United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.D., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

AGRICULTURAL RESEARCH SERVICE, 

Albany, CA, Employer 

__________________________________________ 

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Docket No. 13-1974 

Issued: May 15, 2014 

Appearances: Case Submitted on the Record 

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On August 23, 20131 appellant filed a timely appeal from a February 26, 2013 decision of 

the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of 

compensation. 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

 For final adverse OWCP decisions issued on and after November 19, 2008, a claimant has 180 days to file an 

appeal with the Board. See 20 C.F.R. § 501.3(e). Under the Board’s Rules of Procedure, an appeal must be filed 

within 180 days from the date of the last OWCP decision. An appeal is considered filed upon receipt by the Clerk of 

the Appellate Boards. One hundred and eighty days from February 26, 2013, the date of OWCP’s decision, was 

August 26, 2013. Since using August 28, 2013, the date the appeal was received by the Clerk of the Board, would 

result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. 

Postal Service postmark is August 23, 2013, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2 

ISSUES 

The issues are: (1) whether OWCP properly found a $51,005.68 overpayment of 

compensation for the period February 1, 2002 to February 11, 2012 as he received wage-loss 

compensation and Social Security Act (SSA) benefits without an appropriate offset; (2) whether 

OWCP properly denied waiver of the overpayment; and (3) whether OWCP properly directed 

recovery of the overpayment by deducting $230.80 every 28 days from appellant’s continuing 

compensation payments. 

On appeal, appellant contends that he accurately reported his SSA benefits from 2002 

onward. He contends that OWCP alone is responsible for any overpaid compensation from the 

time it discovered the dual benefit in 2010, as it delayed taking action until 2012. Appellant 

asserts that he is unable to repay the overpaid compensation due to financial hardship, noting that 

he is still making payments on a prior overpayment. He also asserts that SSA overstated the 

amount of his earnings, but acknowledged that he could not recall all periods of employment. 

FACTUAL HISTORY 

OWCP accepted that on or before January 3, 1997 appellant, then a 59-year-old 

construction representative, sustained depressive disorder due to supervisory harassment. 

Appellant had intermittent work absences from February to October 1997, then applied for 

disability retirement on November 12, 1997 and did not return to work. He received 

compensation on the daily rolls effective December 1, 1997. OWCP adjusted appellant’s 

benefits retroactively to May 10, 1997 to reflect his marriage. On January 4, 1999 appellant 

elected FECA benefits as of May 10, 1997. OWCP adjusted his compensation from the 2/3 rate 

to the 75 percent rate retroactive to May 10, 1997 as he was married but had been erroneously 

paid at the 66 2/3 percent rate for an unmarried individual. It placed appellant on the periodic 

compensation rolls effective January 31, 1999. Appellant received compensation through 

electronic funds transfer effective March 28, 1999.3

On annual affidavits of earnings and employment (Form CA-1032) submitted from 

March 31, 2000 to February 27, 2012,4

 appellant stated that he was in receipt of SSA retirement 

annuity benefits and had a CSA number. 

In an April 22, 2010 memoranda, SSA advised OWCP that appellant received monthly 

benefits beginning in February 2002 at the following monthly rates: $1,003.50 from February to 

December 2002; $1,017.50 from December 2002 to December 2003; $1,038.80 from 

December 2003 to December 2004; $1,066.80 from December 2004 to December 2005; 

$1,110.50 from December 2005 to December 2006; $1,147.10 from December 2006 to 

 3

 On April 15, 2003 OWCP and OPM determined that appellant received simultaneous FECA compensation and 

OPM Civil Service Retirement System (CSRS) retirement annuity benefits from January 31, 1999 to April 1, 2003, 

creating an overpayment to OPM of $73,348.57. OPM recovered the overpayment by deducting $500.00 from his 

continuing monthly compensation benefits effective June 10, 2006. 

4

 Appellant signed the forms on the following dates: March 31, 2000; April 24, 2001; May 15, 2002; February 5, 

2003; July 14, 2004; February 19, 2006; March 13, 2007; February 16, 2008; February 25, 2009; February 25, 2010; 

February 27, 2011; February 27, 2012. 
3 

December 2007; $1,173.40 from December 2007 to December 2008; $1,241.40 from 

December 2008 to December 2009. On February 29, 2012 OWCP applied the December 2011 

3.6 percent cost-of-living allowance (COLA) to appellant’s monthly SSA payments to determine 

an offset amount of $427.11 every 28 days from December 2009 to November 30, 2011, and a 

$442.49 offset from December 1, 2011 to February 11, 2012. It noted that increasing the offset 

by 3.6 percent was “much easier than going back to SSA.” OWCP found that appellant had been 

overpaid $51,005.68 in compensation for the period February 1, 2002 to February 11, 2012. 

Effective February 12, 2012, OWCP adjusted his wage-loss compensation under FECA to reflect 

the appropriate offset of his SSA benefits. 

By notice dated February 29, 2012, OWCP advised appellant of its preliminary finding 

that a $51,005.68 overpayment of compensation was created as he was paid dual compensation 

under FECA and SSA for the period February 1, 2001 to February 11, 2012 without an 

appropriate offset. It found that he was without fault in creating the overpayment. 

On March 20, 2012 appellant completed an Overpayment Recovery Questionnaire (Form 

OWCP-20) listing $5,721.00 in monthly income, $5,888.00 in monthly expenses and assets of 

$484.24 in a checking account. He did not provide complete information regarding his wife’s 

income, assets and expenses. Appellant contested the fact and amount of the overpayment and 

requested waiver. He requested a decision based on a review of the record. 

