United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.H., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, KELLY 

AIR FORCE BASE, San Antonio, TX, Employer 

__________________________________________ 

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Docket No. 15-1578 

Issued: November 19, 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 July 15, 2015 appellant filed a timely appeal from a June 22, 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 $54,416.09 because she concurrently received 

Social Security Administration (SSA) benefits for the period December 1, 2005 to December 13, 

2014 while receiving FECA benefits; (2) whether it properly found her at fault and thus she was 

not entitled to waiver of recovery of the overpayment; and (3) whether OWCP properly required 

repayment of the overpayment by deducting $110.00 every 28 days from appellant’s continuing 

compensation. 

 1

 5 U.S.C. § 8101 et seq. 
2

On appeal appellant asserts that the only additional federal benefits she received was a 

survivor annuity after her husband’s death in November 2009. 

FACTUAL HISTORY 

OWCP accepted that on May 19, 1998 appellant, then a 56-year-old electronic 

technician, sustained contusions and sprain of the right knee, right hip, and a lumbosacral spine 

strain. It adjudicated the claim under file number xxxxxx656. On March 18, 1999 appellant 

sustained left leg and lumbar strains, which were accepted by OWCP. She stopped work that 

day and was placed on the periodic compensation rolls. Appellant retired on disability effective 

July 10, 1999. 

By decision dated May 2, 2000, OWCP reduced appellant’s compensation benefits based 

on her capacity to earn wages as a school secretary. On May 2, 2000 it also denied her claim for 

a fractured right elbow, contusion of the right shoulder, and a mid-left foot sprain. In a July 6, 

2001 decision, an OWCP hearing representative affirmed both May 2, 2000 decisions. 

By letter dated November 26, 2001, OWCP advised that it had been informed that 

appellant was receiving or was entitled to retirement benefits provided by the Office of Personnel 

Management (OPM). It informed her that benefits from both OPM and FECA were not payable 

for the same period, and she would have to elect the benefits she preferred. The correspondence 

continued that appellant could receive benefits from Thrift Savings Plan (TSP) and survivor 

benefits provided by the Social Security Administration (SSA) but that her FECA compensation 

would be reduced by the amount of benefits paid under SSA that were attributable to her federal 

service. On December 3, 2001 appellant elected FECA benefits, effective May 21, 2000.2

 

Appellant completed OWCP EN1032 forms on April 14, 2006, April 14, 2007, April 20, 

2008, and April 2009.3 In each of these reports, she indicated that she was receiving no SSA 

benefits which were part of a federal retirement benefit under the Federal Employees Retirement 

System (FERS). In an unsigned EN1032 dated April 7, 2010 and received by OWCP on 

April 20, 2010, appellant indicated that her husband died on November 24, 2009. She again 

reported no SSA benefits as part of a FERS annuity. On EN1032 forms signed by appellant on 

April 18, 2011, April 14, 2012, and April 15, 2013, she indicated that she was receiving an OPM 

death benefit but no SSA annuity. On an EN1032 form signed on April 16, 2014, appellant 

indicated that she was receiving an OPM death benefit and SSA benefits as part of an annuity for 

federal service. She attached a statement of survivor annuity paid from OPM, stating that this 

was a death benefit. 

In an August 26, 2014 letter to appellant, OWCP noted that she had reached the age of 65 

and it was unclear whether she was receiving retirement under FERS or the Civil Service 

Retirement System (CSRS). Appellant was asked to forward within 14 days a copy of her SSA 

 2

 In July 2010, appellant repaid an overpayment of compensation in the amount of $885.15 that was created 

because she continued to receive augmented compensation through April 10, 2010, after her husband’s death on 

November 24, 2009. 

3

 The date in the EN1032 signed in 2009 does not include a complete date, merely indicating “April 2009.” 
3

award notice, a statement regarding her SSA benefit and, if applicable, submit documentation 

that she was under the CSRS retirement system. The letter concluded that, even if appellant was 

not currently receiving SSA benefits, she must still submit documentation and/or a written 

statement indicating the system under which she was receiving retirement benefits she was 

under. Appellant did not respond to the August 26, 2014 letter. 

In September 2014, OWCP began development of whether appellant was receiving dual 

benefits from FECA and SSA. On November 17, 2014 SSA provided information regarding 

appellant’s SSA retirement benefits beginning May 2005 through December 2014, with and 

without FERS offset.4

 On December 16, 2014 OWCP informed appellant that her FECA 

benefits were being reduced to reflect the contribution to her SSA benefits. FECA compensation 

was reduced effective December 14, 2014. On an EN1032 form dated April 7, 2015, appellant 

indicated she was receiving SSA benefits as part of a federal annuity. 

On May 19, 2015 OWCP issued a preliminary finding that an overpayment of 

compensation in the amount of $54,416.09 had been created. It explained that the overpayment 

occurred because a portion of appellant’s SSA benefits, that she received from May 1, 2005 to 

December 13, 2014, 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 her at fault 

 4 The FERS offset calculation was as follows. For the period May 1 through November 30, 2005, SSA rate with 

FERS was $708.00; SSA rate without was $297.70; the monthly FERS offset was $410.30; and the 28 days FERS 

offset was $378.74, resulting in an overpayment of compensation in the amount of $2,894.64 for the 214-day period. 

