United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Knoxville, TN, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1935

Issued: August 13, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 13, 2017 appellant filed a timely appeal from an August 22, 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 over the merits of the case.

2

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $9,384.35 for the period November 30, 2016 through March 4, 2017 because he 

concurrently received Office of Personnel Management (OPM) retirement benefits and FECA 

 

1 5 U.S.C. § 8101 et seq.

2 The record provided to the Board includes evidence received after OWCP issued its August 22, 2017 decision. 

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

the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). 
2

benefits; and (2) whether OWCP properly found appellant at fault in creation of the overpayment, 

thereby precluding waiver of recovery of the overpayment.

FACTUAL HISTORY

On April 20, 2013 appellant, then a 58-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that his bilateral knee osteoarthritis was caused or aggravated during 

the 18 years of his federal employment as a result of multiple slips, trips, and falls he sustained 

while delivering mail. OWCP accepted the claim for bilateral knee osteoarthritis.

3

 Appellant 

stopped work on September 2, 2014 and has not returned.4

On November 4, 2014 OWCP placed appellant on the periodic compensation rolls for 

temporary total disability commencing September 2, 2014. Appellant was advised that he must 

report any retirement income received from any federal agency, as federal employees who receive 

compensation benefits under FECA are not permitted to concurrently receive benefits under the 

Civil Service Retirement System (CSRS) or the Federal Employees’ Retirement System (FERS).

In an October 3, 2016 letter, OWCP informed appellant that section 8116(d)(2) of FECA 

required that a claimant’s continuing compensation benefits be reduced if he or she begins 

receiving Social Security Administration (SSA) retirement benefits based upon his or her age and 

federal service. It notified appellant of this requirement as he was approaching his 62nd birthday, 

the minimum age at which an individual was eligible to receive SSA retirement benefits. OWCP 

informed appellant that failure to report receipt of such retirement benefits to OWCP could result 

in an overpayment of compensation, which could be subject to recovery.

In both December 29, 2016 and January 3, 2017 letters, appellant advised OWCP of his 

intention to retire from the employing establishment. He requested that OWCP forward any 

necessary forms to be removed from OWCP compensation rolls.5

In a February 27, 2017 letter, OWCP informed appellant that his period of entitlement for 

the period September 2, 2014 to February 27, 2017 had changed due to the Social Security offset 

of benefits. It advised him that employees entitled to both OWCP and OPM benefits must elect 

which benefit to receive as they are not payable for the same period of time. An election form, 

CA-1105, was enclosed. It advised that any benefits paid by OPM would be reimbursed to OPM 

from the compensation due and no benefits would be paid until OPM had been fully reimbursed.

In a memorandum of record dated March 1, 2017, OWCP indicated that OPM had advised 

that appellant had begun receiving OPM benefits without specifying a date. However, the 

 

3 The present claim was assigned OWCP File No. xxxxxx208. Appellant also has an accepted occupational disease 

claim for aggravation of left knee arthritis under OWCP File No. xxxxxx005.

4 Appellant had right knee surgeries on March 6, 2000 and November 20, 2006. He underwent left total knee 

replacement surgeries on April 21 and October 2, 2014.

5 On February 9, 2017 OWCP issued a preliminary determination that an overpayment of compensation in the 

amount of $2,379.31 occurred for which appellant was with fault as he received prohibited dual benefits from receipt 

of Social Security Act retirement benefits and FECA compensation.
3

memorandum further noted that as appellant was not receiving FECA benefits no dual benefits 

issue existed, which required an election of benefits.

On March 6, 2017 OWCP received an election of benefits form signed by appellant on 

March 3, 2017 in which he elected to receive OPM retirement benefits, effective 

November 30, 2016.

By form dated March 17, 2017, OWCP advised OPM that appellant’s entitlement to 

OWCP benefits ended on November 29, 2016, but that OWCP benefits had been paid through 

March 4, 2017. A reimbursement in the amount of $10,078.69 was therefore due from OPM.

On March 28, 2017 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $9,384.35 had been created for the period November 30, 2016 

through March 4, 2017 as appellant received both FECA wage-loss compensation benefits and 

OPM retirement benefits during this period.6 It explained that, for the period November 13 to 

December 10, 2016, appellant was overpaid for 11 days from November 30 to December 10, 2016 

or $1,170.18. Its calculation was provided. For the period December 11, 2016 to January 7, 2017, 

appellant received $2,978.64; for the period January 8 to February 4, 2017, appellant received 

$2,960.22, and for the period February 5 to March 4, 2017, appellant received $2,275.31. He was 

found at fault in the creation of the overpayment because he was aware or should have reasonably 

been aware that he was not entitled to FECA compensation on the date of his election of OPM 

retirement benefits. OWCP provided an overpayment action request and overpayment recovery 

questionnaire. Appellant was given 30 days to respond. Overpayment computer worksheets 

showing appellant’s wage-loss compensation for this period were also provided. No additional 

evidence pertaining to the overpayment was received.

By decision dated August 22, 2017, OWCP finalized the preliminary overpayment 

determination finding that appellant received of an overpayment of compensation in the amount 

of $9,384.35 and that he was at fault in the creation of the overpayment, thereby precluding waiver 

of recovery of the overpayment. The entire amount was to be withheld from appellant’s initial 

schedule award payment covering the period March 5 through August 19, 2017.7

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.8 Section 8116(a) states 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 

 

6 A worksheet indicated that, for the period March 1 through 4, 2017, an overpayment of $333.13 was created.

7 See supra note 5.

8 5 U.S.C. § 8102.
4

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.9

Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may 

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity.10 

The beneficiary must elect the benefit that he or she wishes to receive.11 OWCP procedures also 

explain that the employee must make an election between FECA benefits and OPM benefits. The 

employee has the right to elect the monetary benefit which is the more advantageous.12

ANALYSIS -- ISSUE 1

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

OWCP based its overpayment determination on its finding that appellant had received 

prohibited dual OPM and FECA benefits for the period November 30, 2016 through 

March 4, 2017. While the record reflects that appellant received FECA benefits for this period, it

has not established that he also received OPM benefits during this entire period.13 The record only 

contains a March 1, 2017 OWCP memorandum indicating that OPM annuity payments had begun 

on an unspecified date. The memorandum also lacks evidence as to the amount of OPM benefits 

appellant may have received. The Board thus finds that this memorandum is insufficient to 

establish that appellant received prohibited dual OPM and FECA benefits. 

Appellant elected OPM retirement benefits, effective November 30, 2016. However, it is 

unknown whether OPM paid appellant retirement benefits. OWCP requested that OPM commence 

retirement benefit payments and that OPM reimburse any FECA benefits paid to appellant on and 

after November 30, 2016. 

The Board thus finds that OWCP improperly determined that appellant received an 

overpayment of compensation during the period November 30, 2016 through March 4, 2017.14 

 

9

Id. at § 8116(a).

10 20 C.F.R. § 10.421(a).

11 Id.

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also 

R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued 

March 30, 1994).

13 See B.G., Docket No. 14-2002 (issued August 13, 2015).

14 R.R, Docket No. 18-0032 (issued May 3, 2018); G.M., Docket No. 17-0784 (issued August 23, 2017); D.O.,

Docket No. 15-1004 (issued July 28, 2015).
5

CONCLUSION

The Board thus finds that OWCP improperly determined that appellant received an 

overpayment of compensation during the period November 30, 2016 through March 4, 2017.15

ORDER

IT IS HEREBY ORDERED THAT the August 22, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: August 13, 2018

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

 

15 Given the disposition of issue 1, the second issue is moot.