In an April 12, 2012 letter, appellant noted intermittent lapses in federal employment 

prior to January 1, 1984 when OPM changed from the CSRS to Federal Employees’ Retirement 

System (FERS). He returned to federal employment from July 1985 until he stopped work in 

1997. 

In an April 16, 2012 letter, OWCP explained that, if appellant “rejoined career [f]ederal 

service on or after January 1, 1984,” the employing establishment likely placed him in CSRSoffset status rather than FERS, which required him to continue to pay into social security. 

OWCP noted that the record established that he “paid into [s]ocial [s]ecurity as a [f]ederal 

employee on or after January 1, 1984.” 

By decision February 26, 2013, OWCP finalized the fact and amount of the preliminary 

overpayment finding. It found that appellant was without fault in creating the overpayment, but 

that waiver could not be granted as he did not submit required financial information. OWCP 

found that, according to a report from a vocational rehabilitation counselor early in the claim, 

appellant was federally employed by the U.S. Air Force from 1965 to 1970, by another agency 

from 1978 to 1982, then worked in the private sector until he began new federal employment in 

1985. Therefore, he had a break in service of more than one year after December 31, 1983. 

“While [appellant] previously was a CSRS employee, by law all newly hired and rehired career 

federal employees had mandatory SSA coverage.”5

 Also, he reached full retirement age under 

social security in February 2002. OWCP denied waiver as appellant failed to provide the 

requested financial information regarding his wife’s income, assets and expenses. It further 

 5

 CSRS Interim/Offset was a precursor to FERS that required contributions to both CSRS and OASDI. It 

generally applied to certain new hires or former CSRS-covered employees who had been separated from service for 

at least one year and rehired after December 31, 1983. 
4 

found that recovery would not be against equity and good conscience as there was no indication 

that he changed his position for the worse in reliance on the overpaid compensation. OWCP 

directed recovery of the overpayment by deducting $230.80 from his continuing compensation 

payments every 28 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 duty.6

 Section 8129(a) of FECA provides, in pertinent part, that when “an 

overpayment has been made to an individual under this subchapter 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 an individual is entitled.”7

Section 8116(d) of FECA requires that compensation benefits be reduced by the portion 

of SSA benefits based on age or death that are attributable to federal service and that, if an 

employee received SSA benefits based on federal service, his or her compensation benefits shall 

be reduced by the amount of SSA benefits attributable to his or her federal service.8

 

OWCP procedures provide that, while SSA benefits are payable concurrently with FECA 

benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by 

the SSA benefits paid on the basis of age and attributable to the employee’s federal service.9 The 

offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as 

follows: Where a claimant had received SSA benefit, OWCP will obtain information from SSA 

on the amount of the claimant’s SSA benefits beginning with the date of eligibility to FECA 

benefits. SSA will provide the actual amount of SSA benefits received by the 

claimant/beneficiary. SSA will also provide a hypothetical SSA benefit computed without the 

FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit 

to determine the amount of benefits which are attributable to federal service and that amount will 

be deducted from FECA benefits to obtain the amount of compensation payable.10

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained depressive disorder due to work factors on or 

before January 3, 1997. Appellant received total disability compensation on the periodic rolls 

beginning on January 31, 1999. He received SSA retirement annuity benefits beginning on 

February 1, 2002, when he reached retirement age. Appellant disclosed these payments on 

 6

 5 U.S.C. § 8102(a). 

7 Id. at § 8129(a). 

8 Id. at § 8116(d); Janet K. George (Angelos George), 54 ECAB 201 (2002). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997); 

Chapter 2.1000.11(a)(b) (February 1995). 

10 FECA Bulletin No. 97-09 (issued February 3, 1997). 
5 

annual affidavits of earnings and employment (Form CA-1032) from March 31, 2000 to 

February 27, 2012. However, OWCP did not begin to offset appellant’s FECA benefits by the 

amount of his SSA benefits attributable to his federal employment under FERS until 

February 12, 2012.11 As appellant is not entitled to receive both FECA benefits and that portion 

of his SSA benefits attributable to his federal employment, OWCP properly determined that an 

overpayment was created for the period February 1, 2002 to February 11, 2012.12

The Board finds, however, that the case is not in posture regarding the amount of 

overpayment. The SSA memorandum listing the amount appellant received only covers the 

period February 1, 2002 through December 2009. In a February 29, 2012 memorandum, OWCP 

noted that it did not obtain payment information from SSA for the period December 2009 to 

February 11, 2012. Therefore, the actual amount of the overpayment is not of record. OWCP 

has not established that the correct amount of the overpayment is $51,005.68. The case will be 

remanded to OWCP to obtain complete payment information from SSA regarding the payments 

appellant received from February 1, 2002 to February 11, 2012, the entire period of the 

overpayment. OWCP shall then recalculate the amount of the overpayment, based on the SSA 

payment information. Following this development and any other action deemed necessary, 

OWCP shall issue an appropriate decision in the case. 

ISSUES 2 and 3 

As the case is not in posture for a decision degrading the amount of the overpayment, it is 

premature to address the issues of waiver and recovery. The second and third issues are 

therefore moot. 

CONCLUSION 

The Board finds that, although OWCP has established that appellant received an 

overpayment of compensation from February 1, 2002 to February 11, 2012, the case is not in 

posture for a decision as to the amount of the overpayment. 

 11 5 U.S.C. § 8116(d). 

12 Janet K. George (Angelos George), supra note 8. See G.B., Docket No. 11-1568 (issued February 15, 2012). 
6 

ORDER 

IT IS HEREBY ORDERED THAT the February 26, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded for further development 

consistent with this decision. 

Issued: May 15, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board