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. 17-0517 

Issued: September 8, 2017 

Appearances: Case Submitted on the Record

Kim Gabriel, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 9, 2017 appellant, through counsel, filed a timely appeal from an October 18, 

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. 

 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

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. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts of the case outlined in the 

prior Board decision are incorporated herein by reference. The relevant facts are as follows. 

OWCP accepted that on December 2, 1994 appellant, then a 66-year-old supervisory field 

representative, was involved in a work-related motor vehicle accident and sustained a 

concussion; left upper extremity injuries; contusions of the chest and lower extremities; bilateral 

knee injuries; a right knee meniscus tear; left ankle strain; cervical, thoracic, and lumbar strains; 

jaw subluxation; right shoulder tendinitis (consequential injury); and a closed fracture of the left 

lateral malleolus. Appellant stopped work and did not return. OWCP paid her wage-loss 

compensation benefits, beginning 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 

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

to Federal Insurance Contributions Act (FICA) withholding. 

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. 

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. 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 

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. 
3

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 2011-2013 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. 

OWCP subsequently advised appellant that, effective July 26, 2015, her 28-day wageloss compensation 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 a prohibited dual 

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

overpayment. 

On August 28, 2015 appellant requested review of the written record. She believed that 

SSA may have included some of her non-FERS, private income that she earned between 1991-

1994 when she worked for both the Federal Government and a local school system. Appellant 

also submitted an overpayment recovery questionnaire (Form 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. She also reported $261.00 in assets, including cash, checking, 

and savings accounts. 

By decision dated October 22, 2015, an OWCP hearing representative finalized the 

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, the hearing 

representative determined that appellant’s monthly income exceeded her monthly expenses by 

$91.91, and the surplus was sufficient to warrant recovery of the overpayment. OWCP also 
4

imposed a 28-day repayment of $75.00 to be deducted for appellant’s continuing compensation 

payments as of November 15, 2015.3

 Appellant then appealed to the Board. 

In a June 21, 2016 decision and order,4 the Board set aside the October 22, 2015 decision, 

finding that the case was not in posture regarding the amount of the overpayment. The Board 

found that the portion of monthly SSA benefits attributable to appellant’s FERS-based 

contributions was unclear. The record included two conflicting sets of figures from SSA 

regarding the FERS offset. The record was not clear as to why OWCP relied on the July 20, 

2015 calculations rather than the July 31, 2014 figures. The Board remanded the case to OWCP 

to seek clarification from SSA regarding the correct amount of the FERS offset, and to obtain a 

complete payment history from SSA regarding age-related benefits received beginning in 

June 2011. This development was to be followed by a de novo decision. 

On remand of the case, OWCP requested that SSA provide clarification regarding 

appellant’s age-related SSA retirement benefits on and after May 28, 2011. SSA responded on 

September 26, 2016 indicating that, beginning in June 2011, appellant’s total monthly SSA 

benefit was $841.10, and the corresponding monthly amount excluding her FERS-based 

contributions was $584.40. The SSA representative also provided additional calculations for 

subsequent periods beginning December 2011 ($871.30/$605.30), December 2012 ($886.10/ 

$615.60), December 2013 ($899.40/$624.80). These figures duplicated the information that SSA 

provided on July 20, 2015. SSA also calculated that, beginning May 2015 through 

December 2015, appellant’s total monthly benefit was $1,385.60, and the corresponding monthly 

amount excluding her FERS-based contributions was $942.40. 

In an October 14, 2016 letter, received on October 18, 2016 counsel contended that 

appellant was entitled to waiver of recovery because her monthly expenses exceeded her income, 

she had budgeted only $0.32 a month for food, and her assets were below the $4,800.00 resource 

base for an individual as set forth in OWCP’s implementing regulation at 20 C.F.R. § 10.436. 

She argued that OWCP therefore erred by deducting $75.00 every 28 days from continuing 

compensation payments beginning in November 2015. 

