United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Saint Louis, MO, Employer 

__________________________________________ 

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Docket No. 16-1224 

Issued: June 23, 2017 

Appearances: Case Submitted on the Record

Paul H. Felser, 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 May 20, 2016 appellant, through counsel, filed a timely appeal from a November 23, 

2015 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 OWCP properly found an overpayment of compensation in 

the amount of $61,659.25 for the period September 1, 2009 through November 15, 2014; 

(2) whether OWCP abused its discretion in denying waiver of recovery of the overpayment; and 

 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

(3) whether it properly reduced appellant’s continuing compensation payments by $500.00 every 

28 days to recover the overpayment. 

FACTUAL HISTORY 

On February 1, 2002 appellant, then a 58-year-old rural letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that she twisted her left knee when entering her postal 

vehicle. OWCP accepted the claim for left knee lateral meniscus tear and left pelvic 

dysfunction. Appellant received medical and wage-loss compensation intermittently until she 

stopped work completely on June 5, 2010 and was placed on the periodic rolls. 

Appellant submitted her annual EN1032 form, dated September 20, 2014, on which she 

advised OWCP that she was receiving a regular retirement check (“not disability”) from the 

Social Security Administration (SSA). 

On September 26, 2014 OWCP requested clarification from appellant as to whether and 

when she began receiving retirement benefits. It also requested that the SSA verify the benefits 

she had received. In a November 7, 2014 Federal Employees Retirement System (FERS)/SSA 

Dual Benefits Calculations worksheet, SSA provided appellant’s SSA rate with FERS and SSA 

rate without FERS from September 2009 through December 2013. 

In a November 17, 2014 memorandum, OWCP advised appellant of a potential 

overpayment because she was receiving a prohibited dual benefit. It noted that she was receiving 

wage-loss compensation for her federal position, and that a portion of her SSA retirement 

benefits were attributable to her federal employment. OWCP noted that a FERS offset should 

have been deducted from her FECA compensation beginning September 1, 2009 and continuing 

through November 15, 2014. 

In a second letter dated November 19, 2014, OWCP informed appellant that her current 

monthly benefit amount was $3,475.00, but that SSA had determined that she was only entitled 

to $2,532.45 as $942.55 of her monthly social security payment was attributable to her federal 

employment. It noted the difference of $942.55 must be offset against her compensation 

benefits. Accordingly, the offset of appellant’s compensation payments would begin with her 

benefit payment dated November 16, 2014 and her new net compensation amount would be 

$1,982.65, every 28 days. 

OWCP provided a worksheet wherein it calculated the FERS offset by subtracting her 

SSA rate without FERS from the SSA rate with FERS. The monthly FERS offset amount was 

multiplied by 12 and divided by 13 to calculate FERS offset for the 28-day compensation cycle. 

OWCP calculated the overpayment by adding the FERS offset by the number of days actually 

overpaid to arrive at $61,659.25. 

By notice dated December 19, 2014, OWCP made a preliminary determination of an 

overpayment of compensation in the amount of $61,659.25 for the period September 1, 2009 

through November 15, 2014 as appellant was paid dual benefits under FECA and SSA without 

an appropriate offset. It found that she was without fault in the creation of the overpayment. 

Appellant was informed of her options if she wished to challenge the fact of overpayment or to 

request waiver of recovery of the overpayment. If she wished a waiver of the overpayment, 
3

appellant was advised to submit financial information and a completed overpayment recovery 

questionnaire (OWCP-20) within 30 days. 

On December 31, 2014 appellant, through counsel, requested a prerecoupment hearing 

before an OWCP hearing representative. 

At the September 9, 2015 hearing, counsel argued that OWCP had not met its burden of 

proof to establish fact of overpayment because there was no evidence that appellant was under 

FERS. He explained that appellant was employed as a career employee by the employing 

establishment in 1980, prior to the establishment of FERS.3

 As such, this would put appellant 

under Civil Service Retirement System (CSRS) which would not require an offset for FECA 

benefits. Counsel explained that OWCP had failed to develop the evidence and was under an 

obligation to request this information from the Office of Personnel Management (OPM). As 

such, OWCP could not make a proper overpayment determination. Moreover, counsel argued 

that as appellant was without fault in the creation of the overpayment of compensation, 

repayment should be waived as it would create a substantial hardship and that she had 

detrimentally relied on the benefits received. The record was held open for 30 days. 

Following the hearing, appellant submitted a 2007 and 2011 United States Postal Service 

(USPS) Personal Statement of Benefits. The benefits statement offered a personalized summary 

of appellant’s total compensation for both direct pay and benefits. On both the 2007 and 2011 

statements, appellant’s retirement plan was classified as 5 CSRS/Offset. Both of the statements 

noted the annual amounts that had been paid to social security Old-age, Survivors and Disability 

Insurance (OASDI) by appellant and matched by the employing establishment. In an 

accompanying statement, appellant argued that she was not under FERS and therefore was not 

required to have her benefits offset. She explained that the USPS Personal Statement of Benefits 

established that her retirement plan was 5 CSRS/Offset. Appellant explained that she was under 

CSRS but had also been paying into social security OASDI for all of these years. 

Appellant submitted an OWCP-20 form and numerous other financial documents, 

arguing that the overpayment of compensation should be waived as repayment would cause her 

financial hardship. 

