United States Department of Labor

Employees’ Compensation Appeals Board

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A.S., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL AIR 

STATION JACKSONVILLE, Jacksonville, FL, 

Employer

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Docket No. 17-0606

Issued: December 21, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 23, 2017 appellant filed a timely appeal from a September 27, 2016 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 OWCP properly found an overpayment of compensation in 

the amount of $9,367.45 because appellant concurrently received Social Security Administration 

(SSA) benefits for the period November 1, 2014 through May 28, 2016 while receiving FECA 

benefits; (2) whether OWCP properly found appellant at fault and thus not entitled to waiver of 

 

1

5 U.S.C. § 8101 et seq. 

2 The Board notes that appellant submitted evidence with his appeal to the Board. The Board cannot consider this 

evidence as its jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision. 

20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012). 
2

recovery of the overpayment; and (3) whether OWCP properly required recovery of the 

overpayment by deducting $100.00 every 28 days from appellant’s continuing compensation.

On appeal appellant disagrees that he received an overpayment of compensation and that 

he was at fault for OWCP’s errors.3

FACTUAL HISTORY

On November 1, 1999 appellant, then a 50-year-old custodial worker, injured his lower 

back while mopping. The traumatic injury claim (Form CA-1) was accepted for lumbar strain 

and expanded to include aggravation of degenerative disc disease, and major depressive disorder, 

secondary to the employment injury. Appellant stopped work, returned on March 27, 2000, and 

worked until August 15, 2000. He returned to work for a brief period in 2002. Appellant was 

placed on the periodic compensation rolls in January 2003.

By letter dated October 1, 2010, OWCP advised appellant that, as he was nearing age 62,

the minimum age at which an individual is eligible to receive SSA retirement benefits, he was 

being notified that section 8116(d)(2) of FECA (5 U.S.C. § 8116(d)(2)) provided that 

compensation benefits would be reduced if a compensationer began receiving SSA retirement 

benefits based upon his or her age and federal service. OWCP further advised that failure to 

report receipt of such retirement benefits could result in an overpayment of compensation, which 

could be subject to recovery, and advised him to immediately contact his local district office so 

that the process of making any necessary adjustments to his compensation benefits could begin. 

On October 8, 2010 appellant telephoned OWCP and related that he was receiving SSA 

disability benefits, not SSA retirement benefits.4 

EN1032 forms signed by appellant on November 12, 2014 and November 17, 2015, 

indicated that he was receiving no SSA benefits. 

On June 17, 2015 OWCP requested that SSA verify the type of benefits appellant was 

receiving and forwarded a FERS/SSA dual benefits calculation form. SSA returned the form on 

August 1, 2015, which verified that appellant’s SSA disability benefits were converted to 

retirement benefits effective November 2014. SSA indicated that beginning in November 2014 

appellant’s SSA rate with FERS was $1,451.00 and without FERS $964.70. Beginning in 

December 2014, the SSA rate with FERS was $1,475.60 and without FERS $981.00, and 

beginning December 2015 the SSA rate with FERS was $1,475.60 and without FERS $981.00.5 

 

3

In his appeal, appellant also discussed problems with his life insurance. The Board’s jurisdiction is limited to 

reviewing final adverse decisions of OWCP issued under FECA within 180 days of filing an appeal. 20 C.F.R. 

§§ 501.2(c) and 501.3(e); see J.B., Docket No. 09-2191 (issued May 14, 2010). The record before the Board does 

not contain an appealable decision regarding this matter.

4

Following an OWCP inquiry, on July 2, 2012 the Office of Personnel Management (OPM) informed OWCP 

that appellant was not in receipt of OPM retirement benefits. On January 12, 2014 OWCP suspended appellant’s 

wage-loss compensation because he failed to submit a required EN1032 form. Appellant returned the form, and his 

FECA benefits were restored. 

5 On March 31, 2016 OWCP administratively terminated an overpayment of compensation in the amount of 

$49.28 that occurred because of nondeduction of optional life insurance. 
3

OWCP calculated the FERS offset, indicating that for the period November 1 to 30, 2014 

appellant’s monthly offset was $486.30 ($1,450.00 - $964.70) or $448.89 every 28 days (which 

totaled $480.95 offset). Effective December 1, 2014, the monthly offset was $494.60 ($1,475.60 

- $981.00) or $456.55 every 28 days. For the period December 1, 2014 to May 28, 2016 (a 

period of 545 days), the total offset was $8,886.49, which yielded an overpayment of $9,367.45

($480.95 + $8,886.49).

In correspondence dated June 30, 2016, OWCP notified appellant that, based on 

information provided by SSA regarding the amount of his SSA benefit attributable to federal 

service, his FECA benefits would be adjusted, effective May 29, 2016. 

On June 30, 2016 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $9,367.45 had been created. It explained that the overpayment 

occurred because a portion of appellant’s SSA benefits, for the period November 1, 2014 through

May 28, 2016 was based on credits earned while working in the Federal Government, and that 

this portion of his SSA benefit was a prohibited dual benefit. OWCP found appellant at fault 

because he accepted a payment that he knew or reasonably should have known was incorrect. 

Appellant was provided an overpayment action request and an overpayment recovery 

questionnaire (Form OWCP-20). He was informed of the actions he could take and was allotted 

30 days to respond. 

In correspondence received by OWCP on July 19, 2016, appellant disagreed with the 

reduction of his FECA compensation by $465.55 per payment. On August 3, 2016 appellant also 

noted his disagreement with the overpayment of $9,367.45, maintaining that his SSA benefit was 

for disability. He asked for further explanation of the overpayment. Appellant did not return the 

overpayment action request or the overpayment questionnaire.