By decision dated October 18, 2016, OWCP finalized the August 18, 2015 preliminary 

notice of overpayment, finding a $10,636.63 overpayment of compensation, with a current 

balance of $9,830.77 due to deductions of $75.00 every 28 days from appellant’s continuing 

compensation payments. It found that updated information from SSA received on September 26, 

2016 confirmed that the July 20, 2015 figures on which the October 22, 2015 decision was based 

were correct. Therefore, the October 22, 2015 determination remained unchanged. 

Additionally, OWCP found that appellant was not at fault in creation of the overpayment. 

However, the overpayment was not subject to waiver. Relying on the financial documentation 

 

 3 Following issuance of the October 22, 2015 decision, appellant submitted October 27 and November 23, 2015 

letters alleging that OWCP did not properly consider her monthly expenses. OWCP provided appellant with a copy 

of the appeal rights accompanying the October 22, 2015 decision. Appellant continued to assert that OWCP erred in 

calculating her monthly expenses. In a January 14, 2016 letter, OWCP notified appellant that her only right of 

appeal was to the Board. Appellant subsequently appealed to the Board. 

4

 Docket No. 16-0553 (issued June 21, 2016). 
5

that appellant submitted with the August 28, 2015 overpayment recovery questionnaire (Form 

OWCP-20), OWCP found that her monthly income exceeded her monthly expenses by $91.91, 

and the surplus was sufficient to warrant recovery of the overpayment. It affirmed the recovery 

of the continued overpayment by deducting $75.00 from appellant’s continuing compensation 

payments every 28 days. 

LEGAL PRECEDENT -- ISSUE 1 

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

federal retirement or survivor annuity.5 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.6 However, an offset is not required 

where the employee-beneficiary is covered under the Civil Service Retirement System and his or 

her SSA age-related benefits are attributable to private sector employment.7

 

Section 10.431 of the implementing regulations provides that, before seeking to recover 

an overpayment or adjust benefits, OWCP will advise the individual in writing that the 

overpayment exists and the amount of the overpayment.8

 The written notification must also 

include a preliminary finding regarding whether the individual was at fault in the creation of the 

overpayment.9 Additionally, OWCP is obliged to advise the individual of his or her right to 

inspect and copy the government records relating to the overpayment.10 Lastly, the preliminary 

notice must inform the individual of his or her right to challenge the fact or amount of the 

overpayment, the right to contest the preliminary finding of fault in the creation of the 

overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.11 

The recipient of the alleged overpayment may present evidence in response to OWCP’s 

preliminary notice either in writing or at a prerecoupment hearing.12 The evidence must be 

presented or the hearing requested within 30 days of the date of the written notice of 

overpayment.13 Failure to request the hearing within this 30-day time period shall constitute 

waiver of that right.14 

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

6 Id. at § 8116(d)(2); id. at § 10.421(d). 

7 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). 

8

 20 C.F.R. § 10.431(a). 

9 Id. at § 10.431(b). 

10 Id. at § 10.431(c). 

11 Id. at § 10.431(d). 

12 Id. at § 10.432. 

13 Id. 

14 Id.
6

OWCP procedures provide that, once an overpayment is identified and calculated, it is 

responsible for determining whether the claimant was with fault or without fault, issuing a 

preliminary finding, and unless a hearing is requested, OWCP is responsible for issuing a final 

decision.15 These procedures note that, if the claimant is determined to be with fault, Form CA2201 (preliminary finding notice) must be released within 30 days of the date the overpayment is 

identified. Both the reason that the overpayment occurred and the reason for the finding of fault 

must be clearly stated. Form CA-2201 informs the claimant of the right to submit evidence and 

the right to a prerecoupment hearing on the issues of (a) fact and amount of overpayment, 

(b) fault, and (c) waiver. Along with Form CA-2201, OWCP should provide a clearly written 

statement explaining how the overpayment was calculated.16 

ANALYSIS -- ISSUE 1 

On August 18, 2015 OWCP made preliminary findings that appellant had received an 

overpayment of compensation in the amount of $10,636.63 for the period June 1, 2011 through 

