United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.H., Appellant 

and 

GENERAL SERVICES ADMINISTRATION, 

PACIFIC RIM REGION, San Francisco, CA, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0563 

Issued: October 13, 2015 

Appearances: Case Submitted on the Record

Virginia B. Henke, for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 21, 2015 appellant, through his representative, filed a timely appeal from a 

December 31, 2014 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. 

ISSUES 

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $11,875.55 for the period September 1, 2009 to 

September 20, 2014 because he received wage-loss compensation and Social Security Act (SSA) 

benefits without an appropriate offset; (2) whether he was at fault in the creation of the 

overpayment and therefore not entitled to waiver of recovery; and (3) whether OWCP properly 

directed recovery of the overpayment by deducting $580.00 every 28 days from appellant’s 

continuing compensation payments. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

OWCP accepted that on April 20, 1995 appellant, then a 47-year-old custodial foreman, 

sustained a hematomas of the right arm, right shoulder sprain, a concussion, and right arm and 

leg lacerations when he was struck by a cab while in the performance of duty. Appellant stopped 

work and was placed on the periodic rolls. 

On July 3, 1996 OWCP granted appellant a schedule award for 11 percent permanent 

impairment of the right arm and 12 percent permanent impairment of the right leg. The award 

ran for 68.88 weeks from March 7, 1996 to July 2, 1997. 

In a letter dated August 10, 2009, OWCP advised appellant that FECA required that a 

claimant’s continuing compensation benefits be reduced if he or she began to receive SSA 

retirement benefits based upon his or her age and federal service. It noted that, because he was 

approaching the minimum age for retirement and to receive SSA retirement benefits, he was 

notified of this requirement. OWCP informed appellant that failure to report receipt of such 

retirement benefits to OWCP could result in an overpayment of compensation. 

In Forms CA-1032 completed and signed on September 5, 2009 and August 30, 2011 

appellant responded “No” to the question whether he received SSA benefits as part of an annuity 

under Federal Employees Retirement System (FERS) for federal service. In CA-1032 forms 

completed and signed on August 20, 2010, July 24, 2012, July 19, 2013, and July 25, 2014, 

appellant responded “Yes” to the question whether he received SSA benefits as part of an 

annuity under FERS for federal service. 

On August 15, 2014 OWCP requested that SSA provide information regarding dual 

benefits appellant received and included a form entitled FERS SSA Dual Benefits Calculations. 

The form asked SSA to provide separate benefit calculations of SSA with FERS and SSA 

without FERS. On September 5, 2014 an SSA representative responded to OWCP’s request. It 

noted that, effective September 1, 2009, appellant’s SSA rate with FERS was $1,269.20 a month 

and without FERS was $1,093.00. Effective December 1, 2011, his SSA rate with FERS was 

$1,314.80 a month and without FERS was $1,132.30. Effective August 1, 2013, appellant’s SSA 

rate with FERS was $1,775.40 a month and $1,527.00 without FERS. Effective December 1, 

2013 his SSA rate was $1,802.00 with FERS a month and $1,549.90 without FERS. 

By letter dated September 19, 2014, OWCP advised appellant that because he had been 

receiving both FERS and SSA benefits and he was not entitled to receive both, his FECA 

benefits would be adjusted to reflect the FERS portion of his SSA benefits. It noted that $232.71 

would be offset from his compensation every month. 

On September 21, 2014 OWCP reduced appellant’s compensation to reflect the FERS 

offset. 

By notice dated November 20, 2014, OWCP advised appellant of its preliminary 

determination that an overpayment of $11,875.55 of compensation was created for the period 

September 1, 2009 to September 20, 2014 as he was paid dual compensation under FECA and 

SSA without an appropriate offset. It found that he was with fault in the creation of the 
3

overpayment because he knew or reasonably should have known that he was accepting 

compensation to which he was not entitled. OWCP requested that appellant complete the 

enclosed overpayment recovery questionnaire and submit supporting financial documents. It 

notified him that he had 30 days to request a telephone conference, a final decision based on the 

written evidence, or a prerecoupment hearing. OWCP mailed the preliminary determination to 

appellant’s address of record. 

