United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.T., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, St. Louis, MO, Employer 

__________________________________________ 

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Docket No. 16-1393 

Issued: March 14, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 20, 2016 appellant filed a timely appeal from a December 22, 2015 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.2

ISSUES 

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

amount of $1,441.50 for the period June 1, 2013 to March 3, 2015 as she received retirement 

benefits concurrently with FECA compensation benefits; and (2) whether OWCP properly found 

her at fault in creation of the overpayment. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant timely requested oral argument before the Board. By order dated December 19, 2016, the Board 

exercised its discretion and denied the request, finding that the issue could be adequately adjudicated based on a 

review of the case record. Order Denying Oral Argument, Docket No. 16-1393 (issued December 19, 2016). 
2

FACTUAL HISTORY 

OWCP accepted that on June 9, 2005 appellant, then a 54-year-old nurse, twisted her 

back as a falling patient grabbed her to steady himself, causing a lumbosacral sprain/strain and 

an aggravated L4-5 herniated disc with lumbar myelopathy. She stopped work on June 9, 2005 

and returned to full-time light-duty work on June 13, 2005. As of July 10, 2006, appellant 

worked as a staff nurse (discharge planner) at retained pay. The job required sedentary clerical 

duties within her physical restrictions. 

By decision issued September 22, 2006, OWCP determined that appellant’s actual 

earnings in the discharge planner position fairly and reasonably represented her wage-earning 

capacity. It calculated that appellant had two percent loss of wage-earning capacity, entitling her 

to $52.83 every four weeks in wage-loss compensation. The first compensation check covered 

the period July 9 to September 30, 2006. OWCP included a Form EN1049, which stated, “you 

may not receive OWCP benefits for loss of wage-earning capacity for the same time period as 

receiving OPM benefits. If you receive any benefits from OPM, you should advise this office 

immediately. You will be asked to make an election between the two benefits.” 

Appellant worked as a discharge planner at the employing establishment through 

June 26, 2008. She received wage-loss compensation under the wage-earning capacity 

determination and for periodic medical appointments.3 On April 13, 2009 appellant was 

reassigned as a nurse performing clerical duties, at the same rate of pay as the discharge planner 

position. 

The record establishes that appellant retired on May 31, 2013. Beginning June 1, 2013 

appellant received retirement benefits through the Office of Personnel Management (OPM). 

In a March 19, 2015 letter, OWCP notified appellant that she was entitled to wage-loss 

compensation beginning June 1, 2013. It instructed her to elect either FECA benefits or OPM 

retirement payments to avoid a prohibited dual benefit. 

On July 7, 2015 an OPM official confirmed that appellant was receiving monthly OPM 

retirement benefits from June 1, 2013 onward. 

On July 28, 2015 appellant elected to receive OPM benefits, effective July 16, 2015. She 

telephoned OWCP on August 4, 2015, stating that she was unsure if she had chosen the proper 

election date. OWCP sent appellant a new election form to submit should she wish to change her 

date of election. On August 10, 2015 appellant elected to receive OPM retirement benefits with 

an effective date of June 1, 2013. 

 3

 Appellant stopped work on June 26, 2008. She underwent right hip arthroplasty on an unspecified date. 

Appellant filed a claim for a recurrence of disability (Form CA-2a) on July 18, 2008. OWCP developed the claim as 

a request for modification of the September 22, 2006 wage-earning capacity determination. By decision dated 

September 3, 2008, it denied modification of the wage-earning capacity determination. In a June 23, 2009 letter, 

appellant requested reconsideration, contending that the accepted June 9, 2005 incident also caused a right hip 

injury. By decision dated September 2, 2009, OWCP denied modification of its prior decision, finding that 

appellant had not established a material worsening of the accepted injury. 
3

In an August 18, 2015 memorandum and accompanying August 4, 2015 worksheet, 

OWCP calculated that from June 1, 2013 to March 7, 2015, appellant was paid $1,441.50 in 

FECA wage-loss compensation benefits on the supplemental rolls, during which time she also 

received OPM retirement benefits. 

