United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.P., Appellant 

and 

U.S. POSTAL SERVICE, CANAL STREET 

STATION, New York, NY, Employer 

__________________________________________ 

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Docket No. 15-1799 

Issued: January 11, 2016 

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant 

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 August 31, 2015 appellant, through counsel, filed a timely appeal from an August 4, 

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.2

ISSUES 

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount $11,317.50 for the period May 20, 2013 through February 7, 2015 because she elected to 

receive retirement benefits from the Office of Personnel Management (OPM) while receiving 

FECA benefits; and (2) whether OWCP properly found her at fault and thus not entitled to 

waiver. 

 1

 5 U.S.C. §§ 8101-8193. 

2

 The Board notes that appellant has a second appeal pending before the Board, Docket No. 15-1580, that will be 

adjudicated separately. 
2

On appeal counsel asserts that because appellant was in a serious motor vehicle accident 

in Florida on June 17, 2015 in which she suffered serious injuries and was hospitalized for 

approximately one month, he was unable to timely request a prerecoupment hearing on 

appellant’s behalf, and OWCP prematurely issued its final overpayment decision. 

FACTUAL HISTORY 

OWCP accepted that on March 28, 1996 appellant, then a 31-year-old letter carrier, 

incurred a right hand sprain, right and left knee sprains, and lumbosacral sprain. She stopped 

work on April 29, 1996 and was placed on the periodic compensation rolls. 

In June 2003 appellant accepted a modified position for six hours a day. She continued 

to receive two hours of daily FECA compensation. Appellant continued the part-time modified 

position until December 21, 2010 until she incurred a second employment injury and received 

additional compensation under that claim.3

 

While appellant was in receipt of wage-loss compensation, she signed annual 

certifications acknowledging the need to immediately report changes in income from federallyassisted disability or benefit programs. This included a February 5, 2013 OWCP letter, which 

noted that other federal benefits could affect her FECA benefits and advised her that she must 

report any income or change in income from federally-assisted disability or benefit programs. 

On September 3, 2014 counsel informed OWCP that appellant was awarded disability 

retirement by the Office of Personnel Management (OPM) and that she wished to elect to receive 

Federal Employee Retirement Service (FERS) benefits, effective May 20, 2013. In 

correspondence dated October 9, 2014, OWCP notified appellant that her current four-week 

compensation was $542.00. Appellant was informed that receipt of retirement benefits and 

FECA compensation for the same period was a prohibited dual benefit. OWCP forwarded an 

election form to appellant with a copy to counsel. On January 8, 2015 appellant submitted the 

election form to OWCP in which she elected FERS retirement benefits, effective May 20, 2013. 

On January 7, 2015 counsel forwarded the election form to OPM, asked that appellant’s 

retirement be processed, and that OWCP be reimbursed for back pay. 

On February 5, 2015 appellant’s partial wage-loss compensation for the March 28, 1996 

claim was terminated, effective February 7, 2015. On February 5, 2015 OWCP also informed 

OPM that, in lieu of FECA compensation, she had elected to receive FERS retirement benefits 

effective May 20, 2013. It asked that OPM commence monthly annuity payments effective 

May 20, 2013 and reimburse OWCP $11,317.50 for FECA compensation benefits which had 

been paid from May 20, 2013 to February 7, 2015. There is no evidence in the record to 

establish that OPM reimbursed OWCP. 

On June 26, 2015 OWCP issued a preliminary finding that an overpayment of 

compensation in the amount of $11,317.50 had been created. It explained that appellant had 

elected FERS retirement benefits retroactive to May 20, 2013, but had continued to receive 

 3 Id. Appellant’s wage-loss compensation and medical benefits under this claim were terminated on 

May 20, 2013. 
3

FECA compensation for that same period May 20, 2013 through February 7, 2015. OWCP 

found appellant at fault because she knew or should have known that she was in receipt of 

compensation to which she was not entitled. The preliminary decision provided an explanation 

of the calculation of the overpayment. Appellant was provided an overpayment action request 

and an overpayment questionnaire (Form CA-20). She was informed of the actions she could 

take and was afforded 30 days to respond. A copy of the preliminary determination was 

forwarded to counsel. 

The record includes a computer print-out indicating that appellant received $11,317.50 in 

compensation for the period May 20, 2013 to February 7, 2015. As she had elected FERS 

retirement benefits for the same period, OWCP found that the entire amount was an 

overpayment. 

In correspondence dated July 28, 2015, counsel disagreed with the June 26, 2015 

preliminary determination. He requested a stay of collection to allow appellant an opportunity to 

complete an overpayment questionnaire, reporting that she had been in a serious motor vehicle 

accident in Florida on June 17, 2015 with multiple injuries and had just been discharged. 

Counsel maintained that OPM should have reimbursed OWCP, and disagreed that an 

overpayment occurred and that appellant was with fault. 

