United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.A., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL EMERGENCY MANAGEMENT 

AGENCY, Biloxi, MS, Employer 

__________________________________________ 

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Docket No. 15-75 

Issued: March 9, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 14, 2014 appellant, through his attorney, filed a timely appeal from a 

September 10, 2014 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 to review the merits of this case. 

ISSUES 

The issues are: (1) whether appellant received a $233,110.23 overpayment of 

compensation; and (2) whether he was at fault in creating the overpayment, thereby rendering 

him ineligible for consideration of waiver. 

FACTUAL HISTORY 

On April 6, 2007 appellant, a 58-year-old National Flood Insurance Program specialist 

(mitigation), sustained a traumatic injury in the performance of duty when he was involved in a 

 1

 5 U.S.C. § 8101 et seq.
2

car accident while in the performance of duty. OWCP accepted his claim for right rotator cuff 

sprain, right ankle deltoid ligament sprain, and left lateral meniscus tear. 

Appellant received compensation for temporary total disability on the periodic rolls. 

When OWCP placed him on the periodic rolls, it notified him in a letter dated September 19, 

2007 that he was not permitted to receive workers’ compensation benefits concurrently with 

retirement benefits: 

“You must report any retirement income, disability income, or compensation 

benefits from any [f]ederal agency. This is because a recipient of compensation 

benefits under the [F]ederal Employees’ Compensation Act is not permitted to 

receive benefits under certain other [f]ederal programs, including the Civil 

Service [R]etirement [P]rogram.” 

On the Form EN1032 he completed on July 8, 2008, appellant indicated that he had 

received a regular retirement check during the past 15 months. He disclosed this information 

each year thereafter. 

In 2013 appellant informed OWCP that he received regular retirement benefits from the 

Department of the Army. He explained that he was never in the military, but worked as a 

firefighter and was now receiving regular retirement benefits. The Office of Personnel 

Management (OPM) confirmed that appellant was in receipt of regular monthly retirement 

benefits since 2003 for his civilian service with the Department of the Army. 

OWCP made a preliminary determination on December 10, 2013 that appellant received 

an overpayment of compensation in the amount of $233,110.23, which represented all the wageloss compensation he had received since the date of injury. It found that he received retirement 

benefits concurrently with workers’ compensation benefits, in violation of 5 U.S.C. § 8116. 

OWCP also found that appellant was at fault in creating the overpayment because he was aware 

or reasonably should have been aware that he could not receive retirement benefits at the same 

time as workers’ compensation under FECA. It noted its September 19, 2007 letter to appellant 

specifically addressing this dual benefit situation. 

Appellant submitted copies of an Application for Waiver of Civilian/Military Annuity 

Reduction. The application advised that, under the Federal Employee Pay Comparability Act, 

the employing establishment was granted authority to waive the civilian/military retirement 

reduction during the first 120 days of a Presidential Disaster Declaration. The application also 

advised: “Waivers must be approved on a case-by-case basis by the Director, Office of Human 

Resources Management.” 

Appellant completed Part A, certifying that he declined employment activation with the 

National Flood Insurance Program unless a waiver for reduction of his civilian/military annuity 

was granted. He further certified his understanding that this waiver would be in effect only for 

the first 120 days from the date of the Presidential Disaster Declaration. Appellant signed the 

application in April 2007. 

An employing establishment manager completed Part B, which indicated that the date of 

the Presidential Disaster Declaration was August 29, 2005. He justified the waiver by explaining 

that the unique skills and abilities of the candidate were needed to support the disaster recovery 
3

effort. The manager certified that the employment of the annuitant “should be made” without a 

penalty to his civilian/military retirement annuity during the first 120 days of the disaster because 

it was critical to the disaster response and recovery mission of the employing establishment. He 

signed the application in April 2007. 

Part C was not completed, signed, or dated by the Director of the Office of Human 

Resources Management. 

During a telephonic hearing before an OWCP hearing representative, appellant’s 

representative argued that OWCP was more at fault for the creation of the overpayment than 

appellant. He also argued that compensation was a replacement for wages, and if the waiver 

meant no reduction in wages, there should be no reduction in compensation. 

In a decision dated September 10, 2014, OWCP hearing representative finalized the 

preliminary findings. She found that appellant had received an overpayment of $233,110.23, as 

he could not collect retirement benefits and compensation for wage loss at the same time. The 

hearing representative noted that the application for waiver did not expressly extend to wage-loss 

compensation, and it applied for only 120 days, after which appellant’s salary would be reduced 

because of his receipt of retirement benefits. 

OWCP hearing representative further found that appellant was at fault in creating the 

overpayment. Notwithstanding his disclosures on EN1032 forms, appellant should have known 

that the compensation payments he received were incorrect because OWCP’s September 2007 

letter clearly explained that he could not receive wage-loss compensation and retirement benefits 

concurrently. As appellant was at fault, he was not eligible for waiver, and as he was no longer 

receiving compensation from OWCP, the hearing representative found the debt due and payable 

in full. 

LEGAL PRECEDENT -- ISSUE 1 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of his duty.2

 While an employee is receiving 

compensation, the employee may not receive salary, pay, or remuneration of any type from the 

United States, except in limited specified instances.3

 Thus, a beneficiary may not receive wageloss compensation concurrently with a federal retirement or survivor annuity. The beneficiary 

must elect the benefit that he wishes to receive, and the election, once made, is revocable.4

When an overpayment has been made to an individual 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.5

 2

 5 U.S.C. § 8102(a). 

3 Id. at § 8116(a). 

4

 20 C.F.R. § 10.421(a). 

5

 5 U.S.C. § 8129(a). 
4

ANALYSIS -- ISSUE 1 

When appellant began receiving compensation for wage loss resulting from his April 6, 

2007 work injury, he was in receipt of federal retirement benefits from his work as a firefighter 

with the Department of the Army. In a letter dated September 19, 2007, OWCP notified him that 

he was not permitted to receive both. By statute, a beneficiary may not receive wage-loss 

compensation concurrently with a federal retirement annuity. 

