United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.K., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, Fort Belvoir, VA, 

Employer 

__________________________________________ 

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Docket No. 15-1917 

Issued: January 29, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 18, 2015 appellant filed a timely appeal from a March 23, 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 OWCP properly determined that appellant received a 

$34,594.18 overpayment of compensation; (2) whether it properly determined that appellant was 

 

 1 5 U.S.C. § 8101 et seq. 

 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). One hundred and eighty days from March 23, 2015, the date of OWCP’s last decision, was 

September 19, 2015. Since using September 22, 2015, the date the appeal was received by the Clerk of the 

Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. 

The date of the U.S. Postal Service postmark is September 18, 2015, rendering the appeal timely filed. See 20 

C.F.R. § 501.3(f)(1). 
2

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

recovery of the overpayment; and (3) whether OWCP properly required repayment of the 

overpayment by deducting $445.05 from appellant’s compensation payments every 28 days. 

FACTUAL HISTORY 

OWCP accepted that on April 9, 1998 appellant, then a 51-year-old production foreman, 

sustained a low back sprain due to lifting heavy boxes. Appellant received disability 

compensation on the periodic rolls beginning June 16, 2002 and continuing. Effective 

February 1, 2009, he began to receive Social Security Administration (SSA) benefits in addition 

to FECA compensation. 

OWCP periodically required appellant to complete EN1032 forms which posed various 

questions regarding his income, employment and volunteer activities, and earnings. Each Form 

EN1032 covered the 15-month period prior to the completion of the form and asked appellant to 

certify that the information he provided was correct.3 The EN1032 forms specifically requested 

that appellant report any benefits received from SSA as part of an annuity under the Federal 

Employees’ Retirement System (FERS), but not any benefits received from SSA received due to 

employment in the private sector. The forms posed the questions, “Do you receive benefits from 

SSA as part of an annuity for federal service?” On EN1032 forms completed on March 1, 2010, 

February 9, 2011, February 8, 2012, January 31, 2013, and February 10, 2014, appellant 

responded “no” in response to this question about whether he received benefits from SSA as part 

of an annuity for federal service. On a Form EN1032 completed on March 5, 2015, appellant 

responded “yes” in response to this question and listed the benefits received from SSA as part of 

an annuity for federal service as being $2,069.00 per month. 

On October 30, 2014 SSA confirmed that appellant received SSA retirement benefits 

which included benefits based upon his federal service for the periods February 1, 2009 to 

December 31, 2011 and January 1, 2013 to October 18, 2014. The documents detailed the 

portion of SSA retirement benefits based upon appellant’s federal service that should have been 

offset against FECA compensation. OWCP failed to offset FECA compensation for the periods 

February 1, 2009 to December 31, 2011 and January 1, 2013 to October 18, 2014 to reflect this 

receipt of SSA benefits based on federal service. 

In a December 3, 2014 notice, OWCP advised appellant of its preliminary determination 

that he had received an overpayment of compensation in the amount of $34,594.18 for the 

periods February 1, 2009 to December 31, 2011 and January 1, 2013 to October 18, 2014. It 

noted that the overpayment was created because SSA benefits attributable to federal service had 

not been offset as required against appellant’s FECA compensation for these periods.4

 OWCP 

also made a preliminary determination that appellant was at fault in the creation of the 

 3

 Appellant was advised that he might be subject to criminal prosecution if he made a false statement or 

misrepresentation of a material fact in claiming a payment of benefits under FECA or fraudulently concealed or 

failed to report income or other information which could have an effect on benefits. 

4

 In its December 3, 2014 notice, OWCP provided an extensive discussion of how the overpayment was created 

during the periods February 1, 2009 to December 31, 2011 and January 1, 2013 to October 18, 2014 due to the 

failure to offset the portion of SSA benefits attributable to federal service. The record contains several worksheets 

and payment records supporting these calculations. 
3

overpayment because he made incorrect statements as to material facts on EN1032 forms which 

he knew or should have known to be incorrect. OWCP indicated that on EN1032 forms 

completed on March 1, 2010, February 9, 2011, February 8, 2012, January 31, 2013, and 

February 10, 2014, appellant responded “no” in response to a question about whether he received 

benefits from SSA as part of an annuity for federal service despite the fact that he received such 

SSA benefits for the periods covered by the forms. 