July 25, 2015, as she received concurrent FECA and SSA benefits without offset. On August 28, 

2015 appellant requested review of the written record. She submitted a completed overpayment 

recovery questionnaire (Form OWCP-20) and supporting documentation. By decision dated 

October 22, 2015, an OWCP hearing representative affirmed the August 18, 2015 preliminary 

determination, finding a $10,636.63 overpayment of compensation for the period June 1, 2011 

through July 25, 2015. Appellant appealed to the Board. By decision and order issued June 21, 

2016, the Board set aside OWCP’s October 22, 2015 decision, finding the case not in posture for 

a decision as there was conflicting evidence regarding the correct amount of the overpayment. 

On remand OWCP obtained clarifying information from SSA regarding the amount of 

the overpayment. By decision dated October 18, 2016, it again finalized the August 18, 2015 

preliminary notice of overpayment, finding a $10,636.36 overpayment of compensation, with a 

current balance of $9.830.77. OWCP further found that appellant was without fault and that 

recovery of the overpayment would continue to be made by deducting $75.00 every 28 days 

from appellant’s continuing compensation benefits. 

The Board finds that OWCP improperly issued the October 18, 2016 overpayment 

decision. OWCP regulations provide that before seeking to recover an overpayment or adjust 

benefits, it will advise the individual in writing that the overpayment exists and the amount of the 

overpayment.17 It must inform the individual of her right to challenge the fact or amount of the 

overpayment, the right to contest the preliminary finding of fault in the creation of the 

overpayment, and the right to request a waiver of recovery of the overpayment.18 OWCP’s 

procedures further provide that a preliminary finding of overpayment must be provided within 30 

 15 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4 

(May 2004). 

16 Id. at Chapter 2.600.4(a)(1) (May 2004). 

17 20 C.F.R. § 10.431(a). 

18 Id. at § 10.431(d). 
7

days and must clearly identify the reason that the overpayment occurred and the basis for any 

fault finding.19 

The preliminary notice of findings is essential in overpayment cases because OWCP 

regulations limit further review of a final decision concerning overpayment to the Board. A 

claimant is prohibited from requesting a hearing, or reconsideration, following a final 

overpayment decision.20 The claimant is, therefore, precluded from introducing new evidence to 

rebut findings made in a final overpayment decision. 

The Board notes that OWCP routinely issues a new preliminary determination after an 

OWCP hearing representative reviews a preliminary overpayment decision and remands the case 

to OWCP for further findings.21 

In this case, OWCP had not issued a new preliminary determination advising appellant of 

its findings following the Board’s June 21, 2016 decision. Rather, it simply affirmed the final 

amount of the overpayment, adjusted due to partial recovery. OWCP has not provided appellant 

with the right to challenge the amount of overpayment or inform her whether she was entitled to 

waiver of recovery, thereby infringing upon her due process procedural rights.22 The Board finds 

that OWCP did not provide her due process and improperly issued the October 18, 2016 

overpayment decision. 

The due process issue in the present case is similar to that in K.G.,23 where the Board set 

aside an OWCP August 20, 2007 decision finding that an overpayment of compensation had 

been created in the amount of $7,183.80, and that the claimant was at fault in the creation of the 

overpayment, thereby precluding waiver of recovery.24 The Board remanded the case for further 

development regarding fact of overpayment, after which OWCP issued a June 3, 2008 decision 

finalizing the overpayment of $7,183.80 without issuing a new preliminary determination. As in 

the present case, the fact and amount of the overpayment had not changed from the initial 

January 16, 2007 preliminary determination and final August 20, 2007 overpayment decision. 

