United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.G., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

DISTRIBUTION DEPOT, Richmond, VA, 

Employer

__________________________________________

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Docket No. 17-0400

Issued: January 12, 2018

Appearances: Case Submitted on the Record

Stephen Domenic Scavuzzo, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 12, 2016 appellant, through counsel, filed a timely appeal from a June 14, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).

2

 Pursuant to 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). The 180th day from June 14, 2016, the date of OWCP’s last merit decision, was December 11, 2016. 

The Board notes, however, that December 11, 2016 fell on a Sunday. It is well established that, when a time 

limitation expires on a nonbusiness day, the limitation is extended to include the next business day. Therefore, 

because the time limitation for filing an appeal fell on a Sunday, the time period did not expire until the next 

business day, which was Monday, December 12, 2016, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(2); M.H., Docket No. 13-1901 (issued January 8, 2014); Debra McDavid, 57 ECAB 149, 150 (2005); 

Angel M. Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 427, 427-28 (1990).
2

the Federal Employees’ Compensation Act3(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 $60,029.20 overpayment of 

compensation for the period July 1, 2005 through July 25, 2015; and (2) whether OWCP 

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

precluding waiver of recovery of the overpayment. 

FACTUAL HISTORY

On April 23, 1997 appellant, then a 57-year-old hazardous materials packer, filed a 

traumatic injury claim (Form CA-1) alleging that on April 2, 1997 she sustained a right knee and 

back injury when she slipped and fell while carrying boxes. OWCP accepted the claim for 

chondromalacia of the right knee and aggravation of degenerative disc disease of the spine. 

Appellant stopped work following her injury and received intermittent wage-loss compensation. 

On March 18, 1998 she underwent surgery, stopped work, and did not return. OWCP paid 

appellant wage-loss compensation on the supplemental rolls and then placed her on the periodic 

rolls beginning July 10, 2005. 

By letter dated January 18, 2005, OWCP informed appellant that federal regulations 

required her to make an affidavit of any earnings and employment during the previous year and 

that a CA1032 form was enclosed for that purpose. It notified her that she had to completely 

answer all questions on the CA1032 form and return the statement within 30 days or her benefits 

would be suspended. Appellant signed a Form CA1032 on January 30, 2005 indicating that she 

did not receive any retirement benefits from the Social Security Administration (SSA) as part of 

an annuity for federal service. She continued to submit CA1032 forms dated March 14, 2006 

through February 12, 2015 indicating that she did not receive any retirement benefits from SSA.

4

In a December 13, 2005 action request, the employing establishment notified OWCP that 

appellant was currently 65 years and 10 months old. It reported that any SSA benefits she was 

receiving must now be considered as retirement benefits. Since appellant was an employee

under the Federal Employees Retirement System (FERS), the employing establishment reported 

that her compensation payments must now be offset by any part of her SSA retirement benefit 

that was calculated using her federal employment earnings. It requested OWCP send an SSA 

FERS offset questionnaire to SSA to inquire as to the proper offset based upon their records. 

On August 23, 2006 OWCP received a FERS/SSA Dual Benefit Calculation Form which 

related that appellant had been under the FERS retirement system since June 25, 1985. 

 

3 5 U.S.C. § 8101 et seq.

4 OWCP had regularly requested that appellant complete these CA1032 forms commencing in December 1999. 
3

In a September 7, 2014 FERS/SSA Dual Benefits Calculations worksheet, SSA provided 

appellant’s SSA rate with FERS and SSA rate without FERS from July 2005 through 

December 2013.5 

By letter dated August 25, 2015, OWCP informed appellant that she had been receiving 

dual FERS and SSA retirement benefits. It noted that her FECA benefits must be adjusted based 

on the FERS portion of her SSA retirement benefits which were attributable to federal service. 

OWCP reported that appellant’s current 28-day benefit amount was $2,474.00, but that SSA had 

determined an offset in the amount of $538.21, the amount of SSA retirement benefits 

attributable to her federal service. 

In an overpayment calculation worksheet, OWCP determined that appellant received an 

overpayment of compensation in the amount of $60,029.20 because the FERS offset had not 

been properly deducted from July 1, 2005 through July 25, 2015. In an accompanying 

August 10, 2015 FERS/SSA Dual Benefits Calculations worksheet, SSA provided her SSA rate 

with FERS and SSA rate without FERS from July 2005 through December 2014. 

By letter dated February 22, 2016, the employing establishment notified OWCP that,

while the FERS retirement offset was implemented beginning July 26, 2015, OWCP had not 

formally addressed the overpayment of compensation. It noted that OWCP calculated an 

overpayment of compensation in the amount of $60,029.20 which occurred from July 1, 2005 

through July 25, 2015, the period in which the offset was applicable, but not previously 

deducted. The employing establishment requested that OWCP formally address the 

overpayment and also noted that appellant was at fault for the overpayment as she did not report 

her receipt of SSA benefits on the requisite CA1032 forms. 

