United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.H, Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 16-1465 

Issued: December 19, 2016 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 7, 2016 appellant, through her representative, filed a timely appeal from a 

March 2, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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 appellant received an overpayment of $38,168.89 because 

OWCP failed to offset the portion of her Social Security Administration (SSA) retirement 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

benefits attributable to her federal service from July 1, 2007 through April 4, 2015; (2) whether 

appellant was at fault in creating the overpayment; and (3) whether OWCP properly determined 

that it would recover the overpayment by deducting $200.00 per month from continuing 

compensation payments. 

FACTUAL HISTORY 

On August 31, 2002 appellant, then a 54-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained spinal stenosis, a herniated disc, and 

difficulties with both legs due to factors of her federal employment. She stopped work on 

August 16, 2002. OWCP accepted the claim for a temporary aggravation of spinal stenosis.3 It 

paid appellant compensation for total disability beginning September 7, 2002. 

Appellant completed EN1032 forms none of forms from 2007 to 2014 and reported that 

she did not receive benefits from SSA. On a Form EN1032 dated February 6, 2015, she advised 

that she received a widow’s pension from SSA. 

On March 24, 2015 SSA provided the entire amount that appellant received in SSA 

retirement benefits including the part attributable to her federal service under Federal 

Employees’ Retirement System (FERS) and the hypothetical amount that she would have 

received without FERS. Including FERS, it indicated that she was entitled to a monthly payment 

rate of $683.40 effective July 2007, $699.10 effective December 2007, $739.60 effective 

December 2008 to 2010, $766.20 effective December 2011, $779.20 effective December 2012, 

$790.80 effective December 2013, and $804.20 effective December 2014. Without FERS, 

appellant was entitled to a monthly payment of $311.00 effective July 2007, $318.10 effective 

December 2007, $336.50 effective December 2008 to 2010, $348.60 effective December 2011, 

$354.50 effective December 2012, $359.80 effective December 2013, and $365.90 effective 

December 2014. 

By letter dated April 13, 2015, OWCP advised appellant that it was adjusting her 

compensation to offset the portion of her SSA retirement benefits attributable to her federal 

service.4

 It informed her that the portion of the SSA benefits she received due to her work as a 

federal employee was part of the FERS retirement program. 

On April 24, 2015 OWCP notified appellant of its preliminary determination that she 

received an overpayment of $38,168.89 because it had not reduced her compensation benefits 

from July 1, 2007 to April 4, 2015 by the portion of her SSA benefits based on her federal 

service. It calculated the overpayment by determining the difference between her SSA amount 

with and without FERS for each period. OWCP then multiplied the daily offset amount by the 

 3

 In a decision dated September 5, 2008, OWCP denied appellant’s claim for a schedule award. It found that she 

had not submitted medical evidence sufficient to establish permanent impairment due to her accepted work injury. 

4

 In a decision dated April 16, 2015, OWCP found that appellant received an overpayment of $7,751.14 because 

she received augmented compensation from February 21, 2012 to December 13, 2014 when she had no dependent. 

It further found that she was at fault in the creation of the overpayment and that it would recover the overpayment by 

deducting $50.00 from her continuing compensation payments. This overpayment decision is not presently before 

the Board. 
3

number of days in each period to find a total overpayment of $38,168.89. It further advised 

appellant of its preliminary determination that she was at fault in creating the overpayment. 

OWCP requested that she complete the enclosed overpayment recovery questionnaire (Form 

OWCP-20) and submit supporting financial documents. Additionally, it notified appellant that, 

within 30 days of the date of the letter, she could request a telephone conference, a final decision 

based on the written evidence or a prerecoupment hearing. 

Appellant submitted a completed overpayment recovery questionnaire dated 

May 4, 2015. She noted monthly income of $2,441.96 and expenses of $2,390.22. Appellant 

related that she advised OWCP on EN1032 forms beginning in 2007 that she received SSA 

benefits. She indicated that in 2011 her former husband died and SSA switched her over to his 

benefits. On May 15, 2015 appellant submitted supporting financial documentation and 

requested a prerecoupment hearing. 

In a Form EN1032 dated October 12, 2015, appellant indicated that beginning 

September 2011 she received a widow’s pension from SSA for her deceased spouse of $950.00 

monthly. 

At the telephone hearing, held on December 17, 2015, appellant’s representative advised 

that she had not included all of her monthly expenses on the overpayment recovery 

questionnaire. 