By letter dated August 11, 2016, a senior OWCP claims examiner informed appellant that 

she would like to conduct a conference call to discuss his concerns and asked that he call her 

within 20 days of the date of the letter to arrange a convenient time for the conference. 

Appellant telephoned OWCP on August 24 and 29, 2016 but was unable to reach the claims 

examiner. The claims examiner called appellant on September 15, 2016 and left a voice mail 

message for him to return her call. She again called appellant on September 21, 2016 and left a 

voice mail message for him to call her at 10:00 a.m. the next day. Appellant called at 11:09 a.m. 

She returned the call at 1:54 p.m. and left a voice mail message for him to call back by 3:00 p.m.

that day. On September 27, 2016 appellant called at 6:56 a.m. and was advised that the claims 

examiner would return the call. The claims examiner called appellant, who again was not 

available. She left a message that she would be issuing a final overpayment decision. 

By decision dated September 27, 2016, OWCP finalized the preliminary overpayment 

determination, finding an overpayment of compensation in the amount of $9,367.45. It

explained that the overpayment occurred because a portion of appellant’s SSA benefits from 

November 1, 2014 through May 28, 2016 was based on credits earned while working in the 

Federal Government, and that this portion of his SSA benefit was a prohibited dual benefit. 

OWCP noted that appellant turned 66 years of age in November 2014, and that SSA furnished 

information regarding his concurrent SSA benefit with and without FERS. It found appellant at 

fault because he accepted a payment that he knew or reasonably should have known were 
4

incorrect. Repayment in the amount of $100.00 was to be deducted each 28 days from 

appellant’s 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 states that FECA benefits have to 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 

Section 404.409 of SSA regulations provide that for individuals born from 1943 to 1954 

full retirement age is 66 years.10 

ANALYSIS -- ISSUE 1

The record supports that appellant received FECA wage-loss compensation beginning in 

2003, and that he received SSA retirement benefits beginning in November 2014.11 The portion 

of the SSA benefits appellant earned as a federal employee was part of his FERS retirement 

package, and the receipt of benefits concurrently under FECA and federal retirement benefits is a 

prohibited dual benefit.12 

SSA notified OWCP of the applicable SSA compensation rates for appellant and dates of 

monthly SSA compensation beginning in November 2014. This included rates with and without 

FERS offset. 

Appellant’s FECA compensation was not offset by his SSA retirement benefits until 

May 29, 2016. Based on the rates provided by SSA, by decision dated September 27, 2016, 

OWCP properly calculated a prohibited dual benefit that appellant received from November 1, 

 

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). 

10 20 C.F.R. § 404.409.

11 The record indicates that appellant turned 66 in November 2014. 

12 Supra note 9.
5

2014 through May 28, 2016.

13

 This yielded an overpayment of compensation in the amount of 

$9,367.45. The record includes an overpayment worksheet explaining the overpayment 

calculation. 

The Board has reviewed OWCP’s calculations of the dual benefit appellant received for 

the period November 1, 2014 through May 28, 2016 and finds that he received a dual benefit 

totaling $9,367.45 for this period, thus creating an overpayment of compensation in that 

amount.14

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment of 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.”

15

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).”

16

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.17

 

13 Supra note 8.

14 See I.H., Docket No. 15-1578 (issued November 19, 2015).

15 5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

16 20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

17 20 C.F.R. 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).
6

ANALYSIS -- ISSUE 2

The Board finds that appellant was at fault in the creation of the overpayment. OWCP 

based the fault finding under the third standard described, that appellant accepted a payment 

which he knew or should have known to be incorrect. In EN1032 forms signed by appellant on 

November 12, 2014 and November 17, 2015, he indicated that he was not receiving SSA benefits 

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

he was in receipt of SSA retirement benefits effective November 1, 2014. 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 he was receiving SSA and FECA benefits 

simultaneously. He failed to report that he was receiving SSA benefits on the EN1032 forms he 

signed on November 11, 2014 and November 17, 2015. Based on the clear language of the 

forms which he knowingly signed, appellant failed to provide information he knew or should 

have known to be material and accepted payment he knew was incorrect. The Board thus finds 

that appellant was at fault in the creation of an overpayment of compensation for the period at 

issue.

18

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.19

ANALYSIS -- ISSUE 3

In the June 30, 2016 preliminary determination, OWCP provided appellant an 

overpayment action request and overpayment recovery questionnaire and informed him of the 

actions he should take, including the submission of financial information. Appellant did not 

submit a completed questionnaire or other financial information that OWCP requested prior to 

 

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

19 20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).
7

the issuance of the final September 27, 2016 overpayment decision. Although he disagreed with 

the overpayment finding in July 2016 correspondence, he did not submit an overpayment action 

request, a completed overpayment recovery questionnaire, or any financial information at any 

time. Prior to finalizing the overpayment decision, an OWCP claims examiner left several 

telephone messages for appellant, to which he did not timely respond. 

The overpaid individual is responsible for providing information about income, expenses 

and assets as specified by OWCP.20 When an individual fails to provide requested financial 

information, OWCP should follow minimum collection guidelines designed to collect the debt 

promptly and in full.21 As appellant did not submit any financial information to OWCP as 

requested, the Board finds OWCP properly directed recovery at a rate of $100.00 each 28 days 

from his continuing compensation.22

 

20 20 C.F.R. § 10.438.

21 Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Initial Overpayment 

Actions, Debt Management, Chapter 6.200.4.c (2) (June 2009).

22 See supra note 14.
8

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment 

in the amount of $9,367.45, that he was at fault and not eligible for waiver of recovery and that 

OWCP properly required recovery of the overpayment by deducting $100.00 every 28 days from 

his continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.23

Issued: December 21, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

23 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.