United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Bernardino, CA, Employer 

__________________________________________ 

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Docket No. 14-134 

Issued: May 1, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 22, 2013 appellant filed a timely appeal from a September 17, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) which found that he 

received an overpayment of compensation. 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 

the case. 

ISSUES 

The issues are: (1) whether appellant received an overpayment in compensation in the 

amount of $2,944.55 because he concurrently received Office of Personnel Management (OPM) 

retirement benefits while receiving FECA benefits for the period April 1 through May 1, 2013; 

and (2) whether OWCP properly found appellant at fault in the creation of the overpayment, 

thereby precluding waiver. 

 1

 5 U.S.C. §§ 8101-8193. 
2

On appeal, appellant asserts that, because he told the claims examiner on March 8, 2013 

that he had elected OPM retirement benefits and would no longer need workers’ compensation, 

the overpayment decision was improper. 

FACTUAL HISTORY 

On May 15, 2010 appellant, then a 51-year-old distribution clerk, filed an occupational 

disease claim alleging that repetitive motion from tying and lifting heavy sacks at work caused 

plantar fasciitis and carpal tunnel syndrome. He did not stop work.2 On June 21, 2010 OWCP 

accepted bilateral radial styloid tenosynovitis and bilateral plantar fibromatosis. On June 5, 2011 

appellant filed a schedule award claim. On August 16, 2011 he notified OWCP that he was 

filing for disability retirement. On August 29, 2011 appellant filed a recurrence claim, beginning 

August 29, 2011. OWCP accepted the recurrence and he was placed on the compensation rolls 

effective April 8, 2012. 

On April 4, 2012 OPM approved appellant’s application for disability retirement. It 

informed him that he could not receive annuity payments from both OPM and OWCP for the 

same period of time and should elect which benefit to receive. OPM also indicated that appellant 

was eligible to receive an OPM annuity and schedule award compensation from OWCP. 

On May 1, 2012 appellant was granted schedule awards for two percent impairment of 

each upper and lower extremity. The awards for a total of 24 weeks, to run from April 21 to 

October 5, 2012. The decision stated that, after the ending date of the award, appellant’s 

entitlement to compensation would be based solely on disability for work due to the accepted 

injury. OWCP informed him that compensation for disability could not be paid for any period 

during which he was receiving retirement benefits from OPM. On June 28, 2012 appellant 

agreed to accept a lump-sum payment for the schedule awards. 

Appellant informed OWCP by telephone on May 3, 2012 that he had elected disability 

retirement effective April 9, 2012. He was referred for vocational rehabilitation on 

May 15, 2012. A 24-week instructional program in business office and computer applications 

was approved, to begin October 8, 2012. On October 29, 2012 appellant advised OWCP that he 

wanted his compensation restored. He was returned to the periodic compensation rolls. 

In March 2013, appellant dropped out of school and informed OWCP that he would no 

longer participate in vocational rehabilitation due to personal reasons. On March 20, 2013 he 

informed OWCP that he had submitted a letter of intent to OPM and would be retiring effective 

April 1, 2013 and receive benefits through OPM. By letter dated April 24, 2013, OWCP 

informed appellant that annuity benefits paid by OPM and benefits for wage loss paid by OWCP 

were not payable for the same period. As he was entitled to receive both, he must elect which 

benefit to receive. Appellant submitted an undated election form, received by OWCP on May 2, 

2013, advising that he elected OPM retirement benefits effective April 1, 2013. The form stated: 

“I understand that I am not entitled to receive FECA benefits and CSRS/FERS benefits 

concurrently (except for a schedule award).” 

 2

 In a subsidiary claim OWCP accepted left shoulder conditions of disorder of bursae and tendons and adhesive 

capsulitis, sprain of shoulder and upper arm and left superior glenoid labrum lesion. 
3

A telephone conference was held with appellant on May 7, 2013 a vocational 

rehabilitation counselor and two OWCP claims examiners participating. Appellant noted that he 

had begun receiving retirement payments from OPM, effective April 1, 2013. He was informed 

that his FECA benefits would be terminated effective April 1, 2013 and an overpayment letter 

would be sent to him. Appellant acknowledged that there was an overpayment and was informed 

that he could elect FECA benefits in the future. 

On July 19, 2013 OWCP issued a preliminary finding that an overpayment of 

compensation in the amount of $2,944.55 had been created for the period April 1 through 

May 4, 2013. The overpayment occurred because appellant received FECA benefits and OPM 

retirement benefits during this period. He was found at fault because he accepted a payment 

which he knew or should have known to be incorrect. OWCP provided him with an 

overpayment action request and overpayment questionnaire. An overpayment worksheet reflects 

that appellant received FECA compensation totaling $2,944.55 for the period April 1 through 

May 4, 2013. 

Appellant requested a telephone conference. He contended that, the overpayment 

occurred through no fault of his because, prior to receiving the overpayment, he verbally told the 

claims examiner that he had chosen to retire under OPM and had sent him a March 8, 2013 letter 

confirming his decision. Appellant also submitted a completed overpayment questionnaire. A 

telephone conference was held on August 30, 2013 with him and an OWCP claims examiner 

participating. The claims examiner explained that OWCP could not terminate benefit payments 

until he completed an election form. 