In a FERS/SSA dual benefits calculations form dated January 13, 2016, SSA provided 

revised calculations for appellant’s SSA rate with FERS as $634.00 effective July and 

September 2007, $648.60 effective December 2007, $686.20 effective December 2008 to 2010, 

$970.10 effective September 2011, $1,005.00 effective December 2011, $1,022.00 effective 

December 2012, $1,037.30 effective December 2013, $1,054.90 effective December 2014, and 

$1,054.90 effective December 2015. It also provided her rate without FERS, which ranged from 

$288.50 effective July 2007 to $339.40 effective December 2014. 

By decision dated March 2, 2016, OWCP’s hearing representative found that appellant 

received an overpayment of $38,168.89 for the period July 1, 2007 to April 4, 2015 as OWCP 

failed to offset the portion of her SSA retirement benefits attributable to her federal service. She 

further determined that appellant was at fault in creating the overpayment and that it would be 

recovered by deducting $200.00 per month from continuing compensation. 

On appeal appellant, through her representative, contends that she indicated on the 

EN1032 forms that she was receiving SSA. She believed that OWCP was offsetting the SSA 

amount from her compensation. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.5 Section 8129(a) of FECA provides that, 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 

 5

 5 U.S.C. § 8102. 
4

be made under regulations prescribed by the Secretary of Labor by decreasing later payments to 

which an individual is entitled.6

Section 8116(d) 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 an 

employee received SSA benefits based on federal service, her compensation benefits shall be 

reduced by the amount of SSA benefits attributable to her federal service.7

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 

the SSA benefits paid on the basis of age and attributable to the employee’s federal service.8

 The 

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

follows: Where a claimant had received SSA benefit, OWCP will obtain information from SSA 

regarding the amount of the claimant’s SSA benefits beginning with the date of eligibility to 

FECA benefits. SSA will provide the actual amount of SSA benefits received by the 

claimant/beneficiary. It 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.9

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a temporary aggravation of spinal stenosis 

causally related to factors of her federal employment. It paid her compensation for total 

disability as of September 7, 2002. 

The Board finds that the case is not in posture for decision. SSA, in a form dated 

March 24, 2015, specified the amount that appellant received in monthly retirement benefits with 

and without federal service from July 2007 to December 2014. It indicated that with FERS she 

received a monthly amount ranging from $683.40 effective July 2007 to $804.20 effective 

December 2014. Without FERS, appellant would receive a monthly payment ranging from 

$311.00 effective July 2007 to $365.90 effective December 2014. Based on the March 24, 2015 

form provided by SSA, OWCP determined that she received a $38,168.90 overpayment of 

compensation as it failed to deduct the amount that she received in retirement benefits 

attributable to her federal service from her compensation payments. 

Prior to OWCP’s overpayment determination, SSA submitted another form dated 

January 13, 2016 that provided different amounts for appellant’s monthly SSA rate with and 

without FERS. It indicated that her monthly SSA benefits with FERS ranged from $634.00 

 6 Id. at § 8129(a). 

7 Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002). 

8

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

Chapter 2.1000.11(a)(b) (February 1995). 

9 See L.B., Docket No. 11-2076 (issued August 29, 2012). 
5

effective July 2007 to $1,054.90 effective December 2014, and her monthly SSA rate without 

FERS ranged from $288.50 in July 2007 to $339.40 in December 2014. 

Given the discrepancy in the amounts provided by SSA on two different forms covering 

the same benefit period, OWCP should have further developed the evidence by obtaining 

clarification from SSA as to appellant’s SSA rate with and without any offset from FERS.10 In 

view of the conflicting information, it should also request that SSA verify that she received 

retirement benefits based on her federal employment. Without accurate information from SSA 

advising whether appellant was in receipt of retirement benefits based in part on federal service 

and providing reliable figures of her monthly benefits, the Board is unable to determine whether 

an overpayment exists and the amount of any overpayment. Additionally, appellant maintained 

that beginning in 2011 she received SSA benefits based on her deceased husband’s employment 

rather than her own. 

On remand, OWCP should request that SSA confirm that appellant received SSA 

retirement benefits based in part on her federal service, resolve the conflicting FERS offset 

information provided, and address whether her benefits were her own or from her husband. 

Following any further development as deemed necessary, OWCP shall issue an appropriate 

decision.11 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

received an overpayment of compensation. 

 10 See K.G., Docket No. 16-0553 (issued June 21, 2016). 

11 Based on the Board’s disposition of whether appellant received an overpayment of compensation, the issues of 

fault and recovery are moot. 
6

ORDER 

IT IS HEREBY ORDERED THAT the March 2, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board. 

Issued: December 19, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board