United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.F., Appellant 

and 

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Rosedale, NY, Employer 

__________________________________________ 

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Docket No. 16-0063 

Issued: June 24, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 14, 2015 appellant filed a timely appeal from an April 27, 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 this case. 

ISSUES 

The issues are: (1) whether appellant received a $5,168.92 overpayment of compensation 

for the period August 1, 2011 to November 15, 2014, for which he was at fault; (2) whether 

appellant was at fault in the creation of the overpayment; and (3) whether OWCP properly 

recovered the overpayment by withholding $430.00 from appellant’s continuing compensation 

payments. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on July 17, 1997 appellant, then a 51-year-old telecommunications 

specialist, sustained cervical and lumbar sprains in a work-related motor vehicle accident. 

Appellant returned to light-duty work on August 25, 1997, stopped work on July 13, 1998, and 

did not return. 

Appellant received compensation on the daily rolls beginning on July 14, 1998.2

Appellant began federal employment in September 1968 as a radar instructor. Appellant 

worked as an air traffic controller from September 1973 to August 1981. 

On September 25, 1998 OWCP notified appellant that he would receive compensation for 

temporary total disability on the periodic rolls beginning September 13, 1998. It informed him 

of his obligation to report “any retirement income, disability income, or compensation benefits 

from any [f]ederal agency.” Appellant signed the notice on October 4, 1998. He executed a 

direct deposit authorization on October 6, 1998.3 Appellant completed affidavits of earnings and 

employment (Form EN1032) annually from June 1999 through September 2010. 

On September 10, 2011, August 23, 2012, and August 17, 2013 appellant signed a 

Form EN1032 indicating that he had not received Social Security Administration (SSA) benefits 

as part of an annuity for federal service in the previous 15 months. 

On September 24, 2013 OWCP requested information from SSA regarding appellant’s 

SSA age-related benefits. It forwarded a form entitled Federal Employees’ Retirement System 

(FERS) SSA Dual Benefits Calculation, which requested the effective date of his social security 

benefits, as well as separate calculations of SSA rate with FERS and without FERS. SSA 

provided the requested information on November 27, 2013, noting the pay rates for the following 

periods with and without FERS: August through November 2011, $807.10 with FERS and 

$682.70 without; December 2011 through November 2012, $836.10 with FERS and $707.20 

without; and December 2012 through November 2013, $850.30 with FERS and $719.20 without. 

As of December 2013, the rates were $863.00 with FERS and $729.80 without. 

On August 24, 2014 appellant signed a Form EN1032 indicating that he had not received 

SSA benefits as part of an annuity for federal service in the previous 15 months. 

In a November 6, 2014 memorandum, OWCP calculated that, based on the fiscal 

information provided by SSA on November 27, 2013, a $5,168.92 overpayment of compensation 

was created in appellant’s case for the period August 1, 2011 to November 15, 2014.4

 2

 OWCP approved an anterior C5-6 discectomy, performed on October 29, 1998. 

3

 On July 28, 2003 appellant signed a form electing to continue his postretirement basic life insurance coverage, 

with no reduction in benefits, under the Federal Employees’ Group Life Insurance (FEGLI) as a compensationer. 

He elected three multiples of Option B, and one unit of Option C. 

4

 OWCP calculated the overpayment as follows: $500.33 from August 1 to November 30, 2011; $1,555.30 from 

December 1, 2011 to November 20, 2012; $1,577.52 from December 1, 2012 to November 30, 2013; $1,535.77 

from December 1, 2013 to November 15, 2014. 
3

By notice dated November 12, 2014, OWCP advised appellant of its preliminary 

determination that he had received a $5,168.92 overpayment of compensation because he 

received FECA benefits simultaneously with FERS retirement payments from August 1, 2011 

through November 15, 2014. It provided a calculation of the overpayment, noting that appellant 

was at fault in its creation as he failed to report his SSA benefits received as part of his 

retirement annuity under FERS on EN1032 forms signed on September 10, 2011, August 23, 

2012, August 17, 2013, and August 24, 2014. OWCP requested that appellant provide financial 

information within 30 days or indicate if he contested that an overpayment occurred. 