By notice dated September 3, 2015, OWCP advised appellant that it made a preliminary 

finding of an overpayment of compensation in the amount of $1,441.50 for the period June 1, 

2013 to March 3, 2015, as she had received OPM retirement benefits and FECA payments 

concurrently. It made the preliminary finding that appellant was at fault in creating the 

overpayment, as she accepted compensation payments that she knew or reasonably should have 

known were incorrect. OWCP afforded appellant 30 days to submit information regarding her 

income, assets, and expenses, request a prerecoupment hearing, or request a conference. It 

enclosed an overpayment recovery questionnaire (Form OWCP-20). 

Appellant did not respond to the preliminary notice of overpayment.4

 

By decision dated December 22, 2015, OWCP finalized the $1,441.50 overpayment for 

the period June 1, 2013 to March 3, 2015. It found that appellant had received FECA benefits 

concurrently with OPM retirement benefits for this period, a prohibited dual benefit. OWCP 

found appellant at fault in creating the overpayment as she had accepted FECA payments while 

in simultaneous receipt of OPM retirement payments. It further found that, as appellant was at 

fault in creating the overpayment, it was not subject to waiver. OWCP directed recovery of the 

overpayment by a single payment of $1,441.50. 

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 duty.5 FECA, however, also places limitations on an employee’s right to receive 

compensation benefits. Section 8116 provides that, while an employee is receiving benefits, he 

or she may not receive salary, pay, or remuneration of any type from the United States, except in 

limited circumstances.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 are most advantageous.9 

 4

 Appellant submitted May 29, 2015 chart notes, received by OWCP on November 30, 2015. These documents 

do not address the overpayment issue. 

5

 5 U.S.C. § 8102(a). 

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. 
4

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

constitute a prohibited dual benefit.11

ANALYSIS -- ISSUE 1 

Appellant began receiving wage-loss compensation under FECA on July 9, 2006 

pursuant to a September 22, 2006 wage-earning capacity determination. Her continuing payment 

every four weeks began at a net amount of $52.83. On August 10, 2015 appellant elected to 

receive OPM benefits effective June 1, 2013. 

The evidence reflects that appellant received $1.441.50 in compensation benefits from 

June 1, 2013 to March 7, 2015, and that she also received OPM retirement benefits for this 

period. This is based on OWCP’s August 18, 2015 memorandum and accompanying August 4, 

2015 worksheet. However, the period of overpayment OWCP used in its September 3, 2015 

preliminary notice and December 22, 2015 decision ran from June 1, 2013 to March 3, 2015, 

four days less than the period for which OWCP provided a complete calculation. It did not 

explain why it changed the end date of the overpayment period from March 7, 2015 to 

March 3, 2015. Therefore, the Board finds that it is not clear as to whether the amount of the 

overpayment remains accurate. 

As such, the Board thus affirms in part the December 22, 2015 decision as to fact of 

overpayment, but remands for further development regarding the amount of the overpayment. 

After such further development as necessary, OWCP shall issue an appropriate decision as to the 

amount of the overpayment. 

As the case is not in posture for a decision regarding the amount of the overpayment, it is 

premature for the Board to address the issue of fault. 

The Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery 

from continuing compensation under FECA.12 Appellant is not in receipt of continuing 

compensation under FECA. 

On appeal, appellant asserts that she contacted OWCP some months after retiring and 

“requested to return check,” but that an OWCP claims examiner instructed her not to. The Board 

notes that the record does not confirm this conversation. 

CONCLUSION 

The Board finds that OWCP has established fact of overpayment. The Board further 

finds that the case is not in posture for decision regarding the amount of overpayment or the 

issue of fault. 

 10 20 C.F.R. § 10.421(a). 

11 5 U.S.C. § 8116(a). 

12 Judith A. Cariddo, 55 ECAB 348 (2004). 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 22, 2015 is affirmed in part regarding fact of 

overpayment and set aside in part regarding the amount of the overpayment. The case is 

remanded to OWCP for additional development consistent with this opinion. 

Issued: March 14, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board