United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.G., Appellant 

and 

SOCIAL SECURITY ADMINISTRATION, 

HEADQUARTERS, Baltimore, MD, Employer 

__________________________________________ 

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Docket No. 15-1116 

Issued: February 25, 2016 

Appearances: Case Submitted on the Record

Anthony Grande, for the appellant

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 April 21, 2015 appellant, through his representative, filed a timely appeal from a 

March 17, 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. 

ISSUES 

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

amount of $49,769.17 for the period August 1, 2004 through September 20, 2014; (2) whether 

OWCP abused its discretion in denying waiver of the $49,769.17 overpayment; and (3) whether 

it properly determined that the overpayment should be collected by deducting $5,000.00 every 

28 days from appellant’s continuing compensation payments. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On November 10, 1998 appellant, then a 56-year-old special agent in charge, filed a 

traumatic injury claim (Form CA-1) alleging that on November 2, 1998 he sustained a 

concussion when he landed on his head during a Red Man training session. OWCP accepted the 

claim for concussion and postconcussion syndrome. Appellant stopped work and received wageloss compensation benefits for which he was placed on periodic rolls.2

 

By letter dated July 7, 2014, OWCP notified appellant that he was approaching his 62nd

birthday, the minimum age at which an individual is eligible to receive Social Security 

Administration (SSA) retirement benefits. It explained that if he had been approved for SSA 

retirement benefits, or was currently receiving them, to contact the district office immediately in 

order to make the necessary adjustments to his compensation benefits. 

In a July 7, 2014 (Form CA-110) telephone note, appellant called OWCP regarding the 

July 7, 2014 letter stating that he was unsure how his SSA benefits would affect his 

compensation benefits. 

In an August 29, 2014 Federal Employees’ Retirement System (FERS) SSA Dual 

Benefits Calculations worksheet, SSA provided appellant’s SSA rate with FERS and SSA rate 

without FERS from August 2004 through December 2013. It noted no offset for the period of 

July 2007 through April 2008 due to receipt of disability benefits. Appellant’s date of birth was 

incorrectly recorded as April 7, 1952. 

OWCP provided a worksheet where it calculated the FERS offset by subtracting the SSA 

rate without FERS from the SSA rate with FERS to get the monthly FERS offset. The monthly 

FERS offset amount was multiplied by 12 and divided by 13 to calculate FERS offset for the 

28-day compensation cycle. OWCP calculated the overpayment by adding FERS offset by the 

number of days overpaid to arrive at $49,769.17. 

By letter dated September 15, 2014, OWCP informed appellant that his current monthly 

benefit amount was $2,274.30, but that SSA had determined that he would only be entitled to 

$1,751.90 as his federal service increased his monthly social security payment by $522.40. It 

noted that this difference of $522.40 as the portion of social security benefits attributed to federal 

service and was the amount that must be offset against his compensation benefits. OWCP 

explained that since social security benefits were paid monthly (12 payments per year), and 

compensation benefits were paid every 28 days (13 payments per year), the monthly offset 

amount of $522.40 would be adjusted to a 28-day payment cycle of $482.22. Accordingly, the 

offset of appellant’s compensation payments in the amount of $482.22 would begin with his 

payment dated October 18, 2014 and his new net compensation would be $6,921.90. 

 2

 The Board notes that all fiscal forms pertaining to benefits submitted by appellant note his date of birth as 

July 4, 1942. Appellant’s FECA Automated Compensation Payment System reports, for which he was placed on 

periodic rolls, documented his date of birth as July 4, 1952 for the period November 2, 1998 through 

September 12, 2014. 
3

By notice dated October 1, 2014, OWCP made a preliminary determination that an 

overpayment of $49,769.17 of compensation was created for the period August 1, 2004 through 

September 20, 2014 as appellant was paid dual compensation under FECA and SSA without an 

appropriate offset.3

 It found that he was at fault in the creation of the overpayment because he 

knew or reasonably should have known that he was accepting compensation to which he was not 

entitled and was aware that he must report any additional federal benefits he was receiving via

the requested (Form CA-1032). OWCP provided appellant with an overpayment calculation 

worksheet and his July 11, 2014 Form CA-1032, which indicated that he was not receiving an 

annuity from the SSA. A fiscal pay rate memorandum was provided which showed monthly 

compensation amounts with FERS and without FERS from August 1, 2004 through 

September 20, 2014. The period July 1, 2007 through April 30, 2008 was not calculated in the 

offset. OWCP memorandum noted that the offset did not apply because of disability benefits 

received. 