Appellant responded by letter received on December 30, 2014, contending that there was 

no overpayment of compensation because his retirement coverage was under Civil Service 

Retirement System (CSRS), not FERS. He attached May 27, 1997 and January 4, 1998 

personnel action forms (Form SF-50) documenting his enrollment in the CSRS offset system. 

Appellant requested a telephonic prerecoupment hearing, but noted that he did not request waiver 

as he believed there was no overpayment. 

In a March 25, 2015 letter, OWCP advised appellant to submit the requested financial 

information to hold the requested telephonic prerecoupment hearing. Appellant did not respond. 

By decision dated April 27, 2015, OWCP finalized that appellant had received an 

overpayment of compensation in the amount of $5,168.92 for the period August 1, 2011 to 

November 15, 2014 as he received FERS retirement benefits simultaneously with FECA 

benefits. It found that he was at fault in the creation of the overpayment. OWCP noted that, as 

appellant did not submit financial information as requested, it directed recovery of the 

overpayment by deducting $430.00 every 28 days from his continuing compensation payments. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA5

 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.6

 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 

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

which an individual is entitled.7

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, his or her compensation benefits shall 

be reduced by the amount of SSA benefits attributable to his or her federal service.8 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 SSA benefits 

 5

 5 U.S.C. § 8101 et seq. 

6 Id. at § 8102. 

7 Id. at § 8129(a). 

8 Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002). 
4

paid on the basis of age and attributable to the employee’s federal service.9

 Section 8116(d)(2) 

provides that the receipt of SSA benefits “does not affect the right of the employee to 

compensation for scheduled disabilities specified by section 8107(c) of this title.”10 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained cervical and lumbar sprains in a work-related 

motor vehicle accident. Appellant stopped work on July 13, 1998. His May 27, 1997 and 

January 4, 1998 personnel action forms (Form SF-50) documented his enrollment in the CSRS 

offset retirement plan. 

The Board finds that appellant received an overpayment of compensation from August 1, 

2011 to November 15, 2014 because he received compensation from OWCP and SSA benefits 

without an appropriate offset. The offset provision of section 8116(d)(2) applies to SSA benefits 

that are attributable to federal service. Appellant paid social security and Medicare taxes (FICA) 

as a federal civilian employee under the CSRS Interim/Offset system, a precursor to FERS that 

required contributions to both CSRS and for social security. It generally applied to certain new 

hires or former CSRS-covered employees who had been separated from service for at least one 

year and rehired after December 31, 1983.11 Appellant received age-based SSA benefits after 

retirement as a result of his contributions to SSA under the CSRS interim system. As he 

received SSA benefits based in part of his federal service concurrently with disability 

compensation from OWCP without an appropriate offset, he received an overpayment of 

compensation. 

The Board further finds, however, that the case is not in posture for decision regarding 

the amount or period of the overpayment. SSA provided OWCP with information regarding 

appellant’s rate of SSA benefits beginning August 1, 2011 both with and without FERS. As 

discussed, however, he was not covered by FERS, but was instead under the CSRS offset 

retirement plan. It is not clear from the record whether the rates under the CSRS offset plan are 

the same as the rates in the FERS plan. Given appellant’s pre-1987 employment history, OWCP 

should have further inquired regarding the accuracy of this information. However, it did not 

seek clarification from OPM. Therefore, the case will be remanded for further development. 

On remand, OWCP should obtain additional information from SSA and OPM regarding 

appellant’s retirement system and his SSA rate with and without any offset required based on his 

federal civilian service.12 It will then recalculate the period and amount of the overpayment. 

Following this and any other development deemed necessary, OWCP shall issue a de novo

decision in the case. 

 9

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

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

10 5 U.S.C. § 8116(d)(2). 

11 See A.P., Docket No. 12-122 (issued May 7, 2012). 

12 J.M., Docket No. 12-0954 (issued November 26, 2012). 
5

On appeal appellant contends that he was not a FERS employee, but covered under CSRS 

as of the date of injury. As set forth above, the case will be remanded for additional 

development regarding appellant’s retirement program and any benefits received. 

ISSUES 2 & 3 

 As the case is not in posture regarding the fact of overpayment, the issues of fault and 

recovery are moot. 

CONCLUSION 

The Board finds that the case is not in posture for a decision. 

ORDER 

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

Compensation Programs dated April 27, 2015 is set aside, and the case remanded for further 

development consistent with this decision and order. 

Issued: June 24, 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