United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.G., Appellant 

and 

DEPARTMENT OF COMMERCE, U.S. 

CENSUS BUREAU, Wellington, FL, Employer 

__________________________________________ 

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Docket No. 16-0553 

Issued: June 21, 2016 

Appearances: Case Submitted on the Record

Kim Gabriel, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 3, 2016 appellant, through counsel, timely appealed an October 22, 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 appellant’s recurrence claim.2

ISSUES 

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $10,636.63 for the period June 1, 2011 through July 25, 2015; (2); whether OWCP 

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

deducted $75.00 every 28 days from appellant’s continuing compensation payments. 

                                                       1

 5 U.S.C. § 8101 et seq. 

2

 The record on appeal contains evidence received after OWCP issued its October 22, 2015 decision. The Board 

is precluded from considering evidence that was not in the case record at the time OWCP issued its final decision. 

20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

Appellant, a 66-year-old former supervisory field representative, was involved in a workrelated motor vehicle accident on December 2, 1994. She has not returned to work since her 

accident.3 Appellant’s accepted conditions include concussion, left wrist contusion, left thumb 

sprain, left elbow sprain, chest contusion, multiple lower limb contusions, multiple crushing 

injuries, bilateral knee blunt trauma, bilateral knee strain, right knee meniscus tear, left ankle 

strain, cervical, thoracic and lumbar strains, jaw subluxation, right shoulder tendinitis 

(consequential injury), and left ankle closed fracture of the lateral malleolus. She has been 

receiving FECA wage-loss compensation benefits since January 21, 1995. 

Appellant was born in May 1949. When she turned 62 years of age in 2011, she was 

eligible to receive age-related social security retirement benefits. The record indicates that she 

was covered under the Federal Employees Retirement System (FERS) and was subject to Federal 

Insurance Contributions Act (FICA) withholding.4

By letter dated April 1, 2011, OWCP advised appellant of the possibility of a prohibited 

dual benefit as a result of receiving FECA wage-loss benefits and FERS-based social security 

retirement benefits. It explained that her FECA benefits would have to be reduced by the 

amount of any social security retirement benefits attributable to her federal service. OWCP 

further advised appellant to immediately contact her local district office if and when she was 

approved for social security retirement benefits. Approximately, two years later, appellant 

advised OWCP that she was receiving social security benefits. However, she believed that her 

benefits were based on her private sector employment.5

 

On June 6, 2014 OWCP contacted the Social Security Administration (SSA) inquiring 

about appellant’s age-related SSA retirement benefits beginning on or after May 28, 2011. On 

July 31, 2014 an SSA representative, advised OWCP that appellant was eligible for SSA agerelated retirement benefits beginning June 1, 2011.6

 The representative provided a breakdown of 

appellant’s monthly SSA benefits that included contributions from her federal service (w/ 

FERS), as well as a monthly benefit that excluded her FERS-based contributions (w/o FERS). 

Beginning June 2011, appellant’s total monthly SSA benefit was $841.10, and the corresponding 

monthly amount excluding her FERS-based contributions was $720.20. The representative also 

provided additional calculations for subsequent periods beginning December 2011 

($871.30/$746.00), December 2012 ($886.10/$758.70), and December 2013 ($899.40/$770.00). 

Based on the information provided by SSA, appellant’s FERS-based contributions accounted for 

                                                       3

 Appellant was separated from federal service effective October 1, 2001. 

4

 A January 20, 1996 notification of personnel action (Standard Form 50-B) identified appellant’s retirement plan 

as “FERS & FICA,” with a December 8, 1983 service computation date. 

5

 Appellant submitted a Form CA-1032 dated May 10, 2013, which acknowledged receipt of Social Security 

benefits. However, her previous year’s Form CA-1032 (May 17, 2012) denied receipt of any Social Security 

benefits. 

6

 The SSA representative noted that appellant was entitled to disability prior to June 2011, and reentitled to 

disability as of May 2014. 
3

approximately $126.00 of her total monthly SSA benefits. At the time, OWCP did not take any 

action to offset her wage-loss compensation based on this information. 

On May 28, 2015 OWCP submitted a “Re[-]computation” request to SSA regarding the 

possibility of a dual benefit. 

On July 20, 2015 another SSA representative advised OWCP that appellant was eligible 

to receive age-related retirement benefits from June 2011 through April 2014. This 

representative indicated that she was entitled to SSA disability from October 2005 through 

May 2011 and from May 2014 through April 2015, and during those periods, a FERS offset did 

not apply. SSA further noted that appellant’s eligibility for SSA age-related retirement benefits 

resumed in May 2015 and provided calculations showing her total SSA monthly retirement 

benefits and corresponding monthly benefits excluding her FERS-based contributions. Although 

the latest full SSA monthly figures for June 2011 through December 2013 were consistent with 

information previously provided by SSA, the 2011-13 monthly figures excluding appellant’s 

FERS-based contributions differed. According to this representative, her monthly retirement 

benefits with/without FERS were as follows: June 2011 -- $841.10/$584.40; December 2011 -- 

$871.30/$605.30; December 2012 -- $886.10/$615.60; December 2013 -- $899.40/$624.80; and 

May 2015 -- $1,385.60/$942.40. Based on this latest data, the difference between appellant’s 

monthly SSA retirement benefits with/without FERS-based contributions ranged from $256.70 

in June 2011 to $443.20 in May 2015.7

 

OWCP subsequently advised appellant that, effective July 26, 2015, her 28-day wageloss benefits were offset based on the corresponding amount of SSA age-related retirement 

benefits attributable to her federal service. The new net compensation payment was to be 

$1,358.51. 