For the period December 1, 2005 through November 30, 2006, SSA rate with FERS was $737.00; SSA rate without 

was $427.10; the monthly FERS offset was $427.10; and the 28 days FERS offset was $394.25, resulting in an 

overpayment of compensation in the amount of $5,139.28 for the 365-day period. For the period December 1, 2006 

through November 30, 2007, SSA rate with FERS was $761.30; SSA rate without was $320.10; the monthly FERS 

offset was $441.20; and the 28 days FERS offset was $407.26, resulting in an overpayment of compensation in the 

amount of $5,308.95 for the 365-day period. For the period December 1, 2007 through November 30, 2008, SSA 

rate with FERS was $778.70; SSA rate without was $327.40; the monthly FERS offset was $451.30; and the 28 days 

FERS offset was $416.58, resulting in an overpayment of compensation in the amount of $5,445.36 for the 365-day 

period. For the period December 1, 2008 through November 30, 2009, SSA rate with FERS was $823.90; SSA rate 

without was $346.40; the monthly FERS offset was $477.50; and the 28 days FERS offset was $440.77, resulting in 

an overpayment of compensation in the amount of $5,745.74 for the 365-day period. For the period December 1, 

2009 through November 30, 2010, SSA rate with FERS was $823.90; SSA rate without was $346.40, the monthly 

FERS offset was $477.50; and the 28 days FERS offset was $440.77, resulting in an overpayment of compensation 

in the amount of $5,745.74 for the 365-day period. For the period December 1, 2010 through November 30, 2011, 

SSA rate with FERS was $823.90; SSA rate without was $346.40, the monthly FERS offset was $477.50; and the 28 

days FERS offset was $440.77, resulting in an overpayment of compensation in the amount of $5,745.74 for the 

365-day period. For the period December 1, 2011 through November 30, 2012, SSA rate with FERS was $853.50; 

SSA rate without was $358.80; the monthly FERS offset was $494.70; and the 28 days FERS offset was $456.65, 

resulting in an overpayment of compensation in the amount of $5,969.02 for the 366-day period. For the period 

December 1, 2012 through November 30, 2013, SSA rate with FERS was $868.00; SSA rate without was $364.80; 

the monthly FERS offset was $503.20; and the 28 days FERS offset was $464.49, resulting in an overpayment of 

compensation in the amount of $6,054.99 for the 365-day period. For the period December 1, 2013 through 

November 30, 2014, the SSA rate with FERS was $880.90; SSA rate without was $370.30; the monthly FERS offset 

was $510.60; and the 28 days FERS offset was $471.32, resulting in an overpayment of compensation in the amount 

of $6,144.03 for the 365-day period. For the period December 1 through 13, 2014, SSA rate with FERS was 

$895.90; SSA rate without was $376.50; the monthly FERS offset was $519.40; and the 28 days FERS offset was 

$479.45, resulting in an overpayment of compensation in the amount of $222.60 for the 13-day period. Thus, the 

total overpayment of compensation was $54,416.09. 
4

because beginning on April 14, 2006 and continuing until April 6, 2014, appellant had failed to 

report on EN1032 forms that she was in receipt of SSA benefits. 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 afforded 30 days to respond. An overpayment worksheet indicated that 

the FERS offset for the period May 5, 2005 to December 13, 2014 totaled $54,416.09.5

 

Appellant did not respond to the preliminary overpayment determination and did not 

submit a completed overpayment action request and/or an overpayment questionnaire. 

By decision dated June 22, 2015, OWCP finalized the preliminary overpayment 

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

amount of $54,416.09. The decision further found that she was at fault because she had failed to 

submit information which she knew or should have known to be material. Repayment in the 

amount of $110.00 was to be deducted every 28 days from her continuing compensation. 

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 duty.6

 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.7

 

Section 10.421(d) of the implementing regulations requires that OWCP reduce the 

amount of compensation by the amount of any SSA benefits that are attributable to federal 

service of the employee.8

 FECA Bulletin No. 97-9 explains that FECA benefits would 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 dual benefit.9 

ANALYSIS -- ISSUE 1 

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

in 1999. Appellant’s compensation was reduced on May 2, 2000 based on her capacity to earn 

wages as a school secretary. She began receiving SSA retirement benefits on May 1, 2005. 

 5

 The Board notes that the preliminary determination and the overpayment worksheet noted that the overpayment 

period began December 1, 2005. The calculations provided, however, used May 1, 2005, in accordance with the 

SSA report. 

