United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., claiming as widow of J.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tulsa, OK, Employer 

__________________________________________ 

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Docket No. 17-0560 

Issued: August 23, 2017 

Appearances: Case Submitted on the Record

Gregory Calvert, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 13, 2017 appellant, through counsel, filed a timely appeal from an August 23, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (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 an overpayment of compensation in the 

amount of $75,214.65 for the period November 1, 2013 through May 13, 2016; (2) whether 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

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

deducted $605.00 every 28 days from appellant’s continuing compensation payments. 

FACTUAL HISTORY 

OWCP accepted that, on October 31, 2013, the employee, then a 40-year-old letter 

carrier, died in a motor vehicle accident when another vehicle struck his delivery vehicle while in 

the performance of duty. Appellant, the employee’s widow, filed a claim for survivor benefits 

(Form CA-5) on November 22, 2013. She provided her marriage certificate, the employee’s 

death certificate, and the birth certificates of their minor children, M.M. and P.M. OWCP paid 

survivor benefits for appellant and the two minor children beginning November 1, 2013 on the 

supplemental rolls, and later on the periodic rolls effective January 12, 2014. 

On October 27, 2014 and October 5, 2015 appellant completed a claim for continuance of 

compensation (Form CA-12). She checked a box marked “yes” to Question 6, which inquired 

whether any of her dependents received a pension or allowance from any other federal agency 

due to the employee’s death. Appellant listed both her minor children as compensationers and 

specified in section 14 of the form that they all received survivor benefits from the Social 

Security Administration (SSA). She noted her annual salary of $35,000.00 a year as a public 

school teacher. 

On October 29, 2015 OWCP requested that SSA specify the amount of monthly benefits 

paid to appellant, M.M., and P.M., with and without the Federal Employees Retirement System 

(FERS) offset attributable to the employee’s federal service. The SSA responded on 

December 10, 2015. It verified that appellant had received a $255.00 lump-sum death benefit, 

and was receiving the following amount for each of the employee’s two minor children: 

beginning October 2013, $1,581.00 with FERS and $377.30 without; as of December 2013, 

$1,605.30 with FERS and $382.50 without; as of December 2014, $1,632.50 with FERS and 

$389.40 without. 

On April 5, 2016 appellant completed a Long Form Statement of Recovery (Form CA1108) related to a third-party settlement of $100,000.00 against the driver of the vehicle that 

struck the employee’s postal vehicle. She repaid OWCP $25,123.60. 

In an October 20, 2016 memorandum, OWCP requested that SSA clarify its 

December 10, 2015 figures. SSA responded on March 29, 2016 that the deceased employee was 

not entitled to benefits, and that appellant had not received any SSA benefits. The December 10, 

2015 figures for the two minor children remained the same, except for modifying the 

December 2013 and December 2014 rates with FERS from $1,605.30 and $1,632.50 respectively 

to $1,605.00 and $1,632.00 respectively. 

Beginning June 1, 2016, OWCP offset appellant’s SSA benefits from her survivor 

benefits under FECA, adjusting payments every 28 days from $4,404.75 to $2,110.71. 

In a June 2, 2016 worksheet, OWCP calculated that appellant had been overpaid 

$76,444.80 from November 1, 2013 through May 31, 2016 as OWCP had failed to offset SSA 

survivor benefits from ongoing FECA benefits to appellant’s minor children. On June 28, 2016 
3

OWCP completed an identical worksheet, but calculated a $77,674.96 overpayment of 

compensation. 

By notice dated July 11, 2016, OWCP advised appellant of its preliminary determination 

of an overpayment of compensation in the amount of $77,674.96 for the period November 1, 

2013 through May 14, 2016 as SSA survivor benefits had not deducted from FECA death 

benefits to the employee’s minor children. In the July 11, 2016 file memorandum explaining the 

calculation, OWCP listed the overpayment amount as $77,674.96 and $75,214.65. It requested 

that she provide information regarding her income, assets, and expenses. 

Appellant completed an overpayment recovery questionnaire (Form OWCP-20) on 

August 10, 2016. She listed $7,574.00 in monthly income and $7,792.50 in monthly expenses, 

and provided supporting documentation. Appellant also listed $348,000.00 in bank accounts, 

stocks, and bonds. She asserted that she could not repay the debt due to financial hardship. 

By decision dated August 23, 2016, OWCP finalized the July 11, 2016 preliminary 

determination, finding an overpayment of compensation in the amount of $75,214.65 for the 

period November 1, 2013 through May 14, 2016. Appellant was found to be without fault in the 

creation of the overpayment, that waiver of recovery of the overpayment was not warranted, and 

that appellant was to repay the overpayment by a deduction of $605.00 from each of the 

continuing compensation payments to the two minor children until payment was made in full. 