An OWCP worksheet indicated that from September 1 to November 30, 2009 appellant’s 

SSA rate with FERS offset was $162.65 every 28 days. OWCP divided this amount by 28 to 

convert the 28-day difference to a daily difference and multiplied it by 91 days for this period for 

a total dual benefit amount of $528.60 during this period. From December 1, 2009 through 

November 30, 2011, appellant’s SSA rate with FERS offset was $162.65 every 28 days. OWCP 

divided this amount by 28 to convert the 28-day difference to a daily difference and multiplied it 

by 730 days for this period for a total dual benefit amount of $4,240.42. From December 1, 2011 

to July 31, 2013 appellant’s SSA rate with FERS offset was $168.46 every 28 days. OWCP 

divided this amount by 28 to convert the 28-day difference to a daily difference and multiplied it 

by 609 days for this period for a total dual benefit amount of $3,664.04 during this period. From 

August 1 to November 30, 2013 appellant’s SSA rate with FERS offset was $229.29 every 28 

days. OWCP divided this amount by 28 to convert the 28-day difference to a daily difference 

and multiplied it by 122 days for this period for a total dual benefit of $999.06. From 

December 1, 2013 to September 20, 2014 appellant’s SSA rate with FERS offset was $232.71 

every 28 days. OWCP divided this amount by 28 to convert the 28-day difference to a daily 

difference and multiplied it by 294 days for this period for a total dual benefit amount of 

$2,443.43 during this period. It concluded that appellant received a total overpayment of 

$11,875.55 from September 1, 2009 to September 20, 2014.2

 

In a decision dated December 31, 2014, OWCP finalized the fact and amount of the 

preliminary overpayment determination and noted that appellant did not provide any information 

to refute the amount of the overpayment. It denied waiver of recovery of the overpayment 

because he was at fault in its creation. OWCP directed recovery of the overpayment by 

deducting $580.00 from appellant’s 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 duty.3

 

Section 8116(d)(2) 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 

 2

 The Board notes that OWCP improperly noted the date of January 30, 2009 instead of November 30, 2009. 

OWCP also indicated that the number of days for the period December 1, 2013 to September 20, 2014 was 210 

instead of 294. As the FERS SSA Dual Benefits Calculations contained the proper dates and OWCP’s calculations 

followed the proper dates and amounts, the Board finds that these incorrect notations constitute harmless error. 

3

 5 U.S.C. § 8102(a). 
4

an employee receives SSA benefits based on federal service, his or her compensation benefits 

shall be reduced by the amount of SSA benefits to his or her federal service.4

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 

SSA benefits paid on the basis of age and attributable to the employee’s federal service.5

 The 

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

follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA 

on the amount of the claimant’s 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.6

ANALYSIS -- ISSUE 1 

The record reveals that appellant received FECA wage-loss compensation and SSA 

benefits from September 1, 2009 to September 20, 2014. As previously stated, the portion of 

SSA benefits he earned as a federal employee as part of his FERS retirement package and the 

receipt of benefits under FECA and FERS benefits concurrently is a prohibited dual benefit.7 

OWCP requested and SSA provided information regarding appellant’s applicable SSA rates and 

their effective dates. Based on these rates, it determined that the prohibited dual benefits he 

received from September 1, 2009 to September 20, 2014, created an overpayment of 

compensation in the amount of $11,875.55.

The Board has reviewed OWCP calculations of the dual benefits appellant received for 

the period September 1, 2009 to September 20, 2014 and finds that it properly determined that he 

received benefits totaling $11,875.55 for this period, thus creating an overpayment in that 

amount. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(a) of FECA provides that, when an overpayment of compensation has been 

made because of an error of fact or law, adjustment shall be made by decreasing later payments 

to which an individual is entitled. The only exception to this requirement is when an incorrect 

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

 4 Id. at § 8116(d). See G.B., Docket No. 11-1568 (issued February 15, 2012); see also Janet K. George, 54 ECAB 

201 (2002). 

5

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

Chapter 2.1000.1.11(a)(b) (February 1995); see also R.C., Docket No. 09-2131 (issued April 2, 2010). 

6

 FECA Bulletin No. 97-9 (February 3, 1997); see P.G., Docket No. 13-589 (issued July 9, 2013). 

7

 Id. 
5

would defeat the purpose of FECA or be against equity and good conscience.8

 No waiver of 

payment is possible if appellant is with fault in helping to create the overpayment.9

In determining whether an individual is not without fault or alternatively, with fault, 

section 10.433(a) of OWCP regulations provide in relevant part: 

