United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.A., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Romulus, MI, Employer

__________________________________________

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Docket No. 17-0165

Issued: November 16, 2017

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 November 1, 2016 appellant filed a timely appeal from a September 28, 2016 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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 appellant received a $9,960.13 overpayment of compensation 

for the period December 31, 2014 through March 5, 2016; and (2) whether OWCP abused its 

discretion in denying waiver of recovery of the overpayment. 

 

1 Appellant also filed a timely request for oral argument in this case. By order dated March 2, 2017, the Board 

after exercising its discretion, denied appellant’s request for oral argument as oral argument would further delay 

issuance of a Board decision and not serve a useful purpose. Order Denying Request for Oral Argument, Docket 

No. 17-0165 (issued March 2, 2017).

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 13, 2011 appellant, then a 47-year-old transportation security officer 

screener, filed a traumatic injury claim (Form CA-1) alleging that on September 27, 2011 she 

sustained a right wrist strain when she attempted to push a passenger’s carryon luggage,

weighing approximately 40 pounds, from a table to a jammed x-ray conveyor belt. OWCP 

accepted the claim for right wrist sprain, lunotriquetral ligament tear, right wrist synovitis, and 

internal derangement of the right wrist. Appellant stopped work intermittently for medical 

treatment. On March 12, 2012 she underwent an authorized right wrist surgery consisting of an 

arthroscopic evaluation, synovectomy, and debridement of the lunotriquetral ligament tear. 

Appellant stopped work from March 11 through June 5, 2012 and received wage-loss 

compensation benefits for that period. On August 16, 2012 she stopped work again to undergo a 

second surgery.3 

By letter dated December 10, 2014, OWCP informed appellant that, under FECA, she 

was receiving a gross weekly compensation of $518.24 and gross 28-day compensation of 

$2,072.94. Appellant was informed that she might also be entitled to receive benefits provided 

by the Office of Personnel Management (OPM) under the Civil Service Retirement System 

(CSRS) or the Federal Employees’ Retirement System (FERS). OWCP provided her an election 

of benefits (Form CA-1105) and requested she select either FECA benefits or retirement benefits 

as except for a schedule award, she was not entitled to receive both FECA and CSRS/FERS 

benefits concurrently. No further information was received from appellant at the time. 

By letter dated October 22, 2015, OPM notified appellant that her application for 

disability retirement under FERS had been approved. It informed her of the required process 

before she could begin receiving her annuity payments. 

By letter dated December 1, 2015, the employing establishment notified OWCP that 

appellant had elected disability retirement in lieu of “OWCP wage compensation.” It noted that 

she had filed for disability retirement on December 16, 2014 with a requested effective date of 

December 31, 2014. The employing establishment reported that OPM approved the claim on 

October 22, 2015; however, it had not been able to confirm the start date of appellant’s annuity 

with OPM, or whether she would receive interim annuity retroactively. 

On March 15, 2016 OWCP received appellant’s election form (Form CA-1105) to 

receive OPM benefits, rather FECA benefits, effective December 31, 2014. 

By letter dated March 15, 2016, OWCP informed OPM that appellant elected to receive 

OPM benefits effective December 31, 2014 in lieu of FECA compensation benefits. It requested 

OPM commence monthly annuity payments effective December 31, 2014, and to reimburse 

OWCP in the amount of $9,960.13 for FECA benefits paid during the period December 31, 2014 

through March 5, 2016. 

 

3 Appellant received wage-loss compensation for part-time disability from June 5, 2012 through March 5, 2016.
3

By notice dated April 8, 2016, OWCP made a preliminary determination that of an 

overpayment of compensation in the amount of $9,960.13 for the period December 31, 2014

through March 5, 2016 as appellant had elected OPM benefits effective December 31, 2014. It

found that she was with fault in the creation of the overpayment because she accepted a payment 

that she knew or reasonably should have known was incorrect, noting that her signed CA-1105 

election form dated March 15, 2016 retroactive to December 31, 2014 demonstrated that she was 

aware of her choice between the two benefit programs and that any FECA benefits she had 

received after December 31, 2014 would have been a prohibited dual payment. Appellant was 

informed of her options if she wished to contest the fact or amount of overpayment or request a 

waiver of recovery and was provided with an overpayment recovery questionnaire (Form 

OWCP-20). 