By decision dated September 17, 2013, OWCP finalized the overpayment decision, 

finding that appellant was at fault in the creation of an overpayment of compensation in the 

amount of $2,944.55. Appellant was instructed to forward $120.00 per month in repayment. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 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 of FECA defines the limitations on the right to receive 

compensation benefits.4 Section 8116(a) provides that, while an employee is receiving workers’ 

compensation benefits, he or she may not receive salary, pay or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the Armed Forces, including benefits administered by the Department of Veterans 

Affairs, unless such benefits are payable for the same injury or the same death being 

compensated for under FECA.5 Section 10.421(a) of OWCP’s implementing regulations provide 

that a beneficiary may not receive wage-loss compensation concurrently with a federal 

 3

 5 U.S.C. § 8102(a). 

4 Id. at § 8116. 

5 Id. at § 8116(a). 
4

retirement or survivor annuity.6

 The beneficiary must elect the benefit that he or she wishes to 

receive.7

ANALYSIS -- ISSUE 1 

Appellant’s occupational disease claim was accepted for bilateral upper and lower 

extremity conditions and he was paid wage-loss compensation benefits under FECA. He applied 

for OPM retirement that became effective on April 1, 2013 and received OPM benefits effective 

that day. Appellant also received FECA benefits through May 4, 2013 totaling $2,944.55. He 

thus received simultaneous OPM and FECA benefits for the period April 1 through May 4, 2013. 

This constituted payment of dual benefits that is prohibited by statute. OWCP properly 

determined that an overpayment of compensation in the amount of $2,944.55 had been created 

for this period. In a telephone conference held on May 7, 2013 appellant did not dispute that 

there was an overpayment. 

The clear language of section 8116(a) of FECA and section 10.421(a) of OWCP’s 

implementing regulations prohibits the receipt of FECA wage-loss benefits and a federal 

annuity.8

 As appellant received $2,944.55 in FECA benefits while concurrently receiving OPM 

retirement benefits for the period April 1 through May 4, 2013, an overpayment of compensation 

in that amount was created.9

LEGAL PRECEDENT -- ISSUE 2 

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP 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.”10

Section 10.433(a) of OWCP’s regulations provide that OWCP: 

“[M]ay consider waiving an overpayment only if the individual to whom it was 

made was not at fault in accepting or creating the overpayment. Each recipient of 

compensation benefits is responsible for taking all reasonable measures to ensure 

that payments he or she receives from OWCP are proper. The recipient must 

show good faith and exercise a high degree of care in reporting events which may 

 6

 20 C.F.R. § 10.421(a). 

7 Id. 

8 See supra note 5; see also supra note 6. 

9 A.F., Docket No. 13-2038 (issued February 10, 2014). 

10 5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994). 
5

affect entitlement to or the amount of benefits. A recipient who has done any of 

the following will be found to be at fault in creating an overpayment: 

(1) Made an incorrect statement as to a material fact which he or 

she knew or should have known to be incorrect; 

(2) Failed to provide information which he or she knew or should 

have known to be material; or 

(3) Accepted a payment which he or she knew or should have 

known to be incorrect. (This provision applies only to the overpaid 

individual).”11

To determine if an individual was at fault with respect to the creation of an overpayment, 

OWCP examines the circumstances surrounding the overpayment. The degree of care expected 

may vary with the complexity of those circumstances and the individual’s capacity to realize that 

he or she is being overpaid.12

ANALYSIS -- ISSUE 2 

OWCP applied the third standard in determining that appellant was at fault in creating the 

overpayment, that he accepted a payment that he knew or should have known was incorrect. For 

OWCP to establish that he was at fault, it must establish that, at the time appellant accepted the 

compensation question, he knew or should have known the payment was incorrect.13

Appellant made an election to receive OPM retirements in lieu of FECA benefits, 

effective April 1, 2013. In the May 7, 2013 telephone conference, he acknowledged receiving 

OPM retirement benefits that day. The Board finds that, under these circumstances, a claimant 

who makes an election of benefits between FECA and OPM may be charged with knowledge 

that subsequent dual payments are incorrect.14 Appellant asserted on appeal that he disagreed 

with the overpayment decision. While OWCP issued wage-loss compensation for total disability 

for the period April 1 through May 5, 2013 after he began receiving benefits from OPM, it 

informed him in the overpayment conference that it could not stop his wage-loss compensation 

until it received a completed election form, which was received by OWCP on May 2, 2013. 

Even if the overpayment resulted from negligence on the part of OWCP, this does not excuse the 

employee from accepting payments which he knew or should have known were incorrect.15

The schedule award decision dated May 1, 2012 clearly informed appellant that, after the 

ending date of the award, his entitlement to compensation would be based solely on disability 

 11 20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430. 

12 Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006). 

13 See Sinclair L. Taylor, supra note 11. 

14 See J.J., Docket No. 13-1635 (issued February 18, 2014). 

15 Id. 
6

due to the accepted injury and that compensation could not be paid for any period during which 

he was receiving retirement benefits from OPM. On the election form completed by him, he 

attested to the fact that he was not entitled to receive FECA benefits and CSRS/FERS benefits 

concurrently, except for a schedule award. 

The facts in this case establish that appellant accepted wage-loss compensation from 

April 1 through May 4, 2013 while also in receipt of OPM retirement benefits. The schedule 

award decision and election form establish that he knew or should have known that he was not 

entitled to accept FECA compensation for a period in which he was also receiving retirement 

benefits through OPM. For these reasons, OWCP properly found that appellant was at fault 

because he knew or should have known the receipt of dual benefits was improper. As appellant 

was at fault under the third fault standard outlined above, he is not entitled to waiver of the 

overpayment of compensation. Furthermore, as he is no longer receiving FECA compensation, 

the Board does not have jurisdiction with respect to recovery of the overpayment.16

CONCLUSION 

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

$2,944.55 for the period April 1 through May 4, 2013 because he received dual FECA and OPM 

compensation benefits. The Board further finds that he was at fault in the creation of the 

overpayment of compensation and, therefore, is not entitled to waiver. 

 16 See Desiderio Martinez, 55 ECAB 245 (2004). 
7

ORDER 

IT IS HEREBY ORDERED THAT the September 17, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 1, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board