United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Omaha, NE, Employer 

__________________________________________ 

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Docket No. 16-0469 

Issued: May 6, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 14, 2016 appellant filed a timely appeal from a December 31, 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 an overpayment of $15,308.02 for the 

period July 1, 2012 through July 25, 2015 because OWCP failed to reduce his benefits by the 

Federal Employees’ Retirement System (FERS) offset amount; (2) whether OWCP properly 

denied waiver of the overpayment; and (3) whether it properly determined that it would recover 

the overpayment by deducting $425.22 from continuing compensation payments. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on May 31, 2000 appellant, then a 49-year-old mail carrier, 

sustained acute back strain, an aggravation of lumbar degenerative disc disease, and major 

depressive disorder in the performance of duty. He stopped work on June 1, 2000 and returned 

to part-time employment on August 14, 2000. Appellant stopped work again on December 15, 

2000 and did not return.2 OWCP paid him compensation for total disability.3 

On June 5, 2012 OWCP noted that appellant was almost 62 years old and advised him 

that FECA required a reduction in benefits if he received retirement benefits from the Social 

Security Administration (SSA) attributable to federal service. It advised him to contact OWCP 

promptly if he received SSA retirement benefits to avoid an overpayment of compensation. 

SSA, in a form dated July 15, 2015, provided the amount that appellant received in 

retirement benefits with FERS and also the hypothetical amount that he would have received 

without FERS. Including federal employment, he was entitled to a monthly payment rate of 

$1,207.10 effective July 2012, $1,227.60 effective December 2012, $1,246.00 effective 

December 2013, and $1,267.10 effective December 2014. Without counting appellant’s federal 

earnings, he was entitled to a monthly payment rate of $803.30 effective July 2012, $816.90 

effective December 2012, $829.10 effective December 2013, and $843.10 effective 

December 2014. 

By letter dated July 29, 2015, OWCP advised appellant that it was adjusting his 

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

service. It informed him that the portion of the SSA benefits earned as a federal employee was 

part of the FERS retirement package and that FECA did not allow the simultaneous receipt of 

workers’ compensation and federal retirement benefits. 

On July 31, 2015 OWCP calculated the overpayment by determining the difference 

between appellant’s SSA amount with and without FERS for each period. It then multiplied the 

daily offset amount by the number of days in each period to find a total overpayment of 

$15,308.02. 

In a telephone call dated August 3, 2005, appellant advised that SSA was not paying him 

the correct amount. He indicated that he was receiving around $800.00 per month from SSA. 

On August 14, 2015 OWCP notified appellant of its preliminary determination that he 

received an overpayment of $15,308.02 as he had received compensation benefits for the period 

July 1, 2012 through July 25, 2015 that had not been reduced by the portion of his SSA benefits 

earned based on his federal service. It determined that he began receiving regular retirement 

 2

 In a decision dated April 15, 2003, OWCP terminated appellant’s compensation benefits after finding that the 

weight of the evidence established that he had no further disability due to his May 31, 2000 employment injury. On 

February 9, 2004, an OWCP hearing representative reversed the April 15, 2003 decision. 

3

 By decision dated March 23, 2005, OWCP found that appellant received an overpayment of $3,070.75 because 

it had not withheld appropriate premiums for health and optional life insurance from April 11, 2003 through 

March 1, 2004. 
3

benefits under SSA on July 1, 2012. OWCP found that the portion of the SSA benefits he 

received due to his federal service was part of FERS retirement package and thus a prohibited 

dual payment. It further made a preliminary determination that appellant was without fault in 

creating the overpayment. OWCP requested that he complete the enclosed overpayment 

recovery questionnaire and submit supporting financial documents. Additionally, it notified 

appellant that, within 30 days of the date of the letter, he could request a telephone conference, a 

final decision based on the written evidence, or a prerecoupment hearing. 

Appellant telephoned OWCP on August 27, 2015 and contended that he was receiving 

compensation from SSA without the FERS rate. On August 28, 2015 OWCP provided him with 

its overpayment calculations. 

On August 28, 2015 appellant challenged the existence of an overpayment. He submitted 

an April 21, 2012 notification from SSA advising him that it had reduced his disability payments 

as he was receiving compensation from OWCP, but that effective July 2012 he could receive 

retirement benefits of $910.00. The form further indicated that he could elect disability benefits 

again at age 65, when it no longer considered workers’ compensation benefits. Appellant elected 

to receive retirement benefits beginning July 2012. 

In a notice of award dated July 16, 2012, SSA advised appellant that beginning July 2012 

he would receive $910.00 a month in SSA retirement benefits. In 2013 it informed him that he 

would receive $925.00 per month. In 2014 SSA notified him that he would receive a monthly 

benefit payment of $939.00 and in 2015 a monthly benefit payment of $955.00. 

