United States Department of Labor

Employees’ Compensation Appeals Board

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A.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Greensboro, NC, Employer

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Docket No. 17-1459

Issued: December 22, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 16, 2017 appellant filed a timely appeal from a May 31, 2017 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 a $1,948.76 overpayment of compensation 

for the period June 1, 2010 through April 1, 2017; (2) whether OWCP abused its discretion in 

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

recovery of the overpayment by deducting $50.00 every 28 days from appellant’s continuing 

compensation benefits. 

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On January 17, 1991 appellant, then a 42-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 11, 1991, he sustained a lumbar injury when he fell 

while delivering mail. By decision dated September 11, 1992, OWCP accepted the claim for 

lumbar sprain and herniated disc at L5-S1. It subsequently expanded acceptance of the claim to 

include post laminectomy syndrome, lumbosacral radiculopathy, lumbar sprain, and 

intervertebral disc disorder with myelopathy L5-S1. 

Appellant stopped work on January 13, 1991 and returned on February 5, 1991, after

receiving continuation of pay. He stopped work again and underwent an L5-S1 discectomy on 

May 5, 1992. Appellant was released to full duty on November 10, 1992 and received wage-loss 

compensation for intermittent time off through April 15, 1993. 

Appellant stopped work on July 30, 1997 when he sustained a recurrence of disability. 

He did not return to work and received wage-loss compensation on the daily compensation rolls. 

On December 9, 1997 appellant underwent surgical decompression and spinal fusion. By letter 

dated February 23, 1998, OWCP informed him that he would receive wage-loss compensation 

on the periodic rolls every 28 days. 

By letter dated May 14, 1998, the employing establishment reported that appellant’s 

Federal Employees Health Benefits (FEHB) program was being transferred based on his 

retirement effective April 25, 1998. 

In a May 20, 1998 Federal Employees’ Group Life Insurance (FEGLI) Program form, 

appellant’s retirement was certified under the Civil Service Retirement System (CSRS) Act/ 

Federal Employees Retirement System (FERS) Act. The date of retirement was noted as 

April 25, 1998 with a May 14, 1998 notice of conversion. The effective date of continuous 

coverage under the FEGLI program was noted as December 2, 1978 when appellant’s coverage 

and employment began. 

By letter dated July 6, 1998, the Office of Personnel Management (OPM) reported that 

appellant’s civil service annuity payments were terminated effective November 30, 1997. This 

letter also related that no overpayment existed. 

By letter dated November 24, 1998, OWCP informed appellant that under FECA, he was 

receiving a gross weekly compensation of $531.68 and gross 28-day compensation of $2,126.72. 

It informed him that he could also be entitled to receive benefits provided by OPM under the 

CSRS or FERS. OWCP provided him with an election benefits (Form CA-1105) and requested 

that he select either FECA benefits or retirement benefits as he was not entitled to receive FECA 

and CSRS/FERS benefits concurrently, except for a schedule award. 

In a November 30, 1998 CA-1105 form, appellant elected to receive FECA benefits in 

preference to any benefits either under CSRS or FERS. 

By letter dated April 1, 2010, OWCP notified appellant that he was approaching his 62nd

birthday, the minimum age at which an individual is eligible to receive Social Security 

Administration (SSA) retirement benefits. It explained that if he had been approved for SSA 
3

retirement benefits, or was currently receiving them, to contact the district Office immediately in 

order to make the necessary adjustments to his compensation benefits. 

In a March 22, 2017 FERS/SSA dual benefits calculations worksheet, SSA reported that 

appellant was under FERS from January 11, 1991 through the present. It provided his SSA rate 

with FERS and SSA rate without FERS from June 2010 through December 2016. 

By letter dated April 13, 2017, OWCP informed appellant that his current monthly 

benefit amount was $817.30, but that SSA had determined that he would only be entitled to 

$784.40 as his federal service increased his monthly Social Security payment by $32.90. It noted 

that this difference of $32.90 as the portion of Social Security benefits attributed to federal 

service and was the amount that must be offset against his compensation benefits. OWCP 

explained that since Social Security benefits were paid monthly (12 payments per year), and 

compensation benefits were paid every 28 days (13 payments per year), the monthly offset 

amount of $32.90 would be adjusted to a 28-day payment cycle of $30.37. Accordingly, the 

offset of appellant’s compensation payments in the amount of $30.37 would begin with his 

payment dated April 29, 2017 and his new net compensation would be $2,646.73. 