Appellant submitted an Application for Waiver of Civilian/Military Annuity Reduction; 

however, the application was not approved. The form made clear that waivers must be approved 

on a case-by-case basis by the Director of the Office of Human Resources Management. 

However, Part C, where the Director was to approve or disapprove appellant’s application, was 

left blank. The evidence, therefore, shows only that appellant requested a waiver, not that a 

waiver was granted approved. 

Also, any waiver of the retirement reduction would extend only for the first 120 days 

from the date of the Presidential Disaster Declaration. On each copy of the application that 

appellant submitted, the date of the Presidential Disaster Declaration was August 29, 2005. 

Accordingly, if the waiver were approved, it would have expired long before appellant received 

his first compensation payment in September 2007. 

Further, the evidence appellant submitted to OWCP does not show that the Federal 

Employee Pay Comparability Act grants any authority to OWCP to waive the retirement 

reduction. OWCP is bound by section 8116(a) of FECA. Appellant argues that compensation is 

a replacement for wages, and therefore the authority granted to the employing establishment 

should also be extended to OWCP, but this would bring the two statutes into conflict. FECA 

explicitly prohibits the concurrent receipt of wage-loss compensation and a federal retirement 

annuity, and the Board finds that OWCP has no authority to waive the provisions of the statute. 

In the case of C.M.,

6

 the claimant received compensation benefits for wage loss 

concurrently with retirement benefits from OPM. The Board held that she received dual benefits 

that were prohibited by statute, thereby creating an overpayment: “The clear language of section 

8116(a) of FECA and section 10.421(a) of OWCP’s implementing regulations prohibit the 

receipt of FECA wage-loss benefits and a federal annuity.” 

As appellant received wage-loss compensation concurrently with a federal retirement 

annuity, in violation of section 8116(a) of FECA, the Board finds that he received a prohibited 

dual benefit and an overpayment of compensation. Appellant’s compensation payment history 

confirms that he received $233,110.23 in gross compensation through December 14, 2013. The 

Board will therefore affirm OWCP’s September 10, 2014 decision on the issues of fact and 

amount of overpayment. 

LEGAL PRECEDENT -- ISSUE 2 

OWCP may 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 

 6

 Docket No. 14-696 (issued December 18, 2014). 
5

benefits is responsible for taking all reasonable measures to ensure that payments he received 

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 with respect to creating an 

overpayment: (1) Made an incorrect statement as to a material fact which he knew or should 

have known to be incorrect; or (2) Failed to provide information which he knew or should have 

known to be material; or (3) Accepted a payment which he knew or should have known to be 

incorrect (this provision applies only to the overpaid individual).7

Whether or not OWCP determines that an individual was at fault with respect to the 

creation of an overpayment depends on 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 is being overpaid.8

The fact that OWCP may have erred in making the overpayment does not, by itself, 

relieve the individual who received the overpayment from liability for repayment if the 

individual was also at fault in accepting the overpayment.9

ANALYSIS -- ISSUE 2 

When OWCP placed appellant on the periodic rolls in September 2007, it notified him 

that he was not permitted to receive wage-loss compensation concurrently with a federal 

retirement annuity. As appellant was already in receipt of a federal retirement annuity, he should 

have known that the payments he would soon begin to receive from OWCP were incorrect. 

Appellant argued that he was granted a special waiver to receive both a federal retirement 

annuity and compensation for wage loss. But as discussed above, the evidence does not support 

this assertion. The approval section of the application was left blank and, by its own terms, the 

waiver would have expired long before appellant began to receive wage-loss compensation. The 

application gave no indication that OWCP was granted any authority to waive the provisions of 

FECA. Notwithstanding what he alleges he knew, the Board finds that appellant should have 

known, after receiving OWCP’s September 19, 2007 correspondence, that he could not collect 

his federal retirement annuity and compensation for wage loss concurrently. 

Appellant argued that he truthfully and consistently disclosed that he was in receipt of 

regular retirement checks, and that OWCP was therefore more negligent than he in allowing the 

payments to continue. However, the standard is not one of comparative negligence. The fact 

that OWCP erred in making the payments does not relieve the individual who received the 

overpayment of liability for repayment if the individual was also at fault in accepting the 

overpayment. 

 7

 20 C.F.R. § 10.433(a). 

8 Id. at § 10.433(b). 

9 Id. at § 10.433(a). 
6

The Board finds that appellant was at fault in creating the overpayment on the basis that 

he accepted payments which he knew or should have known to be incorrect. Accordingly, the 

Board will affirm OWCP’s September 10, 2014 decision on the issue of fault. 

The Board’s jurisdiction to review the collection of an overpayment is limited to cases of 

adjustment, where OWCP decreases later payments of compensation to which the individual in 

entitled.10 Because collection of the overpayment in this case cannot be made by adjusting later 

payments -- appellant is no longer receiving wage-loss compensation -- the Board has no 

jurisdiction to review the issue of recovery of the overpayment. 

CONCLUSION 

The Board finds that appellant received a $233,110.23 overpayment of compensation. 

The Board also finds that he was at fault in creating the overpayment and is therefore not eligible 

for consideration of waiver of recovery of the overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the September 10, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 9, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 5 U.S.C. § 8129; Levon H. Knight, 40 ECAB 658 (1989).