In its December 3, 2014 notice, OWCP further advised appellant that he could submit 

evidence challenging the fact, amount, or finding of fault and request waiver of the recovery of 

overpayment. It informed appellant that he could submit additional evidence in writing or at 

prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of 

the date of the written notice of overpayment. OWCP requested that appellant complete and 

return an enclosed financial information questionnaire (Form OWCP-20) within 30 days even if 

he was not requesting waiver of the recovery of overpayment. Appellant did not respond to 

OWCP’s December 3, 2014 notice within the allotted period. 

In a March 23, 2015 decision, OWCP finalized the overpayment of compensation in the 

amount of $34,594.18 for the periods February 1, 2009 to December 31, 2011 and January 1, 

2013 to October 18, 2014. It found that appellant was at fault in the creation of the overpayment, 

thereby precluding waiver of recovery of the overpayment. OWCP required repayment of the 

overpayment by deducting $445.05 from appellant’s continuing compensation payments every 

28 days. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8102 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 Section 8116 limits the right of an employee to receive compensation: 

While an employee is receiving compensation, he or she may not receive salary, pay, or 

remuneration of any type from the United States.6

 Section 10.421 of the implementing 

regulations provide that an employee may not receive compensation for total disability 

concurrently with separation pay.7

 FECA Bulletin No. 97-9 states that FECA benefits have to be 

adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a 

federal employee is part of the FERS retirement package, and the receipt of FECA benefits and 

federal retirement concurrently is a prohibited dual benefit.8 When OWCP discovers concurrent 

receipt of benefits, it must declare an overpayment of compensation and give the usual due 

process rights.9

 5

 5 U.S.C. § 8102(a). 

6 Id. at § 8116(a). 

7

 20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007). 

8

 FECA Bulletin No. 97-9 (issued February 3, 1997). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d(4) (April 1996). 
4

ANALYSIS -- ISSUE 1 

The record supports that appellant received ongoing FECA wage-loss compensation 

commencing June 16, 2002 and continuing and that he received SSA benefits commencing 

February 1, 2009. The portion of SSA benefits appellant earned as a federal employee was part 

of his FERS retirement package, and the receipt of benefits under FECA and federal retirement 

benefits concurrently is a prohibited dual benefit.10 Appellant’s FECA compensation was not 

offset until October 19, 2014. SSA notified OWCP of the applicable SSA rates for appellant and 

their effective dates. Based on these rates, OWCP was able to calculate the dual benefits 

appellant received during the periods February 1, 2009 to December 31, 2011 and January 1, 

2013 to October 18, 2014 which yielded an overpayment of compensation in the amount of 

$34,594.18. The record includes overpayment worksheets explaining the overpayment 

calculation. Therefore, OWCP properly determined that appellant received a $34,594.18 

overpayment of compensation. 

LEGAL PRECEDENT -- ISSUE 2 

 Section 8129(a) of FECA provides that where an overpayment of compensation has been 

made “because of an error of fact or law,” adjustment shall be made by decreasing later 

payments to which an individual is entitled.11 The only exception to this requirement is a 

situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery 

by the United States may not be made when incorrect payment has been made to an individual 

who is without fault and when adjustment or recovery would defeat the purpose of this 

subchapter or would be against equity and good conscience.”12 No waiver of recover of payment 

is possible if the claimant is not “without fault” in helping to create the overpayment.13

 In determining whether an individual is not “without fault” or alternatively “at fault” in 

the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations 

provide in relevant part: 

“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; or 

(2) Failed to provide information which he or she knew or should 

have known to be material; or 

 

 10 FECA Bulletin No. 97-9, supra note 8. 

 11 5 U.S.C. § 8129(a). 