OWCP requested that appellant complete the enclosed overpayment recovery 

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

he 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 he 

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 in file. OWCP mailed 

the preliminary determination to appellant’s address of record and his then-counsel on record. 

On October 15, 2014 appellant authorized his son to represent him in his workers’ 

compensation claim. 

By letter dated October 15, 2014, appellant’s representative argued that appellant was not 

at fault for the overpayment and the full amount should be waived. He stated that he had called 

OWCP and spoke with Valerie Fleming to explain that he was unsure how to complete the 

OWCP-20 form and was advised to do the best that he could.4

 The representative explained that 

appellant was a senior citizen with a certified, permanent brain injury and a permanent cognitive 

disability which resulted in his inability to return to employment with the SSA. Appellant was 

denied employment following his injury in 1998 because he could not understand the rules and 

regulations associated with SSA as defined by OWCP’s independent medical examiner. The 

representative argued that appellant could not be at fault for the overpayment as his disability 

prevented him from understanding the regulations cited pertaining to the CA-1032 form. He 

noted that appellant’s prior counsel had previously submitted a proper letter of representation 

and was copied on official correspondence sent from OWCP prior to appellant’s 62nd birthday. 

Appellant’s prior counsel never withdrew his representation, but was not copied on the Form 

CA-1032’s which were sent to appellant, including the July 11, 2014 CA-1032 form used by 

OWCP to make its fault finding. The representative argued that this error prevented him from 

providing assistance with respect to the issue in question. 

 3

 OWCP preliminary determination stated, “If you have a disability (a substantially limiting physical or mental 

impairment), please contact our office claims examiner for information about the kinds of help available, such as 

communication assistance (alternate formats or sign language interpretation), accommodations, and modifications.” 

4

 A Form OWCP CA-110 note documents this conversation. 
4

Appellant’s representative stated that OWCP should have known appellant was born on 

July 4, 1942 and not July 4, 1952, as provided in their supporting evidence which accompanied 

the overpayment letter. He stated that appellant’s federal employers were required to have 

appellant’s date of birth and age records which would demonstrate whether his prior federal 

employment would qualify him for SSA retirement benefits. The representative noted that 

OWCP sent letters to appellants when they approached their 62nd birthday for the purpose of 

avoiding offset issues. However, because OWCP incorrectly documented appellant’s date of 

birth, he did not receive this letter until he was 72 years old, resulting in 10 years of overpayment 

through no fault of his own. He concluded that because of appellant’s mental disability and the 

fact that the employing establishment knew he qualified for SSA, OWCP should have written 

SSA and asked if they were paying benefits. 

On October 29, 2014 appellant, through his representative, requested a prerecoupment 

hearing before the Branch of Hearings and Review. He disputed the amount of overpayment 

stating that it occurred through no fault of his own and requested a waiver of recovery. 

Appellant argued that he was without fault because he completely and accurately disclosed the 

benefits received more than 10 years ago. 

