United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Huntington Station, NY, Employer 

__________________________________________ 

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Docket No. 17-0784 

Issued: August 23, 2017 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 24, 2017 appellant, through counsel, filed a timely appeal from a 

September 28, 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 the case. 

ISSUES 

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

amount of $1,023.72 because he concurrently received Office of Personnel Management (OPM) 

 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

retirement benefits while receiving FECA benefits for the period May 20 to 28, 2016; 

(2) whether OWCP properly determined that appellant was at fault in the creation of the 

overpayment, thereby precluding waiver of recovery of the overpayment. 

On appeal counsel asserts that, as appellant’s retirement benefits did not commence on 

May 20, 2016, there had been no dual payment and thus no overpayment of compensation. 

FACTUAL HISTORY 

On March 4, 2011 appellant, then a 49-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he felt immediate back pain and right-sided numbness when he 

lifted mail at work. He stopped work that day. On March 6, 2011 he had cervical discectomy 

and decompression surgery. 

Following an initial denial on April 27, 2011 decision dated October 31, 2011, OWCP 

vacated the prior decision, and accepted cervical stenosis at C5-6 with myelopathy. Appellant 

received retroactive compensation, and was placed on the periodic compensation rolls. 

On May 20, 2016 counsel notified OWCP that appellant elected to receive OPM 

retirement benefits, effective May 20, 2016. He submitted an election form to that effect, signed 

by appellant on May 20, 2016. 

OWCP terminated appellant’s wage-loss compensation effective May 20, 2016. It noted 

that he had received compensation through May 28, 2016. 

By letter dated June 1, 2016, OWCP notified OPM that appellant had elected to receive 

retirement benefits effective May 20, 2016 in lieu of FECA compensation. It noted that 

appellant had received FECA compensation through May 28, 2016. OWCP asked that OPM 

begin annuity payments effective May 20, 2016 and reimburse OWCP $1,023.72 for FECA 

benefits paid for the period May 20 to 28, 2016. 

On July 28, 2016 OWCP issued a preliminary finding that a $1,023.72 overpayment of 

compensation had been created for the period May 20 to 28, 2016. It explained that the 

overpayment occurred because appellant received both FECA benefits and OPM retirement 

benefits during this period. Appellant was found at fault and was provided an overpayment 

action request and overpayment recovery questionnaire (OWCP-20). The record contains an 

overpayment computer printout worksheet showing that, for the period May 20 to 28, 2016, 

appellant received net FECA wage-loss compensation totaling $1,023.72. 

Appellant completed an overpayment action request on August 17, 2016, which was 

received by OWCP on August 26, 2016. He maintained that no overpayment existed. In 

attached correspondence, counsel asserted that, as OPM had not commenced monthly annuity 

payments, there was no overpayment and certainly no fault on the part of appellant. 

By decision dated September 28, 2016, OWCP finalized the preliminary overpayment 

decision, finding that appellant was at fault in the receipt of an overpayment in compensation in 

the amount of $1,023.72 and, thus, was not entitled to waiver of the overpayment. It requested 
3

that appellant repay the overpayment in full or contact OWCP to make arrangements for 

recovery. 

LEGAL PRECEDENT 

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.3

 Section 8116(a) states 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.4 Section 10.421(a) of OWCP’s implementing regulations 

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

retirement or survivor annuity.5

 The beneficiary must elect the benefit that he or she wishes to 

receive.6

 OWCP procedures also explain that the employee must make an election between 

OWCP benefits and OPM benefits. The employee has the right to elect the monetary benefit 

which is the more advantageous. This policy also applies to reemployed annuitants.7 

ANALYSIS 

The Board finds this case is not in posture for decision. 

OWCP based its overpayment finding on its determination that appellant received 

impermissible dual OPM and FECA benefits for the period May 20 to 28, 2016. While the 

record reflects that appellant received FECA benefits for this period, OWCP has not shown that 

he received OPM benefits for the period. Although OWCP wrote OPM on June 1, 2016, 

(rd6/1/16) at the time OWCP issued the final overpayment decision on September 28, 2016, 

OPM had not responded. Thus, there is no documentation in the record establishing, as a matter 

of fact, if and when appellant received OPM benefits, the periods for which he received such 

benefits, or the amount of benefits he received.8 Therefore, the evidence of record does not 

contain documentation showing that appellant received OPM benefits between May 20 and 

28, 2016. It was alleged that appellant received dual benefits during this period, OWCP has not 

met its burden to establish the fact of an overpayment of compensation in the amount of 

 3

 5 U.S.C. § 8102(a). 

4 Id. at § 8116(a). 

5

 20 C.F.R. § 10.421(a). 

6 Id. 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also 

R.S., Docket No. 11-428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued 

March 30, 1994). 

8

 The election form signed by appellant on May 20, 2016 is not sufficient to show that he actually began receiving 

OPM benefits that day or any other time. 
4

$1,023.72 for this period.9

 The case will be remanded to OWCP for further development of this 

matter to be followed by an appropriate decision. 

Given that the case is not in posture regarding whether OWCP properly determined that 

appellant received an overpayment of compensation in the amount of $1,023.72, it is premature 

for the Board to consider whether OWCP properly determined that he was at fault in the creation 

of any overpayment. 

CONCLUSION 

The Board finds this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the September 28, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for 

proceedings consistent with this opinion of the Board. 

Issued: August 23, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9 D.O., Docket No. 15-1004 (issued July 28, 2015).