United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

South Hackensack, NJ, Employer 

__________________________________________ 

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Docket No. 15-0414 

Issued: August 7, 2015 

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 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 15, 2014 appellant filed a timely appeal from a November 18, 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 a 

$10,684.11 overpayment of compensation for the period February 1, 2012 to January 11, 2014; 

(2) whether it properly found that he was at fault in creating the overpayment of compensation; 

and (3) whether OWCP properly required repayment of the overpayment by deducting $300.00 

from appellant’s compensation payments every 28 days. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on May 9, 2010 appellant, then a 64-year-old custodian, sustained 

lumbosacral radiculitis and cervical radiculitis when he lifted a heavy container of floor finish. 

Following a brief work absence, appellant returned to modified duty. OWCP accepted that he 

sustained a recurrence of disability commencing August 23, 2010. Appellant did not return to 

work. He received compensation on the daily and periodic rolls beginning August 29, 2010. On 

November 30, 2010 appellant underwent C5-6 and C6-7 fusions and fixation, authorized by 

OWCP. 

Appellant reached 66 years of age on February 11, 2012, converting the Social Security 

Administration (SSA) disability benefits he received to age-related retirement benefits. In an 

affidavit of earnings and employment (Form CA-1032) dated February 14, 2012 in response to 

the question, “Do you receive benefits from the SSA as part of an annuity for federal service?” 

appellant answered “no.” 

On February 11, 2012 OWCP issued appellant a check for $2,570.04 in compensation, 

covering the period January 15 to February 11, 2012. Appellant elected to receive FECA 

benefits by direct deposit effective March 9, 2012. The first payment after March 9, 2012 was 

issued by check dated March 10, 2012. OWCP issued the first payment by direct deposit on 

April 7, 2012, covering the period March 11 to April 7, 2012. 

In an EN1032 form signed on April 10, 2013, appellant stated that he did not receive SSA 

benefits as part of an annuity for federal service. 

In a January 24, 2014 letter, OWCP advised appellant that he had been receiving SSA 

age-related retirement benefits since February 1, 2012. The SSA confirmed that a portion of his 

SSA benefits were attributable to his federal service as an employee under the Federal 

Employees Retirement System (FERS) program. OWCP explained that the portion of 

appellant’s SSA benefit attributable to his federal service required an offset. The offset would 

begin with the February 8, 2014 payment. 

On January 15, 2014 SSA provided information to OWCP regarding appellant’s agerelated retirement benefits for the period February 1, 2012 to January 11, 2014. From February 1 

to November 30, 2012 appellant’s SSA rate was $1,202.10 with FERS and $751.00 without. 

From December 1, 2012 to November 30, 2013, his SSA rate with FERS was $1,222.50 and 

$763.80 without. From December 1, 2013 through January 11, 2014, appellant’s SSA rate with 

FERS was $1,240.80 and $775.20 without. OWCP calculated that, based on these amounts, his 

FECA benefits should have been offset by $10,684.11 from February 1, 2012 through 

January 11, 2014. It determined that, from February 1 to November 30, 2012, the daily FERS 

offset of $14.87 multiplied by 304 days equaled $4,519.91. From November 30 to December 1, 

2012 to the daily FERS offset amount of $15.12 multiplied by 365 days equaled $5,519.52. For 

the period December 1, 2013 to January 11, 2014, the daily FERS offset amount of $1.35 

multiplied by 42 days equaled $644.68. OWCP added the total amounts to equal $10,684.11. 

As appellant’s FECA benefits were not offset, the $10,684.11 amount represented an 

overpayment of compensation. 
3

By notice dated January 24, 2014, OWCP advised appellant of its preliminary 

determination that an overpayment of compensation in the amount of $10,684.11 was created in 

his case as he received FECA benefits concurrently with SSA age-related retirement benefits 

from February 1, 2012 through January 11, 2014 without deduction of the FERS offset. It found 

him at fault because he was aware or reasonably should have been aware that he was not entitled 

to receive a retirement annuity for federal service under FERS and SSA age-related retirement 

benefits. The EN1032 forms appellant signed advised him to report “any change in income from 

federally-assisted disability or benefit programs.” OWCP noted that when he turned 66 years of 

age, his SSA disability benefits were converted to full retirement age benefits as part of his 

retirement package. However, appellant did not report this change in benefits on his EN1032 

forms. OWCP afforded him 30 days to submit information regarding his income, assets, and 

expenses, and to request a prerecoupment hearing. 

