United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bell, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0467 

Issued: May 23, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

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 13, 2016 appellant, through counsel, filed a timely appeal from a 

September 30, 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 determined that appellant received an 

overpayment of compensation in the amount of $3,143.53; and (2) whether OWCP properly 

determined that appellant was at fault in the creation of the overpayment of compensation, 

thereby precluding waiver of recovery of the overpayment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 23, 1992 appellant, then a 33-year-old mail equipment handler, filed a 

traumatic injury claim (Form CA-1) alleging that he sustained injury on September 22, 1992 

when he was hit in his right leg by a forklift at work. OWCP accepted that he sustained a right 

knee sprain, right leg contusion, and lumbar sprain. Appellant received disability compensation 

on the daily roll beginning April 14, 2009. He received disability on the periodic rolls beginning 

June 7, 2009.2 

The record contains a form, signed on April 22, 2014, in which appellant elected to 

receive retirement benefits from the Office of Personnel Management (OPM), under the Civil 

Service Retirement System (CSRS) or Federal Employees Retirement System (FERS), instead of 

FECA benefits. On the form, appellant certified that he understood that he was not entitled to 

receive FECA benefits and CSRS/FERS benefits concurrently (except for a schedule award). 

In a July 17, 2014 notice, OWCP advised appellant of its preliminary determination that 

he received an overpayment of compensation in the amount of $3,143.53 because he received a 

prohibited dual payment of FECA disability compensation and retirement benefits from OPM for 

the period May 1 to 31, 2014. It also made a preliminary determination that he was at fault in the 

creation of the overpayment because he knew or should have known that he could not receive 

such dual benefits. OWCP advised appellant that he could submit evidence challenging the fact, 

amount, or finding of fault, and request waiver of recovery of the overpayment. It informed him 

that he could submit additional evidence in writing or at a prerecoupment hearing, but that a 

prerecoupment hearing must be requested within 30 days of the date of the written notice of 

overpayment. OWCP requested that appellant complete and return the enclosed financial 

information questionnaire (Form OWCP-20) within 30 days even if he was not requesting waiver 

of recovery of the overpayment. 

Appellant requested a telephone prerecoupment hearing with an OWCP hearing 

representative on the issues of fact, amount, and fault.3

 During the hearing held on March 24, 

2015, counsel argued that it was not clear from the record whether appellant actually received 

retirement benefits from OPM for the period May 1 to 31, 2014. 

By decision dated June 15, 2015, an OWCP hearing representative determined that the 

case should be remanded to OWCP to determine whether appellant received retirement benefits 

from OPM for the period of the claimed overpayment, May 1 to 31, 2014. He found that the 

case record did not contain clear evidence regarding the period appellant had received retirement 

benefits from OPM and determined that, on remand, OWCP should attempt to obtain such 

evidence. 

On remand, OWCP requested that OPM indicate when appellant began receiving 

retirement benefits from OPM. The memorandum of a September 22, 2015 telephone 

 2

 In late 2010, appellant filed two occupational disease claims (Forms CA-2) under separate file numbers for a 

skin disorder and for carpal tunnel syndrome. Neither claim was accepted by OWCP. 

3

 Appellant asserted that he timely notified OWCP of his receipt of retirement benefits from OPM. 
3

conversation indicated that an OPM official reported that on June 10, 2014 he received 

retirement benefits from OPM for the period May 1 to 31, 2014. In a letter dated September 28, 

2015, an OPM official advised OWCP that appellant received retirement benefits from OPM 

beginning May 1, 2014 and continuing.4

In a September 30, 2015 decision, OWCP determined that appellant had received an 

overpayment of compensation in the amount of $3,143.53. It found that he was at fault in the 

creation of the overpayment, thereby precluding waiver of recovery of the overpayment. OWCP 

determined that appellant knew or should have known that he could not receive the dual benefits 

that created the overpayment. 