By notice dated April 18, 2017, OWCP made a preliminary determination that an 

overpayment of compensation in the amount of $1,948.76 was created for the period June 1, 

2010 through April 1, 2017 as appellant was paid dual compensation under FECA and SSA

FERS retirement without an appropriate offset. It found that he was without fault in the creation 

of the overpayment. An OWCP memorandum noted that appellant received compensation 

payments for temporary total disability on the periodic rolls beginning June 16, 2002. SSA 

indicated that he was concurrently receiving FERS retirement benefits and SSA benefits from 

June 1, 2010 through April 1, 2017. OWCP noted that appellant was on the periodic rolls from 

June 1, 2010 through April 1, 2017 and explained that the portion of the his Social Security 

benefits that he earned as a federal employee, as part of his FERS retirement, and the receipt of 

benefits under FECA he received concurrently for this period was a prohibited dual benefit. As 

compensation payments were not offset by the amount of Social Security benefits he received, 

attributable to his federal service, resulted in an overpayment of compensation. 

A fiscal pay rate memorandum was provided which showed the SSA monthly 

compensation amounts with FERS and without FERS from June 1, 2010 through April 1, 2017.

Appellant was informed of his options if he wished to challenge the fact of overpayment or to 

request waiver of recovery of the overpayment. If he wished a waiver of recovery of the 

overpayment, he was advised to submit financial information and a completed overpayment 

recovery questionnaire (OWCP-20) within 30 days.

In an April 24, 2017 CA-110 form telephone note, OWCP claims examiner noted that 

appellant called regarding his overpayment and reported that he retired under CSRS and not

FERS. The claims examiner reported that he would need to contact the employing establishment 

which reported him as a FERS employee and provided him the contact information. 

In an April 28, 2017 CA-110 form telephone note, appellant called after speaking with 

OPM and reported that he did not have any of his federal service under FERS as all of his 

employment was under CSRS. 
4

By decision dated May 31, 2017, OWCP found that there was an overpayment of 

compensation in the amount of $1,948.76 for the period June 1, 2010 through April 1, 2017 as 

appellant was paid dual compensation under FECA and SSA without an appropriate offset for 

FERS. It found that he was without fault in the creation of the overpayment because he had 

notified OWCP on his Form CA-1032 that he was concurrently receiving SSA and FECA 

benefits. OWCP determined that the overpayment was not subject to waiver of recovery because 

appellant did not respond to the preliminary overpayment determination. It found that he could 

repay the overpayment by submitting $50.00 monthly based on the enclosed payment schedule. 

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 his duty.2 Section 8129(a) of FECA provides, 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.”

3

Section 8116(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.4 If an employee 

receives SSA benefits based on federal service, his or her compensation benefits shall be reduced 

by the amount of SSA benefits attributable to his or her federal service.

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 

SSA benefits paid on the basis of age and attributable to the employee’s federal service.5 The 

offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as 

follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA 

on the amount of the claimant’s 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 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 

 

2

5 U.S.C. § 8102(a). 

3

Id. at § 8129(a).

4

Id. at § 8116(d). See N.R., Docket No. 12-1853 (issued June 10, 2013). 

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995); 

Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); OWCP does not require an election 

between FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See 

also R.C., Docket No. 09-2131 (issued April 2, 2010).
5

obtain the amount of compensation payable.6 It does not require an election between FECA and 

SSA benefits, except when the SSA benefits are attributable to the employee’s federal service.7

ANALYSIS

The Board finds that the case is not in posture for decision.8 With respect to the fact and 

amount of this claimed overpayment, OWCP based its overpayment determination on appellant

having reportedly received SSA FERS age-related benefits for his federal service. Relying on 

information provided by the SSA, it found that he had been receiving a dual benefit dating back 

to June 1, 2010. Notwithstanding the information SSA provided on March 22, 2017, the record 

calls into question OWCP’s determination that he was covered under FERS or received a dual 

benefit.9 

The offset provision of 5 U.S.C. § 8116(d)(2) applies to Social Security old-age benefits 

that are attributable to federal service covered by FERS.10 However, the record suggests that 

appellant’s federal civilian service would have been covered under FERS’ predecessor, the 

