United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.B., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, PANGBORN MEMORIAL 

AIRPORT, East Wenatchee, WA, Employer 

__________________________________________ 

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Docket No. 15-1407 

Issued: October 21, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 16, 2015 appellant, through her representative, filed a timely appeal from a 

June 3, 2015 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 the case. 

ISSUES 

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

overpayment of compensation in the amount of $431.46 because she concurrently received 

Social Security Administration (SSA) benefits for the period December 1, 2014 through April 4, 

2015 while receiving FECA benefits; (2) whether OWCP properly found her at fault and thus not 

entitled to waiver of recovery of the overpayment; and (3) whether OWCP properly required 

 1

 5 U.S.C. §§ 8101-8193. 
2

repayment of the overpayment by deducting $71.91 every 28 days from appellant’s continuing 

compensation. 

On appeal appellant disputes the fault determination, noting that the June 3, 2015 

decision contains inconsistent language. 

FACTUAL HISTORY 

On June 24, 2010 appellant, then a 61-year-old transportation security officer, filed an 

occupational disease claim (Form CA-2) alleging that repetitively lifting heavy baggage caused 

right shoulder and arm pain. She did not stop work and was placed on modified duty. On 

July 27, 2010 OWCP accepted right rotator cuff strain. Appellant continued to work modified 

duty until October 27, 2010 when she had authorized right shoulder surgery. She stopped work 

at that time, received compensation, and was placed on the periodic compensation rolls. 

Appellant returned to modified duty on February 27, 2011. Effective June 5, 2011, the 

employing establishment could no longer accommodate her restrictions. Appellant was returned 

to the periodic compensation rolls, and in July 2011 was referred for vocational rehabilitation. 

On November 28, 2011 appellant informed OWCP that she had been awarded SSA 

disability benefits effective January 2012. OWCP informed her that FECA benefits would be 

offset by SSA benefits, not by disability benefits, but that when she reached full retirement age, 

her SSA benefit would convert to a retirement benefit, which would be offset. Appellant 

forwarded an SSA notice of award letter dated November 7, 2011 informing her that she was 

entitled to monthly SSA disability benefits beginning December 2011. 

In an October 22, 2012 decision, OWCP finalized its August 14, 2012 proposed reduction 

of appellant’s compensation based on her capacity to earn wages as a security officer, effective 

October 21, 2012. 

In January 2013 OWCP began development of whether appellant was receiving dual 

benefits from FECA and SSA. On January 28, 2013 and April 18, 2014 SSA informed OWCP 

that appellant received SSA disability benefits which were not subject to offset. On March 25, 

2015 it advised that, effective December 2014, appellant’s SSA benefits were now subject to 

offset. On April 3, 2015 OWCP informed appellant that her FECA benefits were being reduced 

to reflect the federal contribution to her SSA benefits. 

On April 15, 2015 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $431.46 had been created. It explained that the overpayment 

occurred because a portion of appellant’s SSA benefits, that she received from December 1, 2014 

through April 4, 2015, was based on credits earned while working in the Federal Government, 

and that this portion of her SSA benefit was a prohibited dual benefit. OWCP found appellant at 

fault because she accepted a payment that she knew or should have known was incorrect. The 

preliminary determination provided an explanation of the calculation of the overpayment. 

Appellant was provided an overpayment action request and an overpayment questionnaire. She 

was informed of the actions she could take and was allotted 30 days to respond. An 

overpayment worksheet indicated that the FERS offset for the period December 1, 2014 through 
3

April 4, 2015 totaled $431.46. On April 2, 2015 we received a report from SSA showing 

effective December 2014, the claimant’s SSA rate with FERS is $1,461.20 and SSA rate without 

FERS is $1,356.50. Based on this information, the monthly offset is $104.70 ($1,461.20-

$1,356.50). $104.70 x 12 months/13 months based on the 28-day cycle = $96.65. $96.65/28 = 

$3.4517 per day x 125 days covering the period December 1, 2014 to April 4, 2015 = $431.46. 

Appellant requested a telephone conference and submitted an overpayment questionnaire, 

signed on April 20, 2015. She reported monthly income of $1,991.00 and expenses totaling 

$1,295.00. Checking and savings accounts totaled $17,958.21. 

A telephone conference was held on June 2, 2015. Appellant reported receiving SSA 

disability benefits on November 28, 2011, and that, after previous inquiries, SSA notified OWCP 

on March 25, 2015 that retirement offset became effective December 1, 2014. At the conference 

she maintained that she was not at fault because she informed OWCP that she was receiving SSA 

benefits. Appellant stated that she would like to repay the overpayment by deductions from her 

continuing compensation. 

By decision dated June 3, 2015, OWCP finalized the preliminary overpayment 

determination, finding that appellant received an overpayment of compensation in the amount of 

$431.46. The decision further stated that she was at fault because “you would have not been 

reasonably aware of the cause of the overpayment.” Repayment in the amount of $71.91 was to 

be deducted from her continuing compensation, per compensation period. 

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.2 Section 8116 limits the right of an employee to receive compensation: 

While an employee is receiving compensation, he or she may not receive salary, pay or 

remuneration of any type from the United States.3 

Section 10.421 of the implementing regulations provide that an employee may not 

receive compensation for total disability concurrently with separation pay.4

 FECA Bulletin No. 

