136.58 from appellant’s continuing compensation payments every 28 days.

20
20 C.F.R. § 10.441; see A.F., Docket No. 19-0054 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056, 1062 (1988).
21
Supra note 11 at Chapter 6.500.8c(1) (September 2018).
22
See A.N., Docket No. 23-0983 (issued January 10, 2024); P.S., Docket No. 21-0859 (issued May 12, 2023);
D.S., Docket No. 18-1447 (issued July 22, 2019).
23
See A.N., id.; P.S., id.; T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

7
ORDER

IT IS HEREBY ORDERED THAT the August 7, 2024 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 24, 2025
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8