United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.M., Appellant 

and 

DEPARTMENT OF THE NAVY, FLEET 

FORCES COMMAND, Portsmouth, VA, 

Employer 

__________________________________________ 

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Docket No. 16-1260 

Issued: November 7, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 June 6, 2016 appellant filed a timely appeal from a May 3, 2016 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 over 

the merits of this case. 

ISSUES 

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

$1,954.43 overpayment of compensation; 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. 

FACTUAL HISTORY 

On May 20, 2009 appellant, then a 42-year-old painter, filed a traumatic injury claim 

(Form CA-1) alleging that on May 19, 2009 he sustained injury to his neck and back due to a 

 1

 5 U.S.C. § 8101 et seq. 
2

vehicular accident at work. OWCP accepted that he sustained several injuries to his back, left 

shoulder, and left knee. Appellant received disability compensation on the daily rolls effective 

May 19, 2009 and on the periodic rolls effective February 13, 2011.2 

The record contains a July 30, 2012 letter, received by OWCP on August 7, 2012, in 

which appellant advised that he was retiring on disability retirement effective August 4, 2012. 

On August 15, 2012 OWCP sent appellant a letter requesting that he sign and return an enclosed 

election form and, on August 4, 2012, it received an undated signed election form in which 

appellant elected to receive retirement benefits from the Office of Personnel Management (OPM) 

effective August 4, 2012 in lieu of FECA benefits.3

In letters to OPM dated September 10 and October 2, 2012, OWCP advised that appellant 

had elected to receive OPM benefits effective August 4, 2012 in lieu of FECA benefits and 

requested that OPM reimburse it for the $1,954.43 in FECA benefits it had paid to appellant for 

the period August 4 to 25, 2012. The record does not contain any response from OPM to these 

letters. 

In a June 19, 2013 notice, OWCP advised appellant of its preliminary determination that 

he received an overpayment of compensation in the amount of $1,954.43 for the period August 4 

to 25, 2012 because he had received both FECA and OPM benefits for the same period.4

 It also 

made a preliminary determination that he was without fault in the creation of the overpayment, 

noting that he “was not aware nor could [he] reasonably have been expected to know that OWCP 

had paid compensation incorrectly due to the timing of the election and termination of 

compensation process.” OWCP advised appellant that he could submit evidence challenging the 

fact, or amount of the overpayment, and request waiver of recovery of the overpayment. It 

informed him that he could submit additional evidence in writing or at prerecoupment hearing, 

but that a prerecoupment hearing must be requested within 30 days of the date of the written 

notice of overpayment. OWCP requested that appellant complete and return an enclosed 

financial information questionnaire (Form OWCP-20) within 30 days even if he was not 

requesting waiver of recovery of the overpayment. 

On June 28, 2013 OWCP received a financial information questionnaire which appellant 

had completed on an unspecified date. Appellant listed figures for monthly income, monthly 

expenses, and assets and he challenged the fact and amount of the $1,954.43 overpayment. He 

submitted a portion of an OPM form (CSA-8) entitled “retroactive benefits explanation” which 

indicated that he had “Gross Benefits due from December 28, 2010 through November 30, 2012” 

 2

 Appellant last received OWCP compensation on February 16, 2015. 

3

 The certification portion of the form indicated, “I understand that I am not entitled to receive FECA benefits and 

[OPM disability] benefits concurrently (except for a schedule award).” 

4

 The record contains OWCP payment records and worksheets showing that appellant received $1,954.43 in 

disability compensation benefits for the period August 4 to 25, 2012. 
3

of $5,982.60.5

 The form listed various deductions from that amount, including a “Government 

Claim Collection” of $1,954.43.6

In a letter to OPM dated December 4, 2013, OWCP again requested that OPM reimburse 

it for the $1,954.43 in FECA benefits it paid to appellant for the period August 4 to 25, 2012. It 

indicated, “[W]e do n[o]t have a record of receiving this amount. Can you please forward this 

amount to us or inform us when it was sent.” The record does not contain any response from 

OPM to this letter. 

In a May 3, 2016 decision, OWCP determined that appellant received an overpayment of 

compensation in the amount of $1,954.43 for the period August 4 to 25, 2012 because he had 

received both FECA and OPM benefits for the same period.7

 It found that he was at fault in the 

creation of the $1,954.43 overpayment, thereby precluding waiver of recovery of the 

overpayment.8

 OWCP noted that it had “determined that the preliminary finding that you were 

with fault in the matter of the overpayment was correct” and indicated that appellant “was found 

with fault in the creation of the overpayment because [he] accepted a payment that [he] or 

reasonably should have known was incorrect.” 

LEGAL PRECEDENT -- ISSUE 1 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of his duty.9

 While an employee is receiving 

compensation, the employee may not receive salary, pay, or remuneration of any type from the 

United States, except in limited specified instances.10 Thus, a beneficiary may not receive wageloss compensation concurrently with a federal retirement or survivor annuity. The beneficiary 

must elect the benefit that he wishes to receive and any election, once made, is revocable.11

When an overpayment has been made to an individual 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.12

 5

 It is unclear why the form lists OPM retirement benefits beginning effective December 28, 2010 given that the 

record contains an election form in which appellant elected to receive OPM retirement benefits effective August 4, 

2012 in lieu of FECA benefits. 

6

 OPM also listed a $1,677.16 deduction for “Health Insurance Premium,” an $817.69 deduction for “Federal 

Income Tax,” and a $64.66 deduction for “Basic Life Insurance,” and noted that appellant was “due a net retroactive 

payment of $1,468.66.” 

7

 It is unclear why OWCP issued its final overpayment decision almost three years after making its preliminary 

overpayment determination. 

