United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.C., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, Oyster Bay, NY, 

Employer 

__________________________________________ 

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Docket No. 15-1280 

Issued: November 13, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 18, 2015 appellant filed a timely appeal from a November 21, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 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. 

ISSUES 

The issues are: (1) whether OWCP properly found an overpayment of $61,947.91; 

(2) whether it properly found that appellant was at fault in creating the overpayment; (3) whether 

OWCP properly found the overpayment should be recovered by deducting $338.23 from 

continuing compensation payments; and (4) whether it properly denied appellant’s request for a 

prerecoupment hearing. 

 1

 The record also contains a December 12, 2014 decision denying a request for a hearing. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that appellant sustained a lumbosacral sprain in the performance of duty 

as a park ranger on December 21, 1991. Appellant stopped working and received wage-loss 

compensation based on total disability. He was annually requested to complete EN1032 forms 

with respect to employment activity and receipt of benefits. The form specifically asks a 

claimant to report any benefits received from the Social Security Administration (SSA) which 

are received as part of an annuity for federal service. The record indicates that on EN1032 forms 

dated March 28, 2008, April 3, 2009, April 21, 2010, May 2, 2011, April 30, 2012, June 6, 2013, 

and April 2, 2014, appellant stated “no” in response to the question as to receipt of social 

security benefits. 

On August 28, 2014 OWCP requested that the SSA provide information regarding 

appellant’s receipt of social security benefits. In a form completed September 10, 2014, SSA 

reported that appellant began receiving SSA retirement benefits as of April 2008.3

 SSA provided 

the amount he would have received based on federal service with Federal Employee’s 

Retirement Service (FERS) and the amount he would have received without FERS. 

By letter dated September 17, 2014, OWCP advised appellant that it was aware that he 

had been receiving age-related social security benefits since April 1, 2008. It stated that it would 

begin offsetting the social security benefits attributable to federal service as of 

September 21, 2014. 

OWCP advised appellant in a letter dated October 10, 2014 of its preliminary 

overpayment determination of $61,947.91 for the period April 1, 2008 to September 20, 2014. 

The basis for the overpayment was appellant’s receipt of wage-loss compensation while he was 

also receiving retirement benefits from SSA as part of an annuity under FERS. As to the amount 

of the overpayment, OWCP explained that the portion of the social security benefits attributable 

to federal service should have been deducted from appellant’s compensation. Using the figures 

provided by SSA, it calculated the daily amount to be deducted for specific periods and included 

a calculation worksheet. 

It was explained that, for the period April 1 through November 30, 2008, appellant 

received $1,386.80 per month in social security retirement benefits. The amount not based on 

federal service was $648.00, thus the difference of $738.80 per month should have been offset 

from appellant’s wage-loss compensation benefits. The monthly amount of $738.80 was 

equivalent to the 28-day amount of $681.969, or the daily amount of $24.356. Since the period 

April 1 through November 30, 2008 covered 244 days, the amount that should have been offset 

for that period was $5,942.87. 

Similar calculations were provided for subsequent time periods at issue, with increased 

figures of social security retirement benefits reflected. It was calculated that, for the period 

December 1, 2008 to November 30, 2011, the amount that should have been offset was 

$28,218.51. For the period December 1, 2011 through November 30, 2012 the offset amount 

 3

 The record also contains a form dated July 8, 2013 from SSA indicating that appellant was eligible for disability 

benefits as of May 1972. 
3

should have been $9,772.20, for the period December 1, 2012 through November 30, 2013 the 

offset amount should have been $9,911.55, and for the period December 1, 2013 through 

September 20, 2014 the offset amount should have been $8,102.77. For the entire period 

April 1, 2008 to September 20, 2014, OWCP found $61,947.91 should therefore have been 

deducted. 

In the October 10, 2010 letter, OWCP made a preliminary determination that appellant 

was at fault in creating the overpayment as he had made an incorrect statement as to a material 

fact that he knew or should have known was incorrect, citing the submission of Forms EN1032. 