However, when the case returned to the Board for the second time on appeal, the Board found 

that OWCP had erred in not issuing a new preliminary determination. The Board found that the 

claimant had been denied due process because it had failed to issue a new preliminary 

determination from which she could request a hearing or review of the evidence. Similarly, in 

 19 Id. 

20 See 20 C.F.R. § 10.440(b). 

21 See N.N., Docket No. 14-0603 (issued July 22, 2014); J.J., Docket No. 13-1905 (issued April 8, 2014); L.B., 

Docket No. 12-1202 (issued February 6, 2013). 

22 20 C.F.R. §§ 10.431, 10.432. 

23 Docket No. 08-2135 (issued April 16, 2009). 

24 On January 16, 2007 OWCP made a preliminary determination that appellant was overpaid in the amount of 

$7,183.80 for the period April 10 to July 7, 2007. It found that she was at fault in the creation of the overpayment as 

she accepted a payment which she knew or should have known to be incorrect. 
8

the case currently before the Board, OWCP has failed to afford appellant due process as she was 

not issued a new preliminary determination of overpayment according to its procedures. 

Likewise in M.V.,

25 a preliminary determination had been issued on April 3, 2012 and 

finalized on October 10, 2012 finding an overpayment of compensation in the amount 

$20,227.46. On appeal the Board remanded the case for further development of the medical 

evidence for its schedule award determination and further determined that it was premature to 

address the overpayment issue as the case was not in posture for determination.26 Per the 

Board’s instructions on remand, OWCP further developed the medical evidence for its schedule 

award determination and issued a new, final overpayment decision dated December 19, 2013 

finding the same $20,227.46 overpayment amount. On a subsequent appeal, the Board remanded 

the December 19, 2013 overpayment decision for failing to properly issue a new preliminary 

determination notifying the claimant of its findings, providing the right to challenge the fact or 

amount of overpayment, or to submit new information regarding waiver of recovery of the 

overpayment.27 The Board notes that, as in the current case, the fact and amount of overpayment 

had not changed from the initial April 3, 2012 preliminary determination and October 10, 2012 

final overpayment decision. Yet, the Board nonetheless found that the claimant had not been 

afforded his procedural rights as OWCP had failed to issue a new preliminary determination. 

The Board notes that, in both M.V. and K.G., the fact and amount of the overpayment did 

not change from the preliminary to the final overpayment decision issued on remand.28 

However, the Board still determined that procedural rights had been denied without a new 

preliminary determination prior to its final overpayment decision. As in this case, OWCP failed 

to issue a new preliminary determination notifying appellant of its new findings, providing her 

with the right to challenge the fact and adjusted amount of overpayment, or to submit new 

information regarding waiver of recovery of the overpayment. Consequently, it did not comply 

with the procedural rights under its regulations.29

Accordingly, the case will be remanded for OWCP to issue a preliminary determination 

regarding overpayment consistent with its own procedures. 

 25 M.V., Docket No. 13-798 (issued August 14, 2013). 

26 The Board set aside an October 20, 2012 schedule determination finding that the claimant was not entitled to 

more than 20 percent impairment of the right upper extremity and instructed OWCP to refer him for a new impartial 

medical specialist for an impairment evaluation. The Board further set aside an October 10, 2012 decision finding 

that appellant received an overpayment of compensation because he received excess compensation for a schedule 

award in the amount of $20,227.46. It determined that it was premature to address the overpayment issue as the case 

was not in posture for determination regarding the extent of permanent impairment. Id.

27 M.V., Docket No.14-1131 (issued November 14, 2014). 

28 Supra notes 23, 25, and 27. 

29 20 C.F.R. §§ 10.431, 10.432; see also K.H., Docket No. 11-603 (issued September 27, 2011); and supra 

note 23. 
9

ISSUES 2 & 3 

As the case is not in posture regarding the threshold issues of fact and amount, it is 

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

CONCLUSION 

The Board finds the case not in posture for decision. 

ORDER 

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

Compensation Programs dated October 18, 2016 is set aside and the case is remanded for further 

proceedings consistent with this decision of the Board. 

Issued: September 8, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board