By notice dated March 22, 2016, OWCP made a preliminary determination that a

$60,029.20 overpayment of compensation was created for the period July 1, 2005 through 

July 25, 2015 as appellant was paid prohibited dual benefits, having received FECA 

compensation benefits and SSA retirement benefits without an appropriate offset.6 It found that 

she was at fault in the creation of the overpayment because she knew or reasonably should have 

known that she was accepting compensation to which she was not entitled and was aware that 

she must report any additional federal benefits she was receiving via the requested CA1032 

forms. OWCP provided her with a memorandum calculating the overpayment which showed 

monthly compensation amounts with FERS and without the FERS offset from July 1, 2005 

through July 25, 2015.

7

 

 

5 Appellant was born in January 1940 and reached her SSA full retirement age of 66 years and 6 months in 

July 2006. 

6 The preliminary determination incorrectly noted the period of the overpayment as July 1 through 

November 30, 2005. 

7

In the accompanying memorandum to the file, OWCP showed that it had calculated that for the period July 1, 

2005 through November 30, 2015 the FERS offset total amounted to $61,488.31. It then subtracted $1,459.11, the 

equivalent of three periodic rolls 28-day cycles at $486.37 per cycle, as representing a paid FERS offset for the 

period July 26 to October 17, 2015. This total resulted in the $60,029.20 overpayment of compensation.
4

OWCP requested that appellant complete the enclosed overpayment recovery 

questionnaire (OWCP-20 form) and submit supporting financial documents. It notified her that 

she had 30 days to request a telephone conference, a final decision based on the written evidence, 

or a prerecoupment hearing. OWCP further informed appellant to contact the district office if 

she had any questions or required assistance in responding to the letter. If a reply was not 

received within 30 days, it would issue a final decision based on the information of record. 

In a March 29, 2016 overpayment action request, appellant requested a prerecoupment

telephone conference on the issues of fault and waiver of recovery of the overpayment.

In an accompanying letter dated April 4, 2016, appellant contested the overpayment 

decision and finding of fault. She argued that she never made an incorrect statement as alleged 

by OWCP. Appellant noted that she received social security disability benefits as of 2002 in the 

amount of $937.00 every four weeks, and that her case worker informed her that she could 

receive both workers’ compensation and SSA benefits. She argued that she was informed that 

the amount should remain the same as long as she remained partially disabled. Appellant further 

argued that every year she provided OWCP authorization to obtain earnings data from the SSA

and, as such, believed that she was being paid properly because OWCP was checking to make 

sure everything was up to date. With respect to her responses on the CA1032 forms, she 

reported that the only funds received were workers’ compensation and SSA. Appellant stated 

that any payment provided in error was the fault of OWCP because she answered all of the 

questions presented to her. She argued that throughout the years she attempted to contact case 

workers who would not return her calls or written requests for information. Appellant assumed 

that the payments and benefits were in compliance with all government laws and procedures. 

Appellant reported that she could not repay the overpayment as she lived month-tomonth. She further reported that she and her husband were in poor health with costly medication 

payments. Appellant concluded that the overpayment occurred through no fault of her own and 

should be waived as repayment would cause her severe financial hardship. In support of her 

statement, she provided an OWCP-20 form which documented her monthly expenses to 

document financial hardship. 

A conference call was held on May 17, 2016. Appellant requested information regarding 

the social security offset. The claims examiner advised her that the amount being deducted from 

her periodic rolls was the result of her receiving social security retirement benefits. Appellant 

was advised that the overpayment was the result of her compensation not being offset once she 

reached SSA retirement age in July 2005. She indicated that the creation of the overpayment 

was OWCP’s fault as it was their responsibility to determine the correct payments. 

On June 14, 2016 appellant submitted an updated Form OWCP-20 with information 

regarding her finances and supporting documentation. 

By decision dated June 14, 2016, OWCP finalized the preliminary determination of a 

$60,029.20 overpayment of compensation. It determined that appellant was at fault in the 

creation of the overpayment because in July 2005 she reached her full retirement age and 

received social security retirement benefits under FERS, which she failed to report. 
5

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.8 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.”

9

Section 8116(d) of FECA requires that compensation benefits be reduced by the portion 

of SSA benefits based on age or death that are attributable to federal service.10 If an employee 

receives SSA benefits based on federal service, his or her compensation benefits shall be reduced 

by the amount of SSA benefits attributable to his or her federal service.

OWCP procedures provide that, while SSA benefits are payable concurrently with FECA 

benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by 

SSA benefits paid on the basis of age and attributable to the employee’s federal service.11 The 

offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as 

follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA 

on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits. 

SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA 

will also provide a hypothetical SSA benefit computed without FERS covered earnings. OWCP 

will then deduct the hypothetical benefit from the actual benefit to determine the amount of 

benefits which are attributable to federal service and that amount will be deducted from FECA 

benefits to obtain the amount of the overpayment.

12

 

ANALYSIS -- ISSUE 1

OWCP accepted that appellant sustained chondromalacia of the right knee and 

aggravation of degenerative disc disease causally related to the accepted April 2, 1997 

employment injury. The record supports that she received FECA wage-loss compensation from 

March 18, 1998 and that she received SSA disability benefits from 2002 until July 2005 when 

her disability benefits were converted to SSA retirement benefits. The portion of the SSA 

benefits appellant earned as a federal employee was part of her FERS retirement package, and 

 

8 5 U.S.C. § 8102(a). 