Appellant was advised that he had 30 days to submit an enclosed Form OWCP-20 and relevant 

financial information with respect to waiver or recovery of the overpayment. In addition, OWCP 

advised him that he had 30 days to request a prerecoupment hearing before an OWCP hearing 

representative. 

The record contains a memorandum of telephone call dated November 7, 2014 stating 

that appellant was seeking a 30-day extension as he was looking to go into a facility for brain 

injuries. A memorandum of telephone call dated November 19, 2014 indicated that OWCP 

spoke with a social worker, with appellant in attendance, regarding the overpayment. In a letter 

dated November 19, 2014, appellant’s congressional representative asserted that appellant 

suffered from a traumatic brain injury and had difficulty processing information. The hearing 

representative stated that appellant claimed that he had acted in good faith and had answered the 

questions on the EN1032 forms to the best of his ability. 

By decision dated November 21, 2014, OWCP finalized its determination of a 

$61,947.91 overpayment. It found that no evidence had been presented as to a brain injury, that 

appellant had been provided 30 days to respond to the October 10, 2014 preliminary 

determination, but no response was received and that it found him at fault for the overpayment. 

OWCP affirmed its preliminary finding of fault, which was that he had made an incorrect 

statement as to material fact on the EN1032 forms, and it also stated that he had accepted a 

payment he knew or reasonably should have known was incorrect. It found that the overpayment 

would be recovered by deducting $336.23 from his 28-day continuing compensation payments.4

 

On December 1, 2014 OWCP received a November 20, 2014 request for a 

prerecoupment hearing before an OWCP hearing representative.5

 Appellant submitted a 

November 20, 2014 letter from a social worker stating that he had significant mental health and 

psychological problems. He also submitted a Form OWCP-20 overpayment recovery 

questionnaire dated November 20, 2014. 

By decision dated December 12, 2014, OWCP denied the request, finding it was untimely 

filed. 

 4

 A November 20, 2014 memorandum states that this represents 27 percent of appellant’s net compensation. 

According to the memorandum, a lesser percentage triggered an error message based on his life expectancy and the 

recovery end date. 

5

 The postmark date is difficult to read, but appears to be November 21, 2014. 
4

LEGAL PRECEDENT -- ISSUE 1 

5 U.S.C. § 8116(d)(2) requires that compensation benefits be reduced by “the amount of 

any such [SSA] benefits payable that are attributable to federal service.” OWCP procedures 

provide that, while social security benefits are payable concurrently with FECA benefits, in 

disability cases, FECA benefits will be reduced by social security benefits paid on the basis of 

age and attributable to the employee’s federal service.6 It obtains 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 social security benefits received by the claimant/beneficiary. 

SSA will also provide a hypothetical social security benefit computed without 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.7 

ANALYSIS -- ISSUE 1 

The overpayment in this case is based on the evidence provided by the SSA on the 

benefits it paid to appellant. This evidence shows that in April 2008 he began receiving SSA 

retirement benefits. The SSA benefits attributable to appellant’s federal service was provided by 

SSA. However, a claimant cannot simultaneously receive both wage-loss compensation under 

FECA and SSA retirement benefits attributable to the claimant’s federal service. In this case, 

appellant received wage-loss compensation from April 1, 2008 to September 20, 2014, while 

also receiving social security benefits based his on federal service. Accordingly, an overpayment 

of FECA wage-loss compensation was created. 

As to the amount of the overpayment, OWCP provided a detailed discussion as to its 

calculations, as well as a calculation worksheet. Based on the information from SSA, it 

identified the offset amount for specific periods: April 1 to November 30, 2008, December 1, 

2008 to November 30, 2011, December 1, 2011 to November 30, 2012, December 1, 2012 to 

November 30, 2013, and December 1, 2013 to September 20, 2014. OWCP identified the 

number of days in each period and found that the overpayment amount was $5,942.87, 

$28,218.51, $9,772.20, $9,911.55, and $8,102.77 respectively. The total overpayment was 

therefore $61,947.91, and no contrary evidence is of record. The Board finds that OWCP 

properly found an overpayment of $61,947.91 was created in this case. 