In an attached memorandum, OWCP explained that if there were overlapping payment 

dates from both OWCP and OPM, an overpayment would still ensue, regardless of whether or 

not appellant had actually received benefits from OPM. It noted that, although OPM indicated 

that she had not received a benefit payment yet, OWCP was still required to declare an 

overpayment for the period of dual benefits. OWCP stated that it had requested reimbursement 

from OPM for the dual benefit, but that it was still appellant’s responsibility to repay the debt. It 

determined that her total gross compensation for the period December 31, 2014 through March 5, 

2016 was $11,848.85. During this period, however, deductions were made for miscellaneous 

dental/vision premiums in the amount of $1,888.72 which was credited against the gross 

overpayment amount, bringing the net overpayment total to $9,960.13.

In an April 8, 2016 CA-110 form telephone note, OWCP’s claims examiner noted that,

although OPM disability retirement approval occurred on October 22, 2015, it was unclear when

or whether appellant was actually in receipt of OPM benefits. The claims examiner called OPM 

to clarify and was informed by OPM that as of April 28, 2016, if had paid no benefits. 

On April 29, 2016 appellant requested a telephone conference with the district office on 

the issues of fault and possible waiver of recovery of the overpayment. She contested the 

overpayment because it occurred through no fault of her own and requested a waiver, stating that 

she was not aware of any overpayment being made. 

In support of her claim, appellant submitted an April 29, 2016 overpayment recovery 

questionnaire where she argued that she was not aware of an overpayment and had not been 

receiving payment from any entity since OWCP stopped her payments. She reported that she 

had not received any money from disability retirement and repaying the amount would cause her 

severe financial hardship. 

In a June 20, 2016 CA-110 telephone note, OWCP’s claims examiner noted that 

appellant had called to report that she had received a payment from OPM, but that it had 

deducted over $9,000.00 of that payment from the gross amount. The claims examiner noted 

that no financial information was provided and that appellant should try to gather that 

information. 

In an August 1, 2016 CA-110 telephone note, the claims examiner reported that appellant 

felt that OPM should not have withheld the full amount based on a preliminary determination. 
4

Appellant reported that she had not received benefits from OPM or OWCP, and just received a 

check from OPM for $288.00, but did not understand who was paying what. The claims 

examiner informed appellant that she would try to get in touch with OPM regarding the current 

status. 

In an August 25, 2016 CA-110 telephone note, the claims examiner informed appellant 

that the claims examiner could not contact OPM. As such, she would issue a final decision on 

the overpayment and appellant could pursue her appeal rights. 

By decision dated September 28, 2016, OWCP finalized overpayment of compensation in 

the amount of $9,960.13 for the period December 31, 2014 through March 5, 2016 as appellant 

had elected OPM benefits retroactive to December 31, 2014, but remained in receipt of OWCP 

compensation benefits through March 5, 2016. It revised the preliminary determination’s finding 

of fault, explaining that she was without fault in the creation of the overpayment because it was 

reasonable that she was not or could not have been aware that she was in receipt of dual benefits 

and not entitled to the payments received. OWCP stated that, as appellant had not been paid any 

OPM benefits during the entire period of the overpayment from December 31, 2014 through 

March 5, 2016, it was reasonable to conclude that she was not aware of the prohibited dual 

payment. 

OWCP determined that the overpayment was not subject to waiver of recovery, however, 

because OPM had collected the full amount of the overpayment from the OPM annuity. It 

explained that, prior to June 20, 2016, appellant had not received any payment from OPM; 

however, OPM had recently issued retroactive OPM benefits, but the overpayment amount had 

been withheld, leaving her with only $288.00 in retirement benefits for that period. OWCP 

noted that OPM had advised appellant of the withholding of OWCP benefits based on the 

election of benefits letter OPM had received on March 15, 2016. OPM advised her that it would 

wait 30 days before issuing a check to OWCP. As such, the circumstances did not warrant 

waiver of recovery of the overpayment. 