By decision dated November 23, 2015, an OWCP hearing representative finalized the 

overpayment of compensation in the amount of $61,659.25 for the period September 1, 2009 

through November 15, 2014 as appellant was paid dual benefits under FECA and SSA without 

an appropriate offset. It noted that SSA was the agency which determined whether benefits are 

attributable to federal service, that OWCP did not have access to appellant’s payroll records, and 

that there was no reason for the district office to question the offset information provided by 

SSA. The hearing representative also found that the 2007 and 2011 benefits statements provided 

by appellant, classifying her retirement plan as CSRS, failed to establish that she was not 

covered under FERS, and appellant had failed to submit any other information from SSA to 

establish the offset information they provided was incorrect. 

 3

 The record reflects that a USPS health benefits form notes appellant’s conversion to a rural carrier (career 

appointment) on May 12, 1984. 
4

The hearing representative found that appellant was not at fault in the creation of the 

overpayment because there was no evidence that she knew or should have known that she was 

not entitled to the payment received. She determined, however, that the overpayment was not 

subject to waiver based on the financial information and documentation provided. The hearing 

representative noted that appellant had a monthly household income of $6,714.63, monthly 

household expenses of $4,205.31, and household assets of $270,000.00. She further determined 

that appellant’s household income exceeded her current monthly household expenses by 

$2,675.00, which exceeded the resource base for an individual with a spouse and exceeded her 

documented ordinary and necessary monthly expenses by more than $50.00. OWCP’s hearing 

representative determined that she could repay the overpayment by deducting $500.00 from 

continuing compensation every 28 days. 

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 his or her duty.4

 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.”5

Section 8116(d) of FECA requires that compensation benefits be reduced by the portion 

of SSA benefits based on age or death that are attributable to federal service.6 OWCP 

procedures provide that, while SSA benefits are payable concurrently with FECA benefits, the 

following restrictions apply: in disability cases, FECA benefits will be reduced by SSA benefits 

paid on the basis of age and attributable to the employee’s federal service.7 

ANALYSIS 

The Board finds that the case is not in posture for decision regarding whether OWCP 

properly determined that appellant received a $61,659.25 overpayment of compensation.8 With 

respect to the fact and amount of the claimed overpayment, OWCP based its overpayment 

determination on appellant having reportedly received SSA age-related benefits for her federal 

service, under the FERS retirement plan. Relying on information provided by the SSA, OWCP 

found that she had been receiving a dual benefit dating back to September 2009. The Board 

 4

 5 U.S.C. § 8102(a). 

5 Id. at § 8129(a). 

6 Id. at § 8116(d). See N.R., Docket No. 12-1853 (issued June 10, 2013). 

7

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995); 

Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); OWCP does not require an election 

between FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See 

also R.C., Docket No. 09-2131 (issued April 2, 2010). 

8 J.J., Docket No. 14-785 (issued September 3, 2014). 
5

finds that appellant has established that she was under the CSRS/Offset benefit plan, not the 

FERS retirement plan.9

The record establishes that appellant’s federal civilian service began in 1980 and at that 

time would have been covered under the CSRS plan.10 The employing establishment’s Personal 

Benefits statement of record, however, noted appellant’s retirement plan as “5 CSRS/OFF.” 

Appellant has also testified that she was never under the FERS retirement plan. The evidence of 

record does not substantiate that appellant was under the FERS retirement plan. 

OWCP determined that appellant received an overpayment of compensation from 

September 1, 2009 through November 15, 2014 because she received compensation from OWCP 

and SSA benefits without an appropriate offset. The offset provision of section 8116(d)(2) 

applies to age-related SSA benefits that are attributable to federal service. 

The Board also finds that the record does substantiate, based upon appellant’s own 

statement as well as the employing establishment Personal Benefits statements, that she paid into 

social security OASDI. 

Appellant received age-based SSA benefits after retirement as a result of her 

contributions to SSA under the CSRS-Offset system. As she received SSA benefits based in part 

of her federal service concurrently with disability compensation from OWCP without an 

appropriate offset, she received an overpayment of compensation.11 

The Board finds, however, that the case is not in posture for decision regarding the 

amount or period of the overpayment. SSA provided OWCP with information regarding 

appellant’s rate of SSA benefits beginning September 2009 both with and without FERS. As 

discussed, however, she was not covered by FERS, but was instead under the CSRS-Offset 

retirement plan. It is not clear from the record whether the offset rates under the CSRS-Offset 

retirement plan are the same as the rates in FERS plan. On remand, OWCP should obtain 

additional information from SSA and OPM regarding appellant’s retirement system and her SSA 

rate with and without any offset required based on her federal civilian service.12 

The Board finds that the case is not in posture for decision.13 Accordingly, the Board will 

remand the case for OWCP to recalculate the amount of the overpayment.14

 9 A.P., Docket No. 12-122 (issued May 7, 2012). 

10 Under CSRS, federal employees were generally exempt from paying social security taxes; social security 

OASDI. 5 U.S.C. §§ 8331-8351. 

11 Supra note 6. 

12 J.M., Docket No. 12-0954 (issued November 26, 2012). 

13 F.F., Docket No. 16-0063 (issued June 24, 2016). 

14 Supra note 12. 
6

CONCLUSION 

The Board finds that OWCP has established fact of overpayment of compensation for 

which appellant was without fault, but that the case is not in posture for decision regarding the 

amount of the overpayment. 

ORDER 

IT IS HEREBY ORDERED THAT the November 23, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision of the Board. 

Issued: June 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