97-9 states that FECA benefits have to be adjusted for the FERS portion of SSA benefits because 

the portion of the SSA benefit earned as a federal employee is part of the FERS retirement 

package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited 

 2

 5 U.S.C. § 8102(a). 

3 Id. at § 8116(a). 

4

 20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007). 
4

dual benefit.5

 When OWCP discovers concurrent receipt of benefits, it must declare an 

overpayment in compensation and give the usual due process rights.6

ANALYSIS -- ISSUE 1 

The record supports that appellant received FECA wage-loss compensation commencing 

in 2011 that was reduced on October 21, 2012, based on her capacity to earn wages as a security 

officer. Appellant began receiving SSA disability benefits in January 2012 that converted to 

SSA retirement benefits on December 20, 2014, when she reached full retirement age.7

The portion of the SSA retirement benefits appellant earned as a federal employee was 

part of her FERS retirement package, and the receipt of benefits under FECA and federal 

retirement benefits concurrently is a prohibited dual benefit.8

 Appellant’s FECA compensation 

was not offset until April 4, 2015. The SSA notified OWCP of the applicable SSA rates for 

appellant and their effective dates. Based on these rates, OWCP was able to calculate the dual 

benefit appellant received from December 1, 2014 through April 4, 2015 which yielded an 

overpayment of compensation in the amount of $431.46. The record includes an overpayment 

worksheet explaining the overpayment calculation. 

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

the period December 1, 2014 through April 4, 2015 and finds that appellant received dual 

benefits totaling $431.46. Thus, an overpayment of compensation in that amount was created. 

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.”9

Section 10.433(a) of OWCP 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 

 5 See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000, Exhibit 1 

(February 1995). 

6 Id. at Chapter 2.1000.17.d(4) (April 1996). 

7

 For individuals born from 1943 to 1954, full retirement age is 66 years, which in appellant’s case was 

December 20, 2014. 

8

 5 U.S.C. § 8116; supra note 5. 

9 Id. at § 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; or (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).”10

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.11

ANALYSIS -- ISSUE 2 

The Board finds appellant at fault in the creation of the overpayment under the third 

standard described above, that appellant accepted a payment she knew or should have known to 

be incorrect. 

On November 28, 2011 appellant informed OWCP that she had been awarded SSA 

disability benefits effective January 2012. OWCP informed her that SSA disability benefits 

would not be offset by FECA benefits but that, when she reached full-retirement age, her SSA 

benefit would convert to a retirement benefit, which would be offset. Appellant reached fullretirement age on December 20, 2014.12 Thus, she knew or should have known after 

November 11, 2011 that SSA retirement benefits would be subject to offset when she reached 

full retirement age. As appellant continued to receive FECA compensation through April 4, 

2015 that were not reduced by the offset, the Board finds that she was at fault in the creation of 

the overpayment for the period December 1, 2014 through April 4, 2015 and is not entitled to 

waiver of recovery for this period.13 

As to appellant’s assertion on appeal, the Board notes that the final overpayment decision 

dated June 3, 2015, which found that appellant received an overpayment of compensation in the 

amount of $431.46, included contradictory language, stating that she was at fault because “you 

would have not been reasonably aware of the cause of the overpayment.” However, the decision 

also states that it was determined “that the preliminary finding that you were at fault in the matter 

 10 20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430. 

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

12 Supra note 7. 

13 L.L., Docket No. 12-1724 (issued March 26, 2013). 
6

of the overpayment was correct.”14 The Board finds the contradictory statement a scrivener’s 

error as the June 3, 2015 decision clearly reflects that appellant was found at fault.15

LEGAL PRECEDENT -- ISSUE 3 

OWCP’s implementing regulations provide that, if an overpayment of compensation has 

been made to an individual entitled to further payments and 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.16

ANALYSIS -- ISSUE 3 

The record supports that, in requiring repayment of the $431.46 overpayment by 

deducting $71.91 from appellant’s compensation payments every four weeks, OWCP took into 

consideration the financial information submitted by appellant as well as the factors set forth in 

section 10.441(a) of its regulations and found that this method of recovery would minimize any 

resulting hardship on appellant. Therefore, OWCP properly required repayment of the 

overpayment by deducting $71.91 from appellant’s compensation payments every four weeks.17

CONCLUSION 

The Board finds that OWCP properly determined that appellant was at fault in the receipt 

of an overpayment of compensation in the amount of $431.46 and that OWCP properly required 

recovery of the overpayment by deducting $71.91 every 28 days from her continuing 

compensation payments.18

 14 The April 15, 2015 preliminary overpayment finding clearly found appellant at fault in creating the 

overpayment because she accepted a payment that she knew or should have known was incorrect. 

15 See J.H., Docket No. 08-2432 (issued June 15, 2009). 

16 20 C.F.R. § 10.441(a). 

17 Id.; see C.P., Docket No. 13-1341 (issued January 6, 2014). 

18 The Board notes that the overpayment has been repaid in full. 
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ORDER 

IT IS HEREBY ORDERED THAT the June 3, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: October 21, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board