CSRS. Based on the evidence of record, he began working for the Federal Government well in 

advance of the January 1, 1987 effective date of FERS.11 The record establishes that his 

employment began on December 2, 1978. There is no evidence of record that appellant paid 

Social Security taxes OASDI as a federal civilian employee under FERS. Furthermore, there is 

no evidence that he either elected or was eligible to convert from CSRS to FERS.12 

While SSA provided OWCP information concerning the amount of appellant’s agerelated benefits purportedly attributable to his FERS-based civilian service, given his pre-1987 

employment history, OWCP should have further inquired regarding the accuracy of this 

information. Appellant called OWCP following the preliminary overpayment determination on 

April 24, 2017 and notified the claims examiner that his retirement was under CSRS and not 

FERS. He called again on April 28, 2017 reporting that he had spoken with OPM who 

confirmed that his retirement was under CSRS. OWCP’s procedures provide that, if a possible 

dual benefit exists, OWCP should review the file carefully if the claimant is 62 years or older 

and is under FERS, because a FERS offset may be required.13 The procedures further note that 

 

6

FECA Bulletin No. 97-0009 (issued February 3, 1997). Retirement benefits paid by OPM or SSA can be paid 

concurrently with a schedule award without any deduction from FECA benefits.

7

Supra note 5 at Chapter 2.1000.11(b) (February 1995).

8

J.J., Docket No. 14-0785 (issued September 3, 2014).

9 A.P., Docket No. 12-0122 (issued May 7, 2012).

10 Under CSRS, federal employees were generally exempt from paying Social Security taxes; Old-age, Survivors 

and Disability Insurance (OASDI). 5 U.S.C. §§ 8331-8351.

11 5 U.S.C. § 8402(b)(2)(B).

12 See id. at § 8402.

13 See supra note 5, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter 2.812.9c (May 2012); FECA 

Procedure Manual, id. at Dual Benefits, Chapter 2.1000.4e (January 1997).
6

an offset is not required for CSRS benefits and if OWCP cannot determine what retirement 

system the claimant is under, “the [claims examiner] should send a letter to ... OPM to request 

information.”

14

 OWCP did not seek clarification from OPM.

15

 As noted, OWCP’s procedures

places the responsibility on the claims examiner to carefully review the file in situations where a 

dual benefit might possibly occur, including the responsibility of contacting OPM to determine 

the applicable civil service retirement system.16

The Board finds that, in light of appellant’s pre-1987 federal employment history, the 

evidence does not establish that he was covered under FERS or received a dual benefit.17 OWCP 

did not thoroughly investigate whether appellant was covered under either CSRS, CSRS 

Interim/Offset,18 or FERS. The Board further notes that, while SSA provided data regarding 

various effective rates beginning June 1, 2010, it did not provide a complete payment history 

substantiating his receipt of SSA age-related benefits during the purported overpayment period 

of June 1, 2010 through April 1, 2017 nor did it explain why his FERS coverage began on 

January 11, 1991. Due to these deficiencies, the Board finds that the case is not in posture for 

decision.19

OWCP’s determination that appellant received a dual benefit and overpayment of 

compensation will be set aside. The case is remanded for further development.20 Following 

such further development, after it has supplemented the case, OWCP shall issue a de novo

decision.

21

 

CONCLUSION

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

received an overpayment of compensation.

 

14 Id.

15 FECA Procedure Manual, supra note 5.

16 Id. 

17 See G.W., Docket No. 09-1211 (issued January 6, 2010) (the Board reversed OWCP’s finding of overpayment 

where the employment history indicated that the former employee was not likely covered under FERS and SSA had 

provided conflicting information regarding whether a FERS/SSA offset was required).

18 CSRS Interim/Offset was a precursor to FERS that required contributions to both CSRS and OASDI. It 

generally applied to certain new hires or former CSRS-covered employees who had been separated from service for 

at least one year and rehired after December 31, 1983.

19 F.F., Docket No. 16-0063 (issued June 24, 2016).

20 J.M., Docket No. 12-0954 (issued November 26, 2012).

21 As the case is not in posture regarding the fact of overpayment, the issues of waiver and recovery are moot.
7

ORDER

IT IS HEREBY ORDERED THAT the May 31, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision of the Board.

Issued: December 22, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board