By letter dated January 20, 2015, OWCP notified appellant that his hearing was 

scheduled for March 18, 2015. In a February 3, 2015 Form OWCP CA-110 telephone note, 

appellant’s representative informed the claims examiner that they would be unable to attend the 

hearing on that date and requested review of the written record.5

 

By letter dated February 4, 2015, OWCP sent notice that the request for a review of the 

written record had been granted and that appellant would be afforded 30 days to submit any 

written evidence or argument relevant to his disagreement with the overpayment and the finding 

of fault. Appellant was also asked to submit a Form OWCP-20 Overpayment Recovery 

Questionnaire with supporting financial documentation to support any waiver. He was advised 

that under 20 C.F.R. § 10.438, failure to submit the requested information would result in denial 

of the waiver.6

By letter dated February 20, 2015, appellant’s representative reported that he requested 

help from the claims examiner regarding the OWCP-20 form twice by telephone and once by 

written letter on October 15, 2015. He stated that appellant has a disability and requested 

assistance as offered on OWCP development letters. However, OWCP was unable to assist 

appellant in completing the form which he submitted to the best of his ability. The 

representative argued that some of the information requested on the OWCP-20 form was in 

conflict with appellant’s financial situation since most of his assets were placed in an irrevocable 

trust involving multiple people who were not involved in the claim. He stated that appellant’s 

income was placed in a trust and used to pay for his and his wife’s bills and medical expenses. 

 5

 By letter dated February 6, 2015, then-counsel for appellant requested that the oral hearing be changed to review 

of the written record. He withdrew his representation and stated that appellant’s representative should be provided 

all direct communications thereafter. 

6

 The letter stated, “If you have a disability (a substantially limiting physical or mental impairment), please 

contact our office claims examiner for information about the kinds of help available, such as communication 

assistance (alternate formats or sign language interpretation), accommodations, and modifications.” 
5

The representative explained that a labor agreement protected appellant from any deductions 

made on these assets. He requested OWCP inform him immediately if they needed additional 

financial information beyond what was written in the statement and the OWCP-20 form. 

Appellant’s representative argued that an overpayment likely did not occur as evidenced 

by a Form SSA-1826 received in appellant’s OWCP file on November 13, 2008 which noted that 

appellant had no SSA earnings. He further argued that an OWCP memorandum failed to explain 

why the prior SSA-581 forms failed to indicate the same results. The representative reiterated 

that appellant was not at fault for the overpayment as he qualified for social security in 

August 2004 and notified OWCP multiple times that he was receiving social security benefits. 

He also informed OWCP that appellant’s date of birth was off by 10 years in over a dozen 

corrections and notices via SSA, OWCP-20 forms, employment records, and appellant 

corrections. Moreover, appellant again alerted OWCP to the issue when he received their letter 

informing him of his upcoming 62nd birthday. 

Appellant’s representative argued that the overpayment should be waived based on 

detrimental reliance as appellant used substantial funds to help others and would not have done 

so had he known OWCP was paying him incorrectly. The issue of detrimental reliance was 

exacerbated because of appellant’s cognitive impairment and appellant donated a large portion of 

his income to charity, family members, wounded warriors, strangers, and those in hospice. The 

representative explained that appellant’s primary responsibility was to support his wife and he 

would have distributed his money differently had he known of the overpayment. He stated that 

interest alone during the 10-year overpayment period would exceed the overpayment amount if 

invested in the S&P 500 which is where appellant invested his retirement monies before entering 

a trust. The representative stated that appellant could submit additional evidence which was not 

requested in the OWCP-20 form and, if such additional evidence was needed, he requested 

OWCP set up a conference call so that they could explain to him what was required to prove 

appellant’s case. 

Appellant submitted an OWCP-20 form dated February 20, 2015 which stated that his 

monthly earnings included $2,169.00 in social security benefits and $2,300.00 in retirement 

pension benefits pursuant to a collective bargaining agreement. With respect to available funds, 

he stated that his assets had been transferred into a trust removing all of his rights of ownership 

to the assets and trust. 

Appellant also submitted multiple documents in support of the arguments made on his 

behalf. In a September 12, 2011 OWCP decision, he was deemed totally disabled for all work as 

his condition not expected to improve. The decision placed the case in a permanent status based 

on the July 13, 2011 medical report from Dr. Michael Myers, a Board-certified surgeon, who 

found that appellant was permanently disabled due to his work-related brain injury. 