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 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(a) of FECA provides that while an employee is receiving compensation or 

if she has been paid a lump sum in commutation of installment payments until the expiration of 

 

4

5 U.S.C. § 8102(a). 

5

Id. at § 8129(a).
5

the period during which the installment payments would have continued, the employee may not 

receive salary, pay or remuneration of any type from the United States, except in limited 

specified instances.6

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

federal retirement annuity.7 When a claimant is entitled to disability benefits under FECA and 

annuity benefits from OPM under either CSRS or FERS, the employee must make an election of 

benefits.8 The employee has the right to elect the monetary benefits that is most advantageous.9 

The election, once made, is revocable.10 Concurrent wage-loss compensation and OPM benefits 

constitute a prohibited dual benefit.11

ANALYSIS

The Board finds that the case is not in posture for decision regarding fact or amount of

overpayment for the period December 31, 2014 through March 5, 2016.12 

Appellant had been placed on periodic rolls beginning January 13, 2013 and received 

continuing payments every four weeks. By letter dated October 22, 2015, OPM notified her that 

her application for disability retirement under FERS had been approved. On December 15, 2014

OWCP received appellant’s election of OPM benefits retroactive to December 31, 2014. 

The Board notes that, at the time of OWCP’s April 8, 2016 preliminary overpayment 

determination, appellant had not yet received any benefit payments from OPM. The employing 

establishment’s December 1, 2015 letter related that it had not been able to confirm the start date 

of her annuity with OPM, or whether she would receive interim annuity retroactively. The 

requested effective date of the disability retirement was December 31, 2014, but the claim was 

not approved until October 22, 2015. In an April 8, 2016 CA-110 telephone note, an OWCP 

claims examiner related that it was unknown when OPM actually began paying benefits. 

Subsequent to the preliminary determination, appellant notified an OWCP claims 

examiner via telephone that she had received a $288.00 check from OPM, which she believed 

was the remaining amount of a retroactive payment which had deducted over $9,000.00 for the

overpayment.13 

 

6

Id. at § 8116(a).

7

Id.

8

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

9

Id.

10 20 C.F.R. § 10.421(a).

11 Supra note 6.

12 J.J., Docket No. 14-0785 (issued September 3, 2014).

13 H.T., Docket No. 16-0482 (issued July 14, 2016).
6

The Board finds that there is sufficient confusion as to whether there was an overpayment 

of compensation for the period December 31, 2014 to March 5, 2016 and whether OPM has 

already collected the overpayment from appellant as to warrant remanding the case for further 

development. OWCP procedures place the responsibility on the claims examiner to carefully 

review the file in situations where a dual benefit might possibly occur, including the 

responsibility of contacting OPM.14

As such, the Board finds that this case is not in posture for decision on the issue of 

whether an overpayment continued to exist as of September 28, 2016, the date of the finalization 

of the preliminary determination of an overpayment of compensation in the amount of $9,960.13 

for the period December 31, 2014 through March 5, 2016.15 The evidence of record does not 

clearly establish that appellant received OPM benefits and FECA benefits for the same time 

period. Although there was a payment of $288.00 to her from OPM, with some indication that 

OPM had deducted a significant amount of the overpayment, it is unclear for what period the 

deduction was made or for what amount. As such the case is premature for the Board to make a 

finding. 

Therefore, OWCP’s determination that appellant received a dual benefit and 

overpayment of compensation will be set aside.16 The case is remanded for further development. 

On remand, OWCP should consult with OPM regarding the period of retirement coverage and 

payment of benefits. After it has further developed the case record, a de novo decision shall be 

issued.17

CONCLUSION

The Board finds that the case is not in posture for decision as to whether appellant 

received an overpayment of compensation.

 

14 Supra note 8 at Chapter 2.1000.3 (February 1995).

15 Supra note 13.

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

17 As the case is not in posture regarding the fact of overpayment, the issues of waiver and recovery are moot.
7

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 for further action 

consistent with this decision of the Board.

Issued: November 16, 2017

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