On August 18, 2015 OWCP issued a preliminary overpayment determination in the 

amount of $10,636.63 for the period June 1, 2011 through July 25, 2015. It explained that the 

overpayment was a result of appellant having received FECA wage-loss compensation and 

FERS-based social security retirement benefits for the same period, which was prohibited. 

Additionally, OWCP advised that appellant was not at fault in creating the overpayment. 

On August 28, 2015 appellant requested a decision based on the written record. She 

believed that SSA may have included some of her non-FERS, private income that she earned 

between 1991-94 when she worked for both the Federal Government and a nonfederal school 

system. Appellant also submitted an overpayment recovery questionnaire (OWCP-20) and 

supporting documentation regarding her monthly income and expenses. She reported total 

monthly income of $2,638.51, which included both SSA and FECA benefits. Appellant’s 

reported monthly expenses also totaled $2,638.51.8

 Lastly, her reported assets, including cash, 

checking, and savings accounts totaled $261.00. 

                                                       7

 OWCP did not request, nor has SSA provided, a complete payment history of the SSA age-related benefits 

appellant reportedly received beginning June 2011. 

8

 The monthly income and expenses matched exactly because appellant only reported $0.32 per month for food. 
4

By decision dated October 22, 2015, OWCP finalized its preliminary determination 

regarding the fact and amount of the overpayment, as well as its finding that appellant was not at 

fault. Regarding her request for waiver of recovery, it determined that her monthly income 

exceeded her monthly expenses by $91.91, and the surplus was sufficient to warrant recovery of 

the overpayment.9

 OWCP also imposed a 28-day repayment of $75.00 to be deducted for 

appellant’s continuing compensation payments. 

LEGAL PRECEDENT -- ISSUE 1 

A FECA beneficiary may not receive wage-loss compensation concurrently with a 

federal retirement or survivor annuity.10 To avoid payment of a dual benefit, FECA wage-loss 

compensation benefits shall be reduced by the amount of Social Security Act benefits 

attributable to the employee’s federal (FERS-based) service.11 However, an offset is not 

required where the employee-beneficiary is covered under the Civil Service Retirement System 

and her SSA age-related benefits are attributable to private sector employment.12

ANALYSIS -- ISSUE 1 

The Board finds that this case is not in posture for decision with respect to the amount of 

the overpayment. The current record establishes that appellant was covered under FERS. The 

record also establishes that she received age-related social security retirement benefits. As 

appellant received a dual benefit, fact of overpayment is established.13 

However, the portion of her monthly SSA benefits attributable to her FERS-based 

contributions is unclear. The current record includes two different sets of figures from SSA 

regarding appellant’s FERS offset. The reason for this discrepancy is unclear from the record. It 

is also unclear why OWCP relied on the July 20, 2015 figures, which resulted in a significantly 

larger overpayment than would have been the case if it had utilized the July 31, 2014 figures. 

Because of the unexplained discrepancy, the Board is not in a position to determine whether 

OWCP’s finding regarding the amount of overpayment ($10,636.63) is accurate. Accordingly, 

the case shall be remanded to OWCP for further development regarding the appropriate FERS 

offset. On remand, OWCP should seek clarification from SSA regarding the conflicting FERS 

offset information provided. It should also obtain a complete payment history from SSA 

regarding the age-related benefits appellant reportedly received beginning in June 2011.14

                                                       9

 OWCP adjusted appellant’s income upward by converting her 28-day FECA benefits ($1,358.51) to a monthly 

figure ($1,471.72). 

10 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a). 

11 Id. at § 8116(d)(2); Id. at § 10.421(d). 

12 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter 

2.812.9c (May 2012); and Dual Benefits, Chapter 2.1000.4e(2) (January 1997). 

13 Supra note 10. 

14 In light of the disposition of issue 1, the Board finds issues 2 and 3 are premature. 
5

After OWCP has developed the case record consistent with the Board’s opinion regarding 

appropriate FERS offset, and any necessary further development, a de novo decision shall be 

issued. 

CONCLUSION 

The Board finds fact of overpayment, but that the case is not in posture for decision, 

regarding the amount of overpayment and other remaining issues. 

ORDER 

IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside. The case is remanded for 

further action consistent with this decision. 

Issued: June 21, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board