6

 5 U.S.C. § 8102(a). 

7 Id. at § 8116. 

8

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

9

 FECA Bulletin No. 97-9 (issued February 3, 1997). 
5

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.10 Appellant’s FECA compensation 

was not offset until December 14, 2014. 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 benefits appellant received from May 1, 2005 through December 13, 2014, which yielded 

an overpayment of compensation in the amount of $54,416.09. 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 May 1, 2005 through December 13, 2014 and finds that she received dual benefits 

totaling $54,416.09 as noted in the calculations of the SSA. 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.”11

Section 10.433(a) of OWCP regulations provides 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 

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).”12

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.13

 10 5 U.S.C. § 8116; FECA Bulletin No. 97-9, id.

11 Id. at § 8129; see Linda E. Padilla, 45 ECAB 768 (1994). 

12 20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430. 

13 Id. at 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006). 
6

ANALYSIS -- ISSUE 2 

The Board agrees with OWCP’s determination that appellant was at fault in the creation 

of the overpayment. OWCP based the fault finding under the second standard described, that 

appellant failed to provide information which she knew or should have known to be material. In 

her EN1032 forms signed from April 14, 2006 to April 15, 2013, covering periods from May 1, 

2005 to April 15, 2013, appellant consistently reported that she was not receiving SSA benefits 

as part of an annuity for federal service. This was not an accurate statement as, by SSA records, 

she was in receipt of SSA retirement benefits effective May 1, 2005. The EN1032 forms 

provide: 

“PART D -- OTHER FEDERAL BENEFITS OR PAYMENTS 

* * * 

2. SSA Retirement Benefits. Report any benefits received from the SSA which 

you receive as part of an annuity under the FERS. DO NOT report any benefits 

received from the SSA on account of employment in the private sector. 

a. Do you receive benefits from the SSA as part of an annuity for 

federal service? Yes or No: ____” 

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

simultaneously. Appellant inaccurately failed to report that she was receiving SSA benefits on 

EN1032 forms she completed from 2006 to 2013. Based on the clear language of the forms 

which she signed, she failed to provide information she knew or should have known to be 

material. The Board thus finds that appellant was at fault in the creation of an overpayment for 

this period.14

As to the period from April 15, 2013 to December 13, 2014, appellant reported on 

EN1032 forms in April 2014 and April 2015 that she was receiving SSA benefits as part of a 

federal annuity. However, as early as November 2001, OWCP advised her that it had been 

informed that she was receiving or was entitled to retirement benefits provided by OPM. It 

informed appellant that benefits from both OPM and FECA were not payable for the same 

period, and she would have to elect the benefits which were most advantageous. The 

correspondence continued that she could receive benefits from TSP and survivor benefits 

provided by the SSA, but that her FECA compensation would be reduced by the amount of 

benefits paid under SSA that were attributable to her federal service. Moreover, in its August 26, 

2014 letter, OWCP clearly informed appellant that, as she had attained the age of 65, she needed 

to provide additional information. Appellant was asked to forward a copy of her SSA award 

notice, a statement regarding her SSA benefit and, if applicable, submit documentation that she 

was under the CSRS retirement system. The letter concluded that, even if appellant was not 

currently receiving SSA benefits, she must still submit documentation and/or a written statement 

**her retirement. Appellant did not respond to the August 26, 2014 letter yet she continued to 

receive FECA compensation through December 13, 2014 that was not reduced by the offset. 

 14 V.E., Docket No. 15-340 (issued April 1, 2015). 
7

The Board, therefore, finds appellant at fault in the creation of an overpayment for this 

period under the second standard, that she failed to provide information which she knew or 

should have known to be material.15 Appellant is therefore at fault for the entire period of 

May 1, 2005 through December 13, 2014 and is thus not entitled to waiver of recovery of the 

overpayment.16

LEGAL PRECEDENT -- ISSUE 3 

Section 10.441 of OWCP’s regulations provides 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 hardship.17 

ANALYSIS -- ISSUE 3 

Although OWCP provided an overpayment recovery questionnaire with the May 19, 

2015 preliminary finding, appellant did not submit a completed questionnaire or other financial 

information that OWCP requested prior to the final June 22, 2015 overpayment decision. The 

overpaid individual is responsible for providing information about income, expenses, and assets 

as specified by OWCP.18 When an individual fails to provide requested financial information, 

OWCP should follow minimum collection guidelines designed to collect the debt promptly and 

in full.19 As appellant did not submit any financial information to OWCP as requested, the 

Board finds that there is no evidence in the record to dispute OWCP’s decision to direct recovery 

at a rate of $110.00 each 28 days from her continuing compensation. 

 15 Supra note 11. 

16 Furthermore, even had appellant been found entitled to waiver, because she did not respond to the May 19, 

2015 preliminary overpayment finding, she did not provide a basis on which waiver could be granted. See W.P., 59 

ECAB 514, 2008. 

17 20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006). 

18 Id. at § 10.438. 

19 Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, 

Chapter 6.200.4.c(2) (June 2009). 
8

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 $54,416.09 and that OWCP properly 

required recovery of the overpayment by deducting $110.00 every 28 days from her continuing 

compensation payments.

ORDER 

IT IS HEREBY ORDERED THAT the June 22, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 19, 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