Multiple SSA-581 forms were submitted dated June 7, 2002 through July 12, 2011, 

which noted appellant’s birthday incorrectly as July 4, 1952. In SSA-581 forms dated June 7, 

2002, June 30, 2003, May 12, 2007, June 20, 2008, and June 24, 2010, appellant notified OWCP 

that the correct date of birth was July 4, 1942. In a Form CA-1032 received on May 16, 2006 he 

informed OWCP that he was receiving social security benefits. In an itemized statement of 
6

earnings SSA-1826, received on November 13, 2008, SSA notified DOL that appellant had no 

earnings reported for the period July through December 2007. 

By decision dated March 17, 2015, OWCP found that there was an overpayment in the 

amount of $49,769.17 for the period August 1, 2004 through September 20, 2014 as appellant 

was paid dual compensation under FECA and SSA without an appropriate offset. It modified the 

preliminary decision, finding that he was without fault in the creation of the overpayment 

because he was not and could not have been aware that he was not entitled to the payment 

received. OWCP stated that a May 14, 2007 medical report from Dr. Myers indicated that 

appellant had cognitive difficulties since the date of the work injury and trouble following 

instructions. Dr. Myer’s July 13, 2011 report explained that appellant had cognitive confusion 

and was permanently disabled due to the brain injury. For the medical reasons related to the 

brain injury, the hearing representative found that appellant did not have the requisite knowledge 

to know he was completing the CA-1032 form incorrectly and receiving an overpayment. 

OWCP further determined that the overpayment was not subject to waiver because 

appellant failed to establish that recovery would defeat the purpose of FECA or be against equity 

and good conscience. The hearing representative stated that no evidence was provided to 

support that appellant’s reliance on the overpaid compensation was the sole reason he placed his 

money in a trust or provided financial assistance to family members and charities. It also stated 

that appellant was advised twice that he would need to submit financial documentation in support 

of a waiver, but provided none to indicate that repayment would cause a hardship. The hearing 

representative noted that not listed on the OWCP-20 form was the $6,997.58 net amount he 

received every 28 days from OWCP which brought his monthly income to $11,466.58. 

Appellant did not identify any assets or expenses, stating “A majority [appellant’s] assets have 

been transferred into a trust removing all of his rights of ownership to the assets and the trust.” 

As no expenses were documented, OWCP found that appellant’s monthly income of $11,466.58 

exceeded the resource base for an individual with a spouse and exceeded his documented 

ordinary and necessary monthly expenses by more than $50.00. It determined that appellant 

could repay the overpayment by deducting $5,000.00 from continuing compensation every 28 

days. 

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.7

 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.”8

 7

 5 U.S.C. § 8102(a). 

8 Id. at § 8129(a). 
7

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.9 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.10 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 compensation payable.11

A final decision of OWCP shall contain findings of fact and a statement of reasons.12 

With respect to overpayment decisions, OWCP must provide clear statements showing how the 

overpayment was calculated.13 Its regulations on the recovery of overpayments provide that 

before collecting the overpayment, it must provide the claimant with written notice of the fact 

and amount of the overpayment, the finding of fault, right to submit evidence challenging the 

fact, amount or finding of fault, and the right to request waiver of the overpayment.14 

ANALYSIS -- ISSUE 1 

The Board finds the case not in posture for decision regarding whether OWCP properly 

determined that appellant received a $49,769.17 overpayment of compensation.15 With respect 

to the fact and amount of this claimed overpayment, OWCP has not provided adequate findings 

of facts or clear reasoning which would allow appellant to understand the precise defect of the 

claim and the kind of evidence which would tend to overcome it.16 It found that appellant 

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

10 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). 

11 See W.C., Docket No. 15-1280 (issued November 13, 2015). 

12 20 C.F.R. § 10.126. 

13 James Tackett, 54 ECAB 611 (2003); Sandra K. Neil, 40 ECAB 924 (1989). 

14 20 C.F.R. § 10.431. 