9

Id. at § 8129(a).

10 Id. at § 8116(d). See N.R., Docket No. 12-1853 (issued June 10, 2013). 

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

Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); OWCP does not require an election 

between FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See 

also R.C., Docket No. 09-2131 (issued April 2, 2010).

12 See L.B., Docket No. 11-2076 (issued August 29, 2012).
6

the receipt of benefits under FECA and federal retirement benefits concurrently is a prohibited 

dual benefit.13 Appellant’s FECA compensation was not offset until July 26, 2015. SSA notified 

OWCP of the applicable SSA rates for that period and their effective dates. Based on these rates, 

OWCP calculated the dual benefit appellant had received from July 1, 2005 through July 25, 

2015, which yielded an overpayment of compensation in the amount of $60,029.20. The record 

includes an overpayment worksheet explaining the overpayment calculation. 

The Board has reviewed OWCP’s calculations of the dual benefits appellant received and 

finds that OWCP properly determined an overpayment of compensation in the amount of

$60,029.20 from July 1, 2005 through July 25, 2015. 

Appellant asserted before OWCP and contends on appeal that she had been told that she 

was entitled to receive social security benefits as well as FECA benefits. 

As noted above, FECA benefits must be reduced by SSA benefits paid on the basis of age 

and attributable to the employee’s federal service.14

LEGAL PRECEDENT -- ISSUE 2

Under OWCP regulations, waiver of the recovery of an overpayment may be considered 

only if the individual to whom it was made was not at fault in accepting or creating the 

overpayment.15 The fact that the overpayment was the result of error by OWCP or another 

government employing establishment does not by itself relieve the individual who received the 

overpayment of liability for repayment if the individual also was at fault for receiving the 

overpayment.16 Each recipient of compensation benefits is responsible for taking all reasonable 

measures to ensure that payments he or she received from OWCP are proper. The recipient must 

show good faith and exercise a high degree of care in reporting events that may affect 

entitlement to or the amount of benefits. 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; (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.

17

With respect to whether an individual is without fault, section 10.433(b) of OWCP 

regulations provides that whether or not OWCP determines that an individual was at fault with 

respect to the creation of an overpayment depends on the circumstances surrounding the 

 

13 5 U.S.C. § 8116(d).

14 Supra note 10. 

15 20 C.F.R. § 10.433(a).

16 Id. at § 10.435(a).

17 Supra note 15; see Kenneth E. Rush, 51 ECAB 116 (1999). 
7

overpayment. The degree of care expected may vary with the complexity of those circumstances 

and the individual’s capacity to realize that he or she is being overpaid.18

ANALYSIS -- ISSUE 2

The Board finds that appellant was at fault in creating the $60,029.20 overpayment of 

compensation. 

The record reflects that appellant accepted payments covering the period July 1, 2005 

through July 25, 2015 which she knew or should have known to be incorrect.19 She was advised 

on multiple occasions that receipt of SSA retirement benefits would affect her entitlement to 

FECA compensation, but she continued to accept full FECA benefits during the period July 1, 

2005 through July 25, 2015 in addition to her SSA retirement benefits. 

Commencing December 13, 1999 on CA1032 forms through February 12, 2015, 

appellant was repeatedly asked if she received SSA retirement benefits as part of an annuity 

under FERS benefits from federally-assisted disability or benefit programs as this would affect 

her benefits from OWCP. She continually answered “no.” By signing these forms, appellant 

certified that all of the statements made in response to the questions on the form were true, 

complete, and correct to the best of her knowledge and belief. 

Despite being given notice that receipt of SSA benefits would reduce her entitlement to 

FECA compensation, appellant continued to accept full FECA benefits during the period July 1, 

2005 until July 25, 2015. The Board thus finds her at fault under the third standard, as she 

accepted compensation which she knew or should have known that she was not entitled to 

receive and, as such, recovery of the overpayment of compensation in the amount of $60,029.20 

may not be waived.20

On appeal, appellant continues to allege that she was not at fault in the creation of the 

overpayment as she always provided OWCP with correct information, but as noted above she did

not inform OWCP on multiple CA1032 forms issued during the relevant time period that she was 

in fact receiving SSA retirement benefits based upon her FERS annuity. 

The Board, therefore, concludes that OWCP properly determined that appellant was at 

fault in the creation of the overpayment and that waiver of recovery of the overpayment is 

therefore precluded. 

CONCLUSION

The Board finds that OWCP properly determined that appellant received a $60,029.90 

overpayment of compensation for the period July 1, 2005 through July 25, 2015 and that she was 

 

18 Id. at § 10.433(b).

19 See J.C., Docket No. 16-1889 (issued May 17, 2017). 

20 5 U.S.C. § 8129(b); supra note 15. 
8

at fault in the creation of the overpayment, thereby precluding waiver of recovery of the 

overpayment. 

ORDER

IT IS HEREBY ORDERED THAT the June 14, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 12, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board