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.5

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

compensation benefits.6 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.7 Section 10.421(a) of OWCP’s implementing regulations provide 

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

retirement or survivor annuity.8 The beneficiary must elect the benefit that he or she wishes to 

receive.9

ANALYSIS -- ISSUE 1 

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

of compensation in the amount of $3,143.53. 

The record contains documents showing that appellant elected OPM retirement benefits 

beginning effective May 1, 2014. As noted above, FECA and OWCP regulations provide that a 

 4

 The evidence of record reveals that appellant received FECA disability compensation for the period May 1 

to 31, 2014 in the amount of $3,143.53. 

5

 5 U.S.C. § 8102(a). 

6 Id. at § 8116. 

7 Id. at § 8116(a). 

8

 20 C.F.R. § 10.421(a). 

9 Id.
4

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

survivor annuity.10

As appellant elected retirement benefits from OPM for a period already covered by 

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

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

beginning May 1, 2014 and continuing through May 31, 2014, created a prohibited dual benefit 

under section 8116 of FECA. The record supports that appellant received wage-loss 

compensation in the amount of $3,143.53 for the period May 1 to 31, 2014. The Board, 

therefore, affirms OWCP’s September 30, 2015 decision on the issue of fact and amount of 

overpayment.11

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(a) of FECA provides that where an overpayment of compensation has been 

made “because of an error of fact or law,” adjustment shall be made by decreasing later 

payments to which an individual is entitled.12 The only exception to this requirement is a 

situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery 

by the United States may not be made when incorrect payment has been made to an individual 

who is without fault and when adjustment or recovery would defeat the purpose of this 

subchapter or would be against equity and good conscience.”13 No waiver of payment is 

possible if the claimant is not “without fault” in helping to create the overpayment.14

In determining whether an individual is not “without fault” or alternatively “at fault” in 

the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations 

provides in relevant part: 

“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; or 

(2) Failed to provide information which he or she knew or should have 

known to be material; or 

 10 See supra notes 7 and 8. 

11 5 U.S.C. § 8116; see N.P., Docket No. 15-1799 (issued January 11, 2016). 

12 Id. at § 8129(a). 

13 Id. at § 8129(b). 

14 L.J., 59 ECAB 264 (2007). 
5

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

incorrect....”15

Section 10.433(b) of OWCP’s regulations provides: 

“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.”16

ANALYSIS -- ISSUE 2 

The Board finds that OWCP properly determined that appellant was at fault in the 

creation of the overpayment of compensation under the third prong of 20 C.F.R. § 10.433(a)17

and that, therefore, the overpayment was not subject to waiver. 

On April 22, 2014 appellant signed a form in which he elected to receive retirement 

benefits from OPM instead of FECA disability compensation. On the form, appellant certified 

that he understood that he was not entitled to receive FECA benefits and CSRS/FERS benefits 

concurrently (except for a schedule award). He, therefore, was advised that he could not receive 

dual benefits comprised of FECA disability compensation and retirement benefits from OPM. 

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 of fault. Appellant had been advised that receipt of retirement benefits and FECA 

disability compensation for the same period was a prohibited dual benefit. He nonetheless chose 

to receive both disability retirement benefits and FECA benefits for the period May 1 to 31, 2014 

when on June 10, 2014 he accepted a retirement check from OPM which covered the period 

May 1 to 31, 2014. OWCP properly found appellant at fault in the creation of an overpayment of 

compensation in the amount of $3,143.53 as he accepted a prohibited dual payment which he 

knew or should have known he could not receive.18 Because appellant was at fault in the 

creation of the overpayment of compensation, the overpayment was not subject to waiver of 

recovery.19 

 15 20 C.F.R. § 10.433(a). 

16 Id. at § 10.433(b). 

17 See supra note 15. 

18 See N.P., supra note 11. 

19 See supra notes 13 and 14. 
6

CONCLUSION 

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

of compensation in the amount of $3,143.53. The Board further finds that OWCP properly 

determined that he was at fault in the creation of the overpayment of compensation and that, 

therefore, the overpayment was not subject to waiver. 

ORDER 

IT IS HEREBY ORDERED THAT the September 30, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 23, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board