United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 15-0586 

Issued: June 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On January 23, 2015 appellant filed a timely appeal of a January 5, 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 OWCP properly found an overpayment of compensation in 

the amount of $3,366.84 for the period February 1 to March 9, 2013; and (2) whether OWCP 

properly determined that appellant was at fault in creating the overpayment, thereby rendering 

him ineligible for consideration of waiver. 

On appeal appellant argued that he was not in receipt of dual benefits from the Office of 

Personnel Management (OPM) and FECA at the same time. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 8, 2005 appellant, then a 58-year-old manual clerk/mail processor, filed an 

occupational disease claim (Form CA-2) alleging that on October 1, 2004 he first realized that 

his bilateral hand and wrist conditions were employment related. OWCP accepted the claim for 

bilateral radial styloid tenosynovitis, which was expanded to include bilateral thumb 

carpometacarpal joint arthroplasty with flexor ligament reconstruction. It authorized right thumb 

carpometacarpal joint interposition arthroplasty with flexor tendon ligament reconstruction 

surgery, right wrist joint repair surgery, and right transplant forearm tendon surgery, which was 

performed on November 30, 2005. 

By letter dated October 15, 2012, OWCP placed appellant on the periodic rolls for 

temporary total disability. It informed him that he would be paid every four weeks and his 

regular payment would begin for the period October 21 to November 17, 2012. 

When OWCP placed him on the periodic rolls, it notified him 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 

[FECA] is not permitted to receive benefits under certain other [f]ederal programs, 

including the Civil Service [R]etirement [P]rogram.” 

In Form CA-110 notes dated January 30, 2013, appellant telephoned OWCP to provide 

notice of his voluntary retirement from the employing establishment effective January 31, 2013. 

OWCP received a February 26, 2013 Notification of Personnel Action (Form SF-50) 

reflecting that appellant had retired from the employing establishment effective 

January 31, 2013. 

The employing establishment requested that OWCP send appellant an election of benefits 

form to indicate whether he wanted to continue receiving FECA benefits or to receive retirement 

benefits from OPM. 

In a letter dated March 5, 2013, OWCP informed OPM that appellant had elected to 

receive retirement benefits effective January 31, 2013 and noted that a copy of the election form 

was attached.2

 It requested reimbursement from OPM for FECA benefits in the amount of 

$3,366.84 for the period February 1 to March 9, 2013. 

In a July 17, 2013 letter, OPM informed OWCP that it began retirement benefit payments 

to appellant effective February 1, 2013. 

By letter dated May 28, 2014, OWCP advised appellant of a preliminary determination 

that an overpayment of compensation in the amount of $3,366.84 had occurred. It explained that 

he had elected OPM benefits effective January 31, 2013; therefore, the $3,366.84 in 

 2

 The record does not contain a copy of the election form. 
3

compensation paid from February 1 to March 9, 2013 constituted an overpayment. OWCP made 

a preliminary determination that appellant was at fault in creating the overpayment as he knew or 

should have known that he could not receive wage-loss compensation for the same period as 

OPM retirement benefits. 

On May 30, 2014 appellant disagreed with OWCP’s preliminary overpayment 

determination and requested a prerecoupment hearing, which was held on November 3, 2014. 

By decision dated January 5, 2015, an OWCP hearing representative finalized the 

preliminary findings. She found that appellant had received an overpayment of compensation in 

the amount of $3,366.84, as he could not collect retirement benefits and compensation for wage 

loss at the same time. The hearing representative found that he was at fault in the creation of the 

overpayment as he had accepted payments that he knew or should have known were incorrect. 

She explained that appellant should have been reasonably aware that he was not entitled to 

receive compensation from both OWCP and OPM for the same time period. 

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.3 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.4 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 any election, once made, is revocable.5 

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.6 

ANALYSIS -- ISSUE 1 

A review of the record establishes that appellant received wage-loss compensation 

commencing February 1 through March 9, 2013 covering the same period for which he would 

also receive federal retirement benefits. Appellant retired from the employing establishment 

effective January 31, 2013. OPM advised OWCP that appellant’s federal retirement benefits 

became effective February 1, 2013. As noted, an employee cannot receive compensation under 

FECA and retirement pay from OPM for the same period.7 Therefore, an overpayment of 

compensation was created from February 1 to March 9, 2013. 