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

16 See James D. Boller, Jr., 12 ECAB 45, 46 (1960). 
8

received a $49,769.17 overpayment of compensation because he received dual benefits from 

FERS and SSA between August 1, 2004 and September 20, 2014. OWCP did not adequately 

explain how this finding was supported by documents of record. The record does not contain 

any document from the SSA establishing that appellant was receiving SSA benefits or indicating 

a start date of August 1, 2004, or otherwise, for such benefits. The record contains a FERS SSA 

Dual Benefits Calculations Fax Transmittal which was completed on August 29, 2014 by an SSA 

official. It listed August 2004 through December 2013 for receipt of SSA benefits with FERS 

and SSA benefits without FERS. The remarks noted that the offset did not apply for the period 

July 2007 through April 2008 due to disability benefits. The record contains an OWCP 

worksheet which notes that SSA benefits in the amount of $49,769.17 were not offset against 

FECA benefits for the period of August 1, 2004 to September 20, 2014. The worksheet provided 

the monthly benefit received with and without FERS and provided a calculation to determine the 

28-day offset amount for the 11 periods noted. The calculations contained in the worksheets are 

not supported by the SSA documents of record. The basis for the determination of fact and 

amount of overpayment has not been adequately explained by OWCP. 

Moreover, the record contains an SSA itemized statement of earnings SSA-1836 received 

by OWCP on November 13, 2008. SSA notified OWCP that appellant did not obtain earnings 

for the period July 2007 through December 2007. OWCP worksheet provided indicates that no 

monthly offset is required for the period July 1, 2007 through April 30, 2008 due to disability 

benefits. As appellant was placed on periodic rolls beginning November 2, 1998, it is unclear 

why he was not paid FERS benefits from July 2007 through April 2008, but received the benefit 

beginning in April 2004 through September 2014. It is unclear whether FERS benefits were 

received for the larger period in question. Furthermore, as the record indicates that appellant 

provided OWCP annual authorization to obtain earnings data from SSA since before the start of 

the overpayment in 2004, the record fails to document that FERS benefits were received 

beginning August 2004 through SSA statement of earnings, particularly of importance 

considering OWCP should have received these statements, and been notified by SSA annually 

that appellant was in receipt of dual benefits. 

In the case of J.J., the Board remanded the case to OWCP for further development 

because OWCP did not adequately explain its finding that appellant received dual benefits from 

FERS and SSA because the finding was not supported by the documents of record.17 Similarly, 

in this case, it is unclear as to how OWCP determined that he received an overpayment of 

compensation for the period in question as the evidence of record lacks documentation 

establishing receipt of social security benefits without a FERS offset.18 Neither SSA nor OWCP 

provided a complete payment history substantiating appellant’s receipt of SSA age-related 

benefits during the purported overpayment period August 1, 2004 through September 20, 2014.19 

 17 Supra note 15. 

18 N.J., Docket No. 13-2164 (issued April 18, 2014). 

19 A.P., Docket No. 12-122 (issued May 7, 2012). 
9

OWCP finalized its March 17, 2015 decision without weighing the evidence of and without 

making findings of fact with respect thereto.20 

The case will be remanded to OWCP for the purpose of providing adequate findings of 

fact, supported by appropriate documents, to support its determination that appellant received a 

$49,769.17 overpayment of compensation. On remand, OWCP should obtain a complete 

payment history from SSA regarding the age-related benefits he reportedly received beginning 

on August 1, 2004. After completion and development directed by the Board, OWCP shall issue 

a de novo decision regarding this overpayment matter. 

CONCLUSION 

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

received an overpayment of compensation in the amount of $49,769.17 for the period August 1, 

2004 through September 20, 2014. As the amount of the overpayment is not yet established, it is 

premature to address the issues of fault, waiver, and recovery. 

ORDER 

IT IS HEREBY ORDERED THAT the March 17, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside on the issues of fact and amount of overpayment. 

The case is remanded for further action consistent with this opinion. 

Issued: February 25, 2016 

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 

 20 A claimant is entitled to an adequate statement of reasons with respect to any final decision by OWCP. 

20 C.F.R. § 10.126. See also L.D., Docket No. 12-1408 (issued April 26, 2013).