 12 Id. at § 8129(b). 

 13 L.J., 59 ECAB 264 (2007). 
5

(3) Accepted a payment which he or she knew or should have 

known to be incorrect....”14

 Section 10.433(b) of OWCP’s regulations provide: 

“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 

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.”15

ANALYSIS -- ISSUE 2 

OWCP determined that appellant was at fault in the creation of the $34,594.18 

overpayment of compensation for the periods February 1, 2009 to December 31, 2011 and 

January 1, 2013 to October 18, 2014 because he made incorrect statements as to material facts 

regarding SSA benefits on EN1032 forms which he knew or should have known to be incorrect. 

It found that, due to this finding of fault, waiver of recovery of the overpayment was precluded. 

The Board finds that the evidence of record supports a finding of fault for the portion of 

the overpayment created during the periods February 1, 2009 to December 31, 2011 and 

January 1, 2013 to February 10, 2014. On EN1032 forms completed on March 1, 2010, 

February 9, 2011, February 8, 2012, January 31, 2013, and February 10, 2014, appellant 

responded “no” in response to a question about whether he received benefits from SSA as part of 

an annuity for federal service. However, he had in fact received such SSA benefits for 

February 1, 2009 to December 31, 2011 and January 1, 2013 to February 10, 2014. The EN1032 

forms advised appellant of the materiality of correctly reporting income and benefits information 

and the Board finds that he was aware or should have been aware of the need to report SSA 

retirement benefits attributable to his federal employment.16

Because OWCP properly found appellant at fault for the portion of the overpayment 

created during the periods February 1, 2009 to December 31, 2011 and January 1, 2013 to 

February 10, 2014, waiver of recovery of the portion of the overpayment created during these 

periods is precluded.17

The Board further finds that the evidence of record does not support a finding of fault for 

the portion of the overpayment created during the period February 11 to October 18, 2014. On a 

Form EN1032 completed on March 5, 2015, appellant responded “yes” in response to this 

question and listed the benefits received from SSA as part of an annuity for federal service as 

 

 14 20 C.F.R. § 10.433(a). 

 15 Id. at § 10.433(b). 

16 On appeal appellant asserted that he was not at fault in the creation of the overpayment of compensation, but he 

did not adequately explain the basis for this assertion with respect to the periods February 1, 2009 to December 31, 

2011 and January 1, 2013 to February 10, 2014. 

17 See supra notes 13 and 14. 
6

being $2,069.00 per month. Therefore, OWCP improperly found that appellant was at fault for 

the portion of the overpayment created during the period February 11 to October 18, 2014. 

Under 20 C.F.R. § 10.434, when a claimant is without fault in the creation of the 

overpayment for a given period, OWCP may only recover the overpayment, in accordance with 

section 8129(b) of FECA,18 if a determination has been made that recovery of the overpayment 

would neither defeat the purpose of FECA nor be against equity and good conscience.19 

Therefore, the case shall be remanded to OWCP for further development with respect to whether 

appellant is entitled to waiver of the recovery of overpayment under these standards for the 

period February 11 to October 18, 2014.20

CONCLUSION 

The Board finds that appellant received an overpayment of compensation in the amount 

of $34,594.18 and that he was at fault in the creation of the overpayment for the periods 

February 1, 2009 to December 31, 2011 and January 1, 2013 to February 10, 2014, thereby 

precluding waiver of recovery of the portion of the overpayment created during these periods. 

The Board further finds that appellant was not at fault in the creation of the overpayment for the 

period February 11 to October 18, 2014 and, therefore, the case is remanded to OWCP for 

further development regarding waiver of recovery of the overpayment for the portion of the 

overpayment created during the period February 11 to October 18, 2014. 

 18 5 U.S.C. § 8129(b). 

19 The guidelines for determining whether recovery of an overpayment would defeat the purpose of FECA or 

would be against equity and good conscience are set forth in 20 C.F.R. §§ 10.436 and 10.437. 

20 Given the Board’s disposition of the fault and waiver issues of this case, it is premature to consider whether 

OWCP properly required repayment of the overpayment by deducting $445.05 from appellant’s compensation 

payments every 28 days. 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 23, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed with respect to the fact and amount of the 

overpayment and it is affirmed in part with respect to fault in the creation of the overpayment. 

The case is remanded to OWCP for proceedings consistent with this decision of the Board. 

Issued: January 29, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board