“An individual is with fault in the creation of an overpayment who -- 

Made an incorrect statement as to a material fact which he or she knew or 

should have known to be incorrect; or 

Failed to provide information which he or she knew or should have known 

to be material; or 

Accepted a payment which he or she knew or should have known to be 

incorrect....”10

ANALYSIS -- ISSUE 2 

OWCP determined that appellant was at fault in the creation of the overpayment because 

he accepted payment which he knew or should have known to be incorrect. The record contains 

an August 10, 2009 letter where OWCP informed appellant that FECA required that a claimant’s 

continuing compensation benefits be reduced if he or she began to receive SSA retirement 

benefits based upon his or her age and federal service. Appellant was advised that failure to 

report receipt of such retirement benefits to OWCP could result in an overpayment of 

compensation. Accordingly, the Board finds that appellant knew or should have known at the 

time that he began to receive SSA retirement benefits he should have received an offset in his 

FECA benefits.11 

On appeal, appellant’s representative contends that appellant faithfully submitted the 

Forms CA-1032 every year. She noted that the forms only asked for information regarding 

FERS and not SSA benefits. The representative alleges that the form was unclear as to what 

information to provide and that there was no intent to defraud or deceive OWCP. The Board 

notes, however, that the CA-1032 form clearly asks under Part D, Question 2 for information 

regarding SSA benefits which were received as part of an annuity under FERS. Accordingly, the 

Board finds that OWCP properly found that appellant was at fault in the creation of the 

overpayment, thereby precluding waiver of recovery of the overpayment. 

 8

 5 U.S.C. § 8129(b). 

9 Robert W. O’Brien, 36 ECAB 541, 547 (1985). 

10 20 C.F.R. § 10.433(a). 

11 The Board notes that appellant correctly answered “yes” that he received SSA benefits in CA-1032 form signed 

on August 20, 2010. OWCP did not begin to make adjustments to his FECA benefits until September 21, 2014. 

OWCP’s error, however, does not excuse appellant’s acceptance of checks which he knew or should have known to 

be incorrect. See Larry D. Strickland, 48 ECAB 669 (1997). 
6

Appellant’s representative also alleges that she never received the November 20, 2014 

preliminary determination of overpayment and therefore did not know that she was supposed to 

submit financial documentation. The Board notes, however, that in the absence of evidence to 

the contrary, a letter properly addressed and mailed in the course of due business is presumed to 

have arrived at the mailing address in due course if not returned. This is known as the mailbox 

rule.12 As the November 20, 2014 preliminary determination was sent to the addresses of record 

of appellant as well as separately to his representative it is presumed to have been received by 

them both absent any notice of nondelivery. There is no evidence on the record to rebut this 

presumption. 

LEGAL PRECEDENT -- ISSUE 3 

Section 10.321(a)13 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, having due regard to 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 resulting hardship upon such individual. When an individual fails to provide 

requested information on income, expenses, and assets OWCP should follow minimum 

collection guidelines, which state in general that government claims should be collected in full 

and that, if an installment plan is accepted, the installments should be large enough to collect the 

debt promptly.14

ANALYSIS -- ISSUE 3 

The Board finds that OWCP did not abuse its discretion in following the guidelines in 

this case. OWCP determined that the overpayment should be recovered from appellant’s 

continuing compensation payments at the rate of $580.00. The Board notes that appellant failed 

to provide any information on his income, expenses, and assets as requested by the hearing 

representative. OWCP followed collection guidelines by requiring installments large enough to 

collect the debt promptly. The Board will affirm OWCP’s determination regarding rate of 

recovery. 

On appeal, appellant’s representative alleges that the deduction would be a hardship and 

burden for appellant. She did not, however, submit any financial documents or evidence to 

support her contention that appellant would face hardship due to the withholding of this amount 

every month. As stated, above when an individual fails to provide requested information on 

income, expenses, and assets OWCP should follow minimum collection guidelines which would 

allow for prompt collection of the debt.15 Because appellant failed to provide the requested 

financial information, the Board finds that OWCP properly determined that the overpayment 

 12 Kenneth E. Harris, 54 ECAB 502 (2003); James A. Gray, 54 ECAB 277 (2002). 

13 20 C.F.R. § 10.321(a). 

14 See Gail M. Roe, 47 ECAB 268 (1995). 

15 Id. 
7

should be recovered from appellant’s continuing compensation payments at the rate of $580.00 

per month. 

CONCLUSION 

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

of $11,875.55 from September 1, 2009 to September 20, 2014 because his benefits were not 

properly reduced by FERS offset amount. The Board further finds that he was at fault in the 

creation of the overpayment and that OWCP properly set the rate of recovery of the overpayment 

at $580.00 from continuing compensation benefits. 

ORDER 

IT IS HEREBY ORDERED THAT the December 31, 2014 merit decision of the Office 

of Workers’ Compensation Programs is affirmed. 

Issued: October 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board