 3 Supra note 1 at § 8102(a). 

4 Id. at § 8116(a). See Edward W. Spohr, 57 ECAB 287 (2005).

5

 20 C.F.R. § 10.421(a). See Sharon Handy, 57 ECAB 446 (2006).

6

 5 U.S.C. § 8129(a). 

7 Supra note 5. 
4

OWCP calculated that appellant was paid $3,366.84 in wage-loss compensation from 

February 1 to March 9, 2013. On February 9, 2013 appellant received $818.96 for the period 

February 1 to 9, 2013 and on March 9, 2013 he received $2,547.88 for the period February 10 to 

March 9, 2013, resulting in an overpayment of $3,366.84. The Board finds that an overpayment 

of compensation in the amount of $3,366.84 was created for the period February 1 to 

March 9, 2013. 

On appeal appellant argues that his OPM monthly checks did not start until August 1, 

2013 so that he had not actually received prohibited dual benefits from OPM and FECA for the 

same period. OPM informed OWCP in its July 17, 2013 letter that appellant’s retirement 

benefits became effective on February 1, 2013. The relevant date is the effective date, not the 

receipt date. OPM retirement benefits became effective February 1, 2013 despite appellant’s 

argument that he did not actually receive payment for that period until August 1, 2013. The 

Board must therefore find his retirement benefits from OPM commenced February 1, 2013. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(b) of FECA8

 provides: Adjustment or recovery by the United States may 

not be made when an 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.9 

OWCP may consider waiving an overpayment of compensation 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 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 or 

she knew or should have known to be incorrect; (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).10 

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 or she is being overpaid.11

 8 Supra note 1 at § 8129(b). 

9 J.K., Docket No. 08-1761 (issued January 8, 2009); Joan Ross, 57 ECAB 694 (2006); Desiderio Martinez, 55 

ECAB 245 (2004). 

10 20 C.F.R. § 10.433(a). 

11 Id. at § 10.433(b). 
5

ANALYSIS -- ISSUE 2 

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

standard, namely that he accepted a payment to which he knew or should have known to be 

incorrect. The Board finds appellant at fault for accepting wage-loss compensation for a period 

already covered by his election to receive retirement benefits effective February 1, 2013. 

Appellant had been advised that a person who receives compensation benefits under FECA is not 

permitted to receive retirement benefits concurrently with FECA payments. 

Notwithstanding this notice, appellant made an election to receive retirement benefits 

retroactively to February 1, 2013. He had already received FECA benefits for a period after the 

date of election. On February 9, 2013 appellant received $818.96 for the period February 1 to 9, 

2013 and on March 9, 2013 he received $2,547.88 for the period February 10 to March 9, 2013, 

resulting in the overpayment of $3,366.84. He was clearly aware that he could not receive 

compensation for wage loss and OPM benefits for the same period. 

Appellant informed OWCP that he was retiring effective January 31, 2013 and OWCP 

noted by letter to OPM dated March 5, 2013 that appellant had elected OPM benefits. Although 

an actual copy of appellant’s signed election form indicating the date he elected OPM benefits is 

not in the record, OPM has verified that retirement benefits were effective February 1, 2013. 

Appellant made an election, when he elected to receive retirement benefits, to receive a 

prohibited dual benefit under 5 U.S.C. § 8116. His election created an overpayment of 

compensation, and as of the effective date of the commencement of his retirement benefits, he 

knew or should have known that he was not permitted to receive both FECA disability benefits 

and OPM annuity benefits for the same period.12

The Board accordingly affirms OWCP’s decision on the issue of fault. OWCP may 

consider waiving recovery of an overpayment only if the individual to whom it was made was 

not at fault in accepting or creating the overpayment.13 As appellant was at fault in creating the 

overpayment, he is not eligible for waiver. OWCP must therefore recover the debt. 

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

adjustment where OWCP decreases later payments of compensation.14 As appellant is no longer 

receiving compensation benefit payments, the Board lacks jurisdiction to review the issue of 

recovery of the overpayment. 

CONCLUSION 

The Board finds that appellant received an overpayment in the amount of $3,366.84 

because appellant received wage-loss compensation concurrently with OPM retirement benefits 

for the period February 1 through March 9, 2013. The Board further finds that appellant was at 

 12 See B.G., Docket No. 14-2002 (issued August 13, 2015); N.P., Docket No. 15-1799 (issued January 11, 2016). 

13 Supra note 10. 

14 Supra note 1 at 8129; Levon H. Knight, 40 ECAB 658 (1989). 
6

fault in the creation of the overpayment and thus ineligible for consideration of waiver of 

recovery of the overpayment. 

ORDER 

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

Compensation Programs dated January 5, 2015 is affirmed. 

Issued: June 6, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board