In response, appellant submitted an overpayment recovery questionnaire (Form OWCP20) signed on February 7, 2014. He listed $2,213.31 in cash and checking accounts, monthly 

income of $4,714.10 from his SSA benefits, his wife’s SSA benefits, FECA benefits, and 

payments from the Department of Veterans Affairs. Appellant contested the fact and amount of 

the overpayment, and asserted that he was without fault in its creation. He requested a 

prerecoupment hearing. 

In a February 11, 2014 letter, appellant, through counsel, contended that OWCP was well 

aware of the change in his SSA benefits, yet continued to pay compensation at an incorrect rate. 

In a February 20, 2014 Form EN1032, appellant stated that he received SSA benefits as 

part of an annuity for federal service. 

During the hearing, conducted telephonically on August 8, 2014, appellant confirmed that 

he reached 66 years of age on February 11, 2012 and began receiving SSA retirement benefits. 

He noted that he worked in the private sector prior to his federal employment. Appellant 

explained that he had filed for bankruptcy in 2011 or 2012, but withdrew the bankruptcy as an 

attorney was able to renegotiate his mortgage payment. He noted monthly expenses of 

$2,150.00 for rent, $800.00 for food for himself and his wife, $300.00 for clothing, $600.00 for 

utilities, and $575.00 for medical and dental expenses. Appellant noted that he was in poor 

health due to the accepted cervical injury and fusion, as well as glaucoma. He asserted that he 

did not intend to deceive OWCP and that he was not at fault in creating the overpayment. 

Appellant requested waiver of the overpayment. 

In an October 24, 2014 letter, OWCP advised appellant to complete a new OWCP-20 

form, indicating any changes since he completed the questionnaire on February 7, 2014. It also 

requested documentation of his expenses, including bank statements and monthly bills. 

Counsel responded by letter dated November 11, 2014 and an updated Form OWCP-20, 

imaged into the case record by OWCP on November 18, 2014. He noted that appellant was 

undergoing dental implants requiring a $5,000.00 loan, with a monthly payment of $277.00. 

Appellant noted monthly expenses of $97.55 in automobile insurance, $250.00 for electricity and 

gas, $50.00 for water, $194.00 for telephone, television and internet, $157.08 for cell phones, 
4

and $60.00 for prescription medications. He provided monthly bills substantiating these 

payments. 

By decision dated November 18, 2014, OWCP’s hearing representative finalized the 

overpayment determination, finding a $10,684.11 overpayment of compensation for the period 

February 1, 2012 to January 11, 2014, and that appellant was at fault in its creation as he knew or 

should have known that he was not entitled to receive SSA retirement benefits simultaneously 

with FECA benefits. She found that he provided incorrect or minimal information on EN1032 

forms regarding his receipt of SSA benefits, and “continued to accept OWCP payments thus 

contributing to the creation of the overpayment.” The hearing representative found that the 

record established that appellant’s FERS benefits were based in part on his federal employment. 

Regarding the rate of recovery of the overpayment, she found that he “provided no specific 

information regarding his income and expenses to make a determination of his financial 

situation.” Based on appellant’s February 2014 overpayment recovery questionnaire, OWCP 

directed recovery of the overpayment by deducting $300.00 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 her duty.2 Section 8129(a) of FECA provides, in pertinent part: 

“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.”3 

Section 8116(d)(2) of FECA4 provides for limitations on the right to receive 

compensation and states in pertinent part: 

“(d) Notwithstanding the other provisions of this section, an individual receiving 

benefits for disability or death under this subchapter who is also receiving benefits 

under [S]ubchapter [3] of [C]hapter 84 of this title or benefits under [T]itle [2] of 

the [SSA] shall be entitled to all such benefits, except that --” 

* * * 

“(2) in the case of benefits received on account of age or death 

under title [2] of the [SSA,] compensation payable under this 

subchapter based on the [f]ederal service of an employee shall be 

reduced by the amount of any such social security benefits payable 

 2 Id. at § 8102(a). 

3 Id. at § 8129(a). 

4 Id. at § 8116(d)(2). 
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that are attributable to [f]ederal service of that employee covered 

by [C]hapter 84 of this title....”5 

A FECA beneficiary may not receive wage-loss compensation concurrently with a 

federal retirement or survivor annuity.6

ANALYSIS -- ISSUE 1 

Appellant reached 66 years of age on February 11, 2012. He received FECA wage-loss 

compensation and SSA age-related retirement benefits concurrently from February 1, 2012 

continuing through January 11, 2014. The receipt of concurrent FECA and FERS benefits 

attributable to federal employment 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 appellant received a prohibited dual benefit from 

February 1, 2012 through January 11, 2014 in the amount of $10,684.11, thereby creating an 

overpayment of compensation. 