By decision dated August 4, 2015, OWCP finalized the preliminary finding that appellant 

was at fault in the creation of an overpayment of $11,317.50 for the period May 20, 2013 

through February 7, 2015 because she accepted dual benefits that she knew or should have 

known was incorrect. 

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.4 Section 8116 of FECA defines the limitations on the right to receive 

compensation benefits.5 Section 8116(a) provides that, while an employee is receiving workers’ 

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the Armed Forces, including benefits administered by the Department of Veterans 

Affairs, unless such benefits are payable for the same injury or the same death being 

compensated for under FECA.6 Section 10.421(a) of OWCP’s implementing regulations provide 

that a beneficiary may not receive wage-loss compensation concurrently with a federal 

 4

 5 U.S.C. § 8102(a). 

5 Id. at § 8116. 

6 Id. at § 8116(a). 
4

retirement or survivor annuity.7

 The beneficiary must elect the benefit that he or she wishes to 

receive.8

ANALYSIS -- ISSUE 1 

Counsel notified OWCP on September 3, 2014 that appellant had been awarded OPM 

disability retirement benefits. In an election form received by OWCP on January 8, 2015, 

appellant elected OPM retirement benefits, retroactive to May 20, 2013. As noted above, FECA 

and OWCP regulations provide that a beneficiary may not receive wage-loss compensation 

concurrently with a federal retirement or survivor annuity.9 The record indicates that appellant 

received FECA wage-loss compensation totaling $11,317.50 for the period May 20, 2013 until 

her compensation was terminated on February 7, 2015. 

As appellant elected FERS retirement benefits retroactive to a period already covered by 

FECA compensation payments, the Board finds that she did in fact receive an overpayment of 

compensation for the entire amount. Her election of retirement annuity benefits from OPM, 

retroactive to May 20, 2013, created a prohibited dual benefit under section 8116 of FECA. The 

record supports that appellant received wage-loss compensation in the amount of $11,317.50 for 

the period May 20, 2013 until her compensation was terminated on February 7, 2015. The Board 

will therefore affirm OWCP’s August 4, 2015 decision on the issue of fact and amount of 

overpayment.10

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 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 

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 

 7

 20 C.F.R. § 10.421(a). 

8 Id. 

9 Id. at § 10.421(a). 

10 5 U.S.C. § 8116; see B.G., Docket No. 14-2002 (issued August 13, 2015). 

11 Supra notes 6 and 7. 
5

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

ANALYSIS -- ISSUE 2 

OWCP found appellant at fault in creating the overpayment under the third standard, that 

she accepted a payment she knew or should have known to be incorrect. 

The Board finds appellant at fault under this standard. Counsel noted on September 3, 

2014 that appellant had been awarded FERS disability retirement benefits. In January 2015 she 

elected to receive those retirement benefits retroactive to May 20, 2013. Because appellant had 

already received FECA compensation for the period May 20, 2013 through February 7, 2015, 

when her wage-loss compensation was terminated, her election of retirement benefits beginning 

May 20, 2013 was, in effect, an election to receive a prohibited dual benefit under section 8116 

of FECA. 

Whether an individual is at fault with respect to the creation of an overpayment depends 

on the circumstances of the overpayment. The circumstances in this case support OWCP’s 

finding. OWCP notified appellant in October 2014 that receipt of retirement benefits and FECA 

compensation for the same period was a prohibited dual benefit. Appellant nonetheless chose to 

receive both FERS disability retirement benefits and FECA benefits for the period May 20, 2013 

through February 7, 2015. The Board will therefore affirm OWCP’s August 4, 2015 decision as 

appellant knew or should have known she would be receiving a prohibited dual payment.14

As to counsel’s assertion on appeal that appellant was in an automobile accident in 

June 2015 and could not timely respond to the preliminary overpayment determination, he 

submitted no evidence to substantiate the accident to support his claim of extenuating 

circumstances. Furthermore, counsel received a copy of the June 26, 2015 preliminary 

determination and did not timely respond. 

As appellant was at fault in creating the overpayment, she is not eligible for waiver. With 

respect to recovery of the overpayment in compensation, the Board’s jurisdiction is limited to 

reviewing those cases where OWCP seeks recovery from continuing compensation benefits 

 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). 

14 See B.G., supra note 10. 
6

under FECA.15 As appellant is no longer receiving wage-loss compensation, the Board does not 

have jurisdiction with respect to the recovery of the overpayment under the Debt Collection 

Act.16

CONCLUSION 

The Board finds that appellant received an overpayment of compensation in the amount 

$11,317.50 for the period May 20, 2013 through February 7, 2015 because she elected to receive 

retirement benefits from OPM while receiving FECA benefits. The Board also finds that OWCP 

properly found appellant at fault and thus not entitled to waiver. 

ORDER 

IT IS HEREBY ORDERED THAT the August 4, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 11, 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 

 15 Cheryl Thomas, 55 ECAB 610 (2004). 

16 Id.