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.3

 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.”4

 

Section 8116(d)(2) of FECA5

 provides for limitations on the right to receive 

compensation and states in pertinent part: 

“(d) Notwithstanding the other provisions of this section, an individual receiving 

benefits for disability or death under this subchapter who is also receiving benefits 

under [S]ubchapter [3] of [C]hapter 84 of this title or benefits under [T]itle [2] of 

the [SSA] shall be entitled to all such benefits, except that --” 

* * * 

 3

 5 U.S.C. § 8102(a). 

4 Id. at § 8129(a). 

5 Id. at § 8116(d)(2). 
4

“(2) in the case of benefits received on account of age or death 

under [T]itle [2] of the [SSA,] compensation payable under this 

subchapter based on the [f]ederal service of an employee shall be 

reduced by the amount of any such social security benefits payable 

that are attributable to [f]ederal service of that employee covered 

by [C]hapter 84 of this title....”6 

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

federal retirement or survivor annuity.7

 

ANALYSIS -- ISSUE 1 

The Board finds that appellant received an overpayment of compensation for the period 

November 1, 2013 through May 14, 2016. The employee’s minor children were paid FECA 

death benefits attributable to the employee’s federal service concurrently with SSA survivor 

payments, a prohibited dual benefit.8 However, the case is not in posture for a decision 

regarding the amount of the overpayment. 

SSA offered two slightly different sets of offset figures, one on December 10, 2015 and 

the other on March 29, 2016. Additionally, OWCP offered three sets of overpayment 

calculations, each with a different result. On June 2, 2016 it noted a $76,444.80 overpayment for 

the period November 1, 2013 through May 14, 2016. However, on June 28, 2016, OWCP found 

a $77,674.96 overpayment of compensation for the same period. A third calculation, included 

with a July 11, 2016 file memorandum accompanying the preliminary overpayment finding 

determined a $75,214.65 overpayment for the same period. OWCP primarily utilized the 

$77,674.96 figure in its July 11, 2016 preliminary overpayment determination. However, the 

August 23, 2016 decision used the $75,214.65 figure as the finalized overpayment amount. 

OWCP did not explain the differing amounts or state why the preliminary determination differed 

from the final decision. The Board has held that, in an overpayment situation, it must explain the 

basis for its finding of overpayment and how the amount of overpayment was calculated.9

 As 

OWCP used differing amounts for the overpayment without a clear explanation of the 

discrepancies, the Board finds that OWCP has not established the amount of the overpayment in 

question. Therefore, the case will be remanded to OWCP for such further development as 

deemed necessary, together with a recalculation of the overpayment, to be followed by a de novo 

decision regarding the overpayment. 

 6 Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e)(2) 

(February 1995) (the portion of SSA benefits earned as a federal employee as part of a FERS retirement package and 

the receipt of FECA benefits concurrently is a prohibited dual benefit). B.L., Docket No. 13-1422 (issued 

June 2, 2014); A.H., Docket No. 12-1402 (issued December 13, 2012). 

7 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a). See also P.M., Docket No. 14-1832 (issued 

January 20, 2015). 

8

 5 U.S.C. § 8116(d)(2). 

9 R.H., Docket No. 08-2025 (issued July 20, 2009). 
5

On appeal counsel contests the fact of overpayment, contending that OWCP provided 

insufficient proof that she was not entitled to all benefits received both under FECA and SSA. 

As found above, OWCP properly determined an overpayment of compensation. Counsel also 

contends that OWCP provided insufficient evidence justifying the $77,444.80 amount. As 

further found above, the case will be remanded for OWCP to clarify the amount of the 

overpayment. 

ISSUES 2 & 3 

As the case is not in posture for a decision regarding the amount of overpayment, it is 

premature for the Board to address the subsequent issues of waiver and rate of recovery. 

CONCLUSION 

The Board finds that OWCP properly determined fact of overpayment of compensation. 

However, the case is not in posture for a decision regarding the amount of the overpayment. The 

case will be remanded to OWCP for recalculation of the overpayment. The issues of waiver of 

recovery and rate of recovery are moot. 

ORDER 

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

Compensation Programs dated August 23, 2016 is affirmed in part regarding the fact of 

overpayment, and set aside in part regarding the amount of overpayment, and the issues of 

waiver and recovery of the overpayment. 

Issued: August 23, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board