The Board finds that OWCP properly found that appellant received an overpayment of 

compensation from February 1, 2012 through January 11, 2014 due to the prohibited dual 

benefit. The Board has reviewed its calculations of the dual benefits appellant received for the 

period February 1, 2012 through January 11, 2014 and finds that it properly determined that he 

received dual benefits totaling $10,684.11, creating an overpayment of compensation in that 

amount. The Board notes that on appeal appellant does not contest the fact or amount of the 

overpayment. 

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 

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

 

 5 Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.11(a)(b) 

(February 1995); FECA Bulletin No. 97-9 (issued February 3, 1997) (the portion of SSA benefits earned as a federal 

employee is part of FERS retirement package and the receipt of FECA benefits concurrently with federal retirement 

is a prohibited dual benefit). B.L., Docket No. 13-1422 (issued June 2, 2014). 

6 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a). See also P.M., Docket No. 14-1832 (issued 

January 20, 2015). 

7 B.L., Docket No. 13-1422 (issued June 2, 2014). 

8 C.V., Docket No. 13-2108 (issued June 17, 2014); W.M., Docket No. 11-2000 (issued May 21, 2012). 
6

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

section 10.433(a) of OWCP’s 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.”9

The regulations further provide that each recipient of compensation benefits is 

responsible to ensure that payments he or she receives from OWCP are proper.10 Whether or not 

OWCP determines that an individual was at fault with respect to the creation of the overpayment 

depends on the circumstances surrounding the overpayment.11 

ANALYSIS -- ISSUE 2 

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

made an incorrect statement as to a material fact that he knew or should have known to be 

incorrect. In his EN1032 forms dated February 14, 2012 and April 10, 2013, covering the 

relevant period between 2012 and 2014, appellant consistently reported that he was not receiving 

SSA benefits as part of an annuity for federal service. This was not an accurate statement as he 

was clearly receiving SSA benefits based on periods of his federal employment. 

The Board finds that appellant was aware that he received SSA and FECA benefits 

simultaneously. Appellant inaccurately reported that he was not receiving SSA benefits on the 

EN1032 forms he completed. Based on the clear language of the forms which he knowingly 

signed, appellant made an incorrect statement as to a material fact. The Board, thus, finds that 

appellant was at fault in the creation of the overpayment and is therefore precluded from 

receiving a waiver.12 

 9

 5 U.S.C. § 8129(b). 

10 20 C.F.R. § 10.433(a). 

11 Id. 

12 V.E., Docket No. 15-340 (issued April 1, 2015). See also R.L., Docket No. 13-713 (issued August 15, 2013). 
7

LEGAL PRECEDENT -- ISSUE 3 

Section 8129 of FECA provides that when an overpayment has been made to an 

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

payments to which the individual is entitled.13 

Section 10.441 of OWCP’s regulations provide that, 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 any hardship.14 

ANALYSIS -- ISSUE 3 

OWCP determined that it would collect appellant’s overpayment by deducting $300.00 

from each compensation check. In its November 18, 2014 decision, it found that he “provided 

no specific information regarding his income and expenses to make a determination of his 

financial situation.” However, appellant submitted extensive financial documentation on 

November 18, 2014, including an overpayment recovery questionnaire, copies of bills, and debt 

repayment statements. 

In the case of William A. Couch,

15 the Board held that when adjudicating a claim, OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by it before 

the final decision is issued. In the present case, OWCP determined a repayment schedule in its 

November 18, 2014 decision, but it did not consider the financial information that appellant 

submitted timely on November 18, 2014. Under these circumstances, the case will be remanded 

to OWCP for full consideration of appellant’s financial information. Following this and any 

other development deemed necessary, OWCP shall issue an appropriate decision in the case. 

On appeal, appellant requests that OWCP adjust the repayment schedule as the $300.00 

deduction every 28 days was creating financial hardship. As stated above, the case will be 

remanded to OWCP for additional development on the issue of rate of recovery. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant received a $10,684.11 

overpayment of compensation for the period February 1, 2012 to January 11, 2014. The Board 

further finds that OWCP properly found appellant at fault in creating the overpayment of 

compensation for the period February 1, 2012 to January 11, 2014. The Board further finds that 

OWCP did not properly consider the financial information of record in determining the rate of 

 13 20 C.F.R. § 10.436. 

14 Id. at § 10.441(a). 

15 41 ECAB 548 (1990). See Linda Johnson, 45 ECAB 439, 440 (1994) (the Board remanded, directing OWCP 

to consider evidence received the same date it issued its final decision). 
8

recovery of the overpayment. The case will be remanded for additional development on the 

issue of the rate of recovery of the overpayment. 

ORDER 

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

Compensation Programs dated November 18, 2014 is affirmed in part, and set aside in part, and 

remanded for further actions consistent with this decision. 

Issued: August 7, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board