United States Department of Labor

Employees’ Compensation Appeals Board

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E.R., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTION 

INSTITUTE, Dublin, CA, Employer

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Docket No. 18-0084

Issued: July 27, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 12, 2017 appellant filed a timely appeal from a September 12, 2017 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 to consider the merits of the case.

 

1 5 U.S.C. § 8101 et seq.
2

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $3,607.37; and (2) whether OWCP properly

determined that appellant was at fault in the creation of the overpayment of compensation thereby 

precluding waiver of recovery of the overpayment.2

FACTUAL HISTORY

On April 25, 2013 appellant, then a 41-year-old correctional officer, filed a traumatic injury 

claim (Form CA-1) alleging that on April 23, 2013 an inmate passed out and fell on her, causing 

injuries to her neck, back, and shoulder. On May 14, 2013 OWCP accepted her claim for right 

shoulder strain, right femoral hernia, cervical sprain, and thoracic sprain. It paid compensation 

benefits commencing June 8, 2013, and placed appellant on the periodic rolls effective 

September 22, 2013. 

On December 12, 2016 appellant completed a form indicating that she elected to receive

benefits from the Civil Service Retirement System (CSRS) instead of benefits under FECA 

effective December 31, 2016. 

On January 20, 2017 OWCP sent appellant a letter advising that it had been informed that 

appellant received compensation under the Civil Service Retirement Act. It advised her that 

annuity benefits by the Office of Personnel Management (OPM) and wage-loss compensation paid 

by OWCP are not payable for the same period of time. OWCP sent appellant a form to complete 

(Form CA-1105) to advise OWCP which benefits she elected. Appellant completed the form on 

January 26, 2017 and elected to receive benefits under CSRS. She noted that the effective date of 

her election was December 31, 2016. 

In a June 23, 2017 letter to OPM, OWCP indicated that appellant elected to receive benefits 

from OPM effective December 31, 2016 in lieu of compensation benefits under FECA. It asked 

OPM to reimburse it in the amount of $3,607.37 for FECA benefits paid from December 31, 2016 

through February 4, 2017. 

On July 21, 2017 OWCP made a preliminary determination that appellant was overpaid in 

the amount of $3,607.37 for the period December 31, 2016 to February 4, 2017 because she 

concurrently received benefits from OWCP and OPM for the same period, which constituted a 

prohibited dual benefit. It advised appellant that she was at fault in the creation of this 

overpayment because she accepted a payment that she knew or reasonably should have known to 

be incorrect. OWCP sent to appellant an Overpayment Action Request that provided the options 

she had for challenging the finding along with a financial form, Overpayment Recovery 

Questionnaire (OWCP-20), and instructed appellant to complete the form and provide the

information within 30 days. It advised appellant that under 20 C.F.R. § 10.438, failure to submit 

 

2 The Board notes that appellant submitted additional evidence after OWCP rendered its September 12, 2017 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1). 
3

the requested information within 30 days would result in the denial of waiver of recovery of the 

overpayment, and no further request for waiver shall be considered until the requested information 

is provided. 

On August 10, 2017 OWCP received appellant’s response wherein she requested a decision 

based on written evidence. Appellant stated that she believed that the overpayment occurred 

through no fault of her own and requested a waiver of recovery. She contended that she did not 

receive retirement pay during the time stated, so there was no overpayment. 

An OWCP memorandum of record indicates that, on September 12, 2013, the claims 

examiner called appellant. The memorandum reflects that appellant told the claims examiner that 

she did not receive money from OPM for the period December 31, 2016 through February 4, 2017. 

The note further indicates that the claims examiner told appellant that she would have to submit 

something from OPM to confirm this, but that in the meantime, OWCP must issue a final 

determination because appellant had not submitted any evidence to support her contention and did 

not submit a completed financial form. 

By decision dated September 12, 2017, OWCP finalized the determination that appellant 

received an overpayment of compensation in the amount of $3,607.37 for the period December 31, 

2016 through February 4, 2017, and also determined that the preliminary finding that appellant 

was at fault in the creation of the overpayment was correct. It requested payment of the full amount 

within 30 days. 

LEGAL PRECEDENT -- ISSUE 1

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 of FECA defines the limitations on the right to receive 

compensation benefits.4 Section 8116(a) provides 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.5 Section 10.421(a) of OWCP’s implementing regulations provide that a 

beneficiary may not receive wage-loss compensation concurrently with a federal retirement or 

survivor annuity.6 The beneficiary must elect the benefit that he or she wishes to receive.7

 

3 5 U.S.C. § 8102(a). 

4

Id. at § 8116. 

5

Id. at § 8116(a). 

6 20 C.F.R. § 10.421(a). 

7

Id.
4

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for a decision. OWCP based its 

overpayment finding on its determination that appellant had received prohibited dual OPM and 

FECA benefits for the period December 31, 2016 through February 4, 2017. While the record 

reflects that appellant received FECA benefits for this period, OWCP has not established that she 

also received OPM benefits for this period.8

Appellant elected OPM retirement benefits effective December 31, 2016. On June 23, 

2017 OWCP requested that OPM commence retirement benefit payments and that OPM reimburse 

any FECA benefits paid to appellant after December 31, 2016. However, there is no evidence of 

record which establishes, as a matter of fact, that appellant actually received OPM benefits, the 

periods during which she received such benefits, or the amount of benefits she received.9 The 

record is also silent as to whether OPM reimbursed OWCP for FECA benefits paid to appellant 

during the period in question. 

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

appellant received an overpayment of compensation in the amount of $3,607.37, it is premature 

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

of any overpayment.

CONCLUSION

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

 

8 R.R., Docket No. 18-0032 (issued May 3, 2018); see also B.G., Docket No. 14-2002 (issued August 13, 2015).

9 R.R., id. The election form signed by appellant on December 12, 2016 is insufficient to show that she actually 

began receiving OPM benefits at any time.
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ORDER

IT IS HEREBY ORDERED THAT the September 12, 2017 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: July 27, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board