8

 The Board notes that, in its preliminary determination dated June 19, 2013, OWCP found appellant without fault 

in the creation of the $1,954.43 overpayment. 

9

 5 U.S.C. § 8102(a). 

10 Id. at § 8116(a). See Edward W. Spohr, 57 ECAB 287 (2005). 

11 20 C.F.R. § 10.421(a). See Sharon Handy, 57 ECAB 446 (2006). 

12 5 U.S.C. § 8129(a). 
4

ANALYSIS -- ISSUE 1 

A review of the record establishes that appellant received wage-loss compensation for the 

period August 4 to 25, 2012 in the amount of $1,954.43 while also receiving federal retirement 

benefits from OPM for this period.13 The receipt of federal retirement benefits for the period 

August 4 to 25, 2012 is confirmed by an OPM form (CSA-8) entitled “retroactive benefits 

explanation.” The form listed various deductions from the amount of retirement benefits due 

appellant from OPM, including a “Government Claim Collection” of $1,954.43. However, 

OWCP records show that, despite OWCP’s attempts to have OPM pay it the $1,954.43 in FECA 

benefits appellant received from August 4 to 25, 2013, no such payment was made by OPM to 

OWCP. As noted, an employee cannot receive compensation under FECA and retirement pay 

from OPM for the same period.14 Therefore, an overpayment of compensation was created from 

August 4 to 25, 2012 in the amount of $1,954.43.15

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(a) of FECA provides that where an overpayment of compensation has been 

made “because of an error of fact or law,” adjustment shall be made by decreasing later 

payments to which an individual is entitled.16 The only exception to this requirement is a 

situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery 

by the United States may not be made when incorrect payment has been made to an individual 

who is without fault and when adjustment or recovery would defeat the purpose of this 

subchapter or would be against equity and good conscience.”17 No waiver of payment is 

possible if the claimant is not “without fault” in helping to create the overpayment.18

In determining whether an individual is not “without fault” or alternatively “at fault” in 

the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations 

provides in relevant part: 

“A recipient who has done any of the following will be found to be at fault with 

respect to creating an overpayment: 

(1) Made an incorrect statement as to a material fact which he or 

she knew or should have known to be incorrect; or 

 13 The record contains OWCP payment records and worksheets showing that appellant received $1,954.43 in 

disability compensation benefits for the period August 4 to 25, 2012. 

14 See supra notes 11 and 12. 

15 On appeal, appellant indicated that $1,954.43 was deducted from his OPM benefits. However, as noted, there 

is no evidence that this amount was paid by OPM to OWCP, and appellant provided no evidence to support his 

contention that it had been deducted from his OPM benefits. 

16 5 U.S.C. § 8129(a). 

17 Id. at § 8129(b). 

18 L.J., 59 ECAB 264 (2007). 
5

(2) Failed to provide information which he or she knew or should 

have known to be material; or 

(3) Accepted a payment which he or she knew or should have 

known to be incorrect....”19

ANALYSIS -- ISSUE 2 

In a June 19, 2013 notice, OWCP made a preliminary determination that appellant was 

without fault in the creation of the $1,954.43 overpayment, noting that he “was not aware nor 

could [he] reasonably have been expected to know that it had paid compensation incorrectly due 

to the timing of the election and termination of compensation process.” However, in a May 3, 

2016 decision, it found that appellant was at fault in the creation of the $1,954.43 overpayment, 

thereby precluding waiver of recovery of the overpayment. OWCP noted that it had “determined 

that the preliminary finding that you were with fault in the matter of the overpayment was 

correct” and indicated that appellant “was found with fault in the creation of the overpayment 

because [he] accepted a payment that [he] reasonably should have known was incorrect.” 

Given the disparity between OWCP’s finding of no fault in the creation of the $1,954.43 

overpayment in its preliminary overpayment determination and its finding of fault in the creation 

of the $1,954.43 overpayment in its final overpayment decision, appellant was deprived an 

opportunity to submit evidence and argument challenging the finding of fault and the denial of 

waiver of recovery of the overpayment.20 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility to see that justice is done.21 Therefore, the case is set aside with respect to 

the matters of fault and waiver of recovery of the $1,954.43 overpayment and the case is 

remanded to OWCP for further development such that appellant has an opportunity to submit 

evidence and argument regarding these issues. After carrying out this development, OWCP will 

issue a de novo decision regarding the matters of fault and waiver of recovery of the $1,954.43 

overpayment. 

CONCLUSION 

The Board finds that OWCP properly determined that appellant received a $1,954.43 

overpayment of compensation. The Board further finds that the case is not in posture for 

decision regarding whether OWCP properly determined that appellant was at fault in the creation 

of the $1,954.43 overpayment of compensation, thereby precluding waiver of recovery of the 

overpayment. 

 19 20 C.F.R. § 10.433(a). 

20 See Carol Walters, Docket No. 93-40 (issued January 14, 1994) (after OWCP informed appellant that it made a 

preliminary finding that she was without fault, it erred when it subsequently changed the preliminary determination 

to a fault finding without providing appellant an opportunity to respond). 

21 R.M., Docket No. 16-0147 (issued June 17, 2016). 
6

ORDER 

IT IS HEREBY ORDERED THAT the May 3, 2016 decision of the Office of Workers’ 

Compensation Programs is affirmed with respect to the fact and amount of the $1,954.43 

overpayment. The May 3, 2016 decision is set aside and the case remanded to OWCP with 

respect to the matters of fault and waiver of recovery of the $1,954.43 overpayment. After 

proceedings consistent with this decision of the Board, OWCP will issue a de novo decision. 

Issued: November 7, 2016 

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