LEGAL PRECEDENT -- ISSUE 2 

5 U.S.C. 8129(b) provides: “Adjustment or recovery by the United States may not be 

made when 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 

 6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (June 2009). This 

same section of the manual explains that if social security benefits are paid for disability rather than age, social 

security benefits paid for disability shall be reduced by FECA compensation payable. 

7

 FECA Bulletin No. 97-09 (issued February 3, 1997). See also P.G., Docket No. 13-589 (issued July 9, 2013). 
5

conscience.”8 A claimant who is at fault in creating the overpayment is not entitled to waiver.9 

On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or 

she has done any of the following: “(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 was incorrect.” 

ANALYSIS -- ISSUE 2 

As noted above, a finding of fault may properly be based on any of the three standards 

found under 20 C.F.R. § 10.433. As discussed in the preliminary determination, appellant had 

completed EN1032 forms from March 28, 2008 to April 2, 2014. The EN1032 forms 

specifically require a claimant to provide information with respect to receipt of social security 

benefits. The “no” response was an incorrect statement as to a material fact. The period of the 

overpayment, however, extended to September 20, 2014. There is no evidence of record that 

appellant made an incorrect statement as to material fact between April 2 and 

September 20, 2014. OWCP has therefore not established that he was at fault in the creation of 

the overpayment after April 2, 2014 based on making an incorrect statement of material fact. 

The Board notes that in the final overpayment decision dated November 21, 2014 OWCP 

affirmed the finding of fault based on making incorrect statements of material fact, but also 

found that appellant was at fault for accepting payments he knew or should have known were 

incorrect. 

Extensive due process rights attach to any attempt by OWCP to recoup benefits already 

paid, even if paid in error. The Board has held that OWCP may not change the grounds for fault

to a standard to which the claimant has had no opportunity to respond. As making an incorrect 

statement as to material fact was the only reason provided for finding fault in both the 

preliminary determination and the final decision, the Board may affirm the finding of fault only 

on this basis.10 Upon return of the case record OWCP shall determine whether the overpayment 

appellant received after April 2, 2014 should be waived. 

The November 19, 2014 letter from appellant’s congressional representative states that 

appellant claimed the answers provided were to the best of his ability and in good faith. To the 

extent that appellant asserts that he did not know that he needed to report SSA retirement 

benefits he was receiving, the Board notes that the standard is knew or should have known to be 

incorrect. As the Board has indicated, the forms provide clear language as to the necessity of 

reporting social security benefits.11 Although appellant’s congressional representative referred to 

a difficulty in processing information, there was no probative evidence of record on this issue 

submitted to OWCP prior to November 21, 2014. There was no supporting evidence for an 

 8

 5 U.S.C. § 8129(b). 

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

10 See Anna E. Eacker, Docket No. 05-1245 (issued April 12, 2006). 

11 See R.B., Docket No. 15-0192 (issued August 6, 2015); P.G., Docket No. 15-0413 (issued June 25, 2015). 
6

argument that appellant could not understand the clear language provided on the EN1032 forms. 

The evidence establishes that he made an incorrect statement as to a material fact that he knew or 

should have known to be incorrect through April 2, 2014. 

LEGAL PRECEDENT -- ISSUE 3 

OWCP regulations provide: 

“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 the 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 hardship.”12

With respect to the submission of financial evidence, OWCP’s regulations at 20 C.F.R. 

§ 10.438 provide: 

“(a) 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. 

This information will also be used to determine the repayment schedule, if 

necessary. 

“(b) Failure to submit the requested information within 30 days of the request 

shall result in denial of waiver, and no further request for waiver shall be 

considered until the requested information is furnished.” 