Appellant also submitted Form SSA-1099 benefits statements from 2012 to 2014 

indicating that SSA had offset his workers’ compensation benefits from his SSA benefits. In 

2012 SSA paid appellant a total of $20,078.00 in benefits, which included payment by check or 

direct deposit of $6,440.00 and an offset of workers’ compensation of $13,638.00, in 2013 SSA 

paid him a total of $24,738.00 in benefits, or $11,100.00 by check or direct deposit and 

$13,638.00 in workers’ compensation offset, and in 2014 it paid him $24,906.00, or $11,268.00 

by check or direct deposit and $13,628.00 in workers’ compensation offset. 

By letter dated August 28, 2015, appellant reiterated his contention that he was not 

receiving SSA benefits based on his federal service as part of FERS. He maintained that the 

benefits he received were a result of private employment. Appellant submitted evidence 

showing deposits into his checking account by SSA. 

In a decision dated December 31, 2015, OWCP determined that appellant received an 

overpayment of $15,308.02 from July 1 through 25, 2012 because it had not offset his 

compensation to reflect SSA benefits attributable to his federal service. It found that he was 

without fault in creating the overpayment, but denied waiver as he had not submitted any 

financial information. OWCP noted that documents provided by appellant supported that SSA 

continued to offset his retirement benefits for workers’ compensation. It found, however, that an 

overpayment existed as it continued to pay him workers’ compensation benefits without the 

appropriate offset. OWCP determined that it would recover the overpayment by deducting 

$425.22 from appellant’s continuing compensation payments. 
4

On appeal appellant contends that SSA was paying him an amount that was not based on 

his federal service as evidenced by the deposits that he provided. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 of FECA4

 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 

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

which an individual is entitled.6

Section 816(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 compensation benefits shall be 

reduced by the amount of SSA benefits attributable to his or 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 the 

SSA on 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 acute back strain, an aggravation of 

degenerative disc disease of the lumbar spine, and major depressive disorder due to a May 31, 

2000 employment injury. Appellant stopped work on June 1, 2000, returned to work part time 

on August 14, 2000, and stopped work again on December 15, 2000. OWCP paid him 

compensation for total disability. 

 4

 5 U.S.C. § 8101 et seq. 

5 Id. at § 8102. 

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(e) (January 1997); 

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

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

In a notification dated April 21, 2012, SSA advised appellant that it was currently 

reducing his disability compensation payments as he was receiving workers’ compensation but 

that as of July 2012 he could elect to receive retirement benefits of $910.00 per month. 

Appellant indicated on the form that he wanted to obtain retirement benefits beginning 

July 2012. 

SSA informed appellant on July 16, 2012 that he would receive $910.00 per month in 

retirement benefits. It notified him that he would receive $925.00 per month beginning 

January 3, 2013, $939.00 per month beginning January 3, 2014, and $955.00 per month 

beginning January 2, 2015. 

In a form dated July 15, 2015, SSA specified the amount that appellant received in 

monthly retirement benefits with federal service under FERS and without federal services. It 

indicated that with FERS he received $1,207.10 as of July 2012, $1,227.60 as of 

December 2012, $1,246.00 as of December 2013, and $1,267.10 as of December 2014. Without 

counting appellant’s federal earnings, he was entitled to a rate of $803.30 beginning July 2012, 

$816.90 beginning December 2012, $829.10 beginning December 2013, and $843.10 beginning 

December 2014. 

OWCP determined that appellant received an overpayment because OWCP had failed to 

deduct the amount that he received in retirement benefits attributable to his federal service from 

his compensation payments. It noted that SSA continues to offset workers’ compensation 

benefits even after it begins paying disability retirement, but found that SSA’s offset of his 

compensation did not relieve OWCP of its obligation to offset his retirement due to federal 

service from his workers’ compensation benefits. 

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

received an overpayment of compensation. SSA informed OWCP that with his federal service 

under FERS he received $1,207.10 in July 2012, $1,227.60 in December 2012, $1,246.00 in 

December 2013, and $1,267.10 in December 2014. SSA advised appellant, however, that his 

benefit payment would be $910.00 in 2012, $925.00 in 2013, $939.00 in 2014, and $955.00 in 

2014. Appellant argued that he did not receive retirement benefits from SSA based on his 

federal service. He submitted evidence showing a discrepancy between the amount SSA 

indicated that he would receive in retirement with FERS benefits and the amount that SSA 

informed him that he would receive in benefits. 

Given the discrepancy between the amount SSA informed OWCP that appellant was 

receiving with FERS and the amount SSA told him that he would receive, OWCP should have 

further developed the evidence by obtaining information from SSA and the Office of Personnel 

Management (OPM) regarding appellant’s retirement benefits and confirming his SSA rate with 

and without any offset required based on his federal civilian service. Accordingly, the Board 

will remand the case for OWCP to reconsider whether appellant received an overpayment of 

compensation.10

 10 Given the Board’s disposition of fact of overpayment, it is premature to address the issues of waiver and 

recovery of the overpayment. 
6

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT December 31, 2015 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: May 6, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board