ANALYSIS -- ISSUE 3 

In this case, OWCP advised appellant that he needed to submit a Form OWCP-20 

overpayment questionnaire and relevant financial documents. In determining amount to be 

deducted from his continuing compensation, OWCP regulations identified above require that 

OWCP consider financial circumstances and other relevant factors to minimize hardship. 

Appellant did not submit any relevant financial information prior to the final 

overpayment decision. As noted above, it is his responsibility to submit the necessary financial 

information. When a claimant fails to submit financial information, OWCP may recover the 

overpayment in installments large enough to recover the debt promptly.13 In the present case, 

 12 20 C.F.R. § 10.441. 

13 P.P., Docket No. 14-2048 (issued May 13, 2015). 
7

OWCP considered appellant’s life expectancy and indicated that it would recover the minimum 

amount from continuing compensation to recover the overpayment in a timely fashion.14 

LEGAL PRECEDENT -- ISSUE 4 

OWCP regulations on the recovery of overpayments provide that, before collecting the 

overpayment, it must provide the claimant with written notice of the fact and amount of the 

overpayment, the finding of fault, the right to submit evidence challenging the fact, amount, or 

finding of fault and the right to request waiver of the overpayment.15 The regulations further 

provide that a claimant may request a prerecoupment hearing with respect to an overpayment.16 

Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right 

to a hearing.17 

ANALYSIS -- ISSUE 4 

The preliminary determination of overpayment and fault was dated October 10, 2014. 

Appellant had 30 days from that date to request a prerecoupment hearing before an OWCP 

hearing representative. A memorandum of telephone call dated November 7, 2014 indicated that 

he requested an extension of time. The Board, however, has held that there is no provision in the 

regulations for extending the 30-day time period.18 The prerecoupment request was postmarked 

November 21, 2014. Since this is more than 30 days after the October 10, 2014 preliminary 

determination, it is untimely. The Board finds that appellant waived his right to a prerecoupment 

hearing. 

On appeal, appellant states that he is unable to understand the letters received from 

OWCP due to a brain injury and mental illness. He states that he submitted letters from a social 

worker and a psychologist regarding his mental condition. OWCP did receive a letter from a 

social worker on December 1, 2014. This letter was not before OWCP at the time of the 

November 21, 2014 decision, and it is well established that a social worker is not a physician 

under FECA and therefore the letter is of no probative medical value.19 With respect to the 

request for a prerecoupment hearing, as noted above, there is no provision for extension of the 

 14 If OWCP receives financial information and determines that the overpayment should be waived after April 2, 

2014, it should also determine whether the rate of the recovery of the overpayment should be adjusted. 

15 20 C.F.R. § 10.431. 

16 Id. at 10.432. 

17 Id. 

18 See G.W., Docket No. 12-0297 (issued October 25, 2012); H.K., Docket No. 11-543 (issued 

November 25, 2011). 

19 R.W., Docket No. 14-1890 (issued February 11, 2015). 
8

30-day time period. As to evidence from a psychologist, the record did not contain a medical 

report that was before OWCP as of December 12, 2014.20 

CONCLUSION 

The Board finds that OWCP properly found an overpayment of $61,947.91 was created, 

that appellant was not entitled to waiver of the overpayment through April 2, 2014, and that 

recovery of the overpayment would be accomplished by deductions from continuing 

compensation payments. In addition, OWCP properly denied his request for a prerecoupment 

hearing. The Board also finds that OWCP has not established that appellant was at fault in the 

creation of the overpayment after April 2, 2014. Upon return of the case record OWCP shall 

determine whether the overpayment after April 2, 2014 should be waived. 

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated December 12 and November 21, 2014 are affirmed in part, and 

reversed in part. 

Issued: November 13, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 20 The Board can review only evidence that was before OWCP at the time of the final decisions on appeal. 

20 C.F.R. § 501.2(c)(1).