United States Department of Labor

Employees’ Compensation Appeals Board

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J.S., Appellant

and

DEPARTMENT OF THE TREASURY, 

U.S. MINT, Philadelphia, PA, Employer

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Docket No. 16-1920

Issued: March 8, 2018

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 30, 2016 appellant, through counsel, filed a timely appeal from a

September 27, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.3 

 

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 5 U.S.C. § 8101 et seq.

3 The record provided the Board includes evidence received after OWCP issued its September 27, 2016 final 

overpayment determination. The Board’s jurisdiction is limited to the evidence that was in the case record at the 

time of OWCP’s final decision. Therefore, the Board is precluded from reviewing this additional evidence for the 

first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUES

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

amount of $537.41 for the period March 1 through August 20, 2016; (2) whether OWCP 

properly found appellant at fault in the creation of the overpayment; and (3) whether OWCP 

properly determined that the overpayment would be recovered by withholding $537.41 from 

appellant’s continuing compensation.

FACTUAL HISTORY

Appellant, a 66-year-old former supervisory material expediter/forklift operator, has an 

accepted occupational disease claim (Form CA-2) alleging for herniated discs at L3-4 and L4-5,

psychogenic pain, and dysthymic disorder, which arose on or about April 1, 1992.4 OWCP paid 

him wage-loss compensation beginning August 22, 1995 and placed him on the periodic 

compensation rolls effective April 15, 2007. To date, appellant continues to receive wage-loss 

compensation for temporary total disability. 

On May 25, 2016 OWCP requested information from the Social Security Administration 

(SSA) regarding whether an offset was required based upon appellant’s receipt of any agerelated SSA retirement benefits. It provided a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form for SSA to complete and return to OWCP. On 

August 1, 2016 SSA returned the completed form noting that, effective March 2016, appellant’s 

monthly SSA rate with his FERS contribution was $511.90 and the corresponding monthly rate 

without FERS was $418.70. 

Based on the information SSA provided, OWCP calculated a 28-day FERS offset of 

$86.98, which it applied to appellant’s August 21, 2016 periodic rolls payment. In an August 23, 

2016 letter, it explained that his compensation was being reduced in order to avoid a FERS/SSA 

dual benefit. 

In a separate August 23, 2016 internal memorandum, OWCP calculated a FERS offset 

for the period March 1 through August 20, 2016, which totaled $537.41. 

On August 25, 2016 OWCP issued a preliminary overpayment determination of $537.41 

for the period March 1 through August 20, 2016. It explained that the overpayment of 

compensation was because appellant had received retirement benefits concurrently with FECA 

benefits which constituted a prohibited dual benefit. Attached to the preliminary overpayment 

determination was a worksheet explaining how the overpayment was calculated. OWCP also 

advised that appellant was at fault in the creation of the overpayment. It provided him an 

Overpayment Recovery Questionnaire (Form OWCP-20) and informed him of his appeal rights. 

 

4 Effective August 22, 1995, appellant received a disability retirement through the Office of Personnel 

management (OPM). When OWCP ultimately accepted his claim in June 2003, he subsequently elected to receive 

FECA wage-loss compensation in lieu of OPM disability retirement benefits. 
3

In an August 29, 2016 letter, counsel argued that appellant was covered under the Civil 

Service Retirement System (CSRS), rather than FERS. He submitted a January 21, 2004 letter 

from OPM that identified appellant as a “civil service” annuitant under CSRS.5

On August 29, 2016 appellant telephoned OWCP (CA-110 notes) and similarly noted 

that he was not covered under FERS. He explained that his SSA payments, which began April 1, 

2016, were from private industry employment, not federal service. Appellant also noted that he 

had previously served in the military. He telephoned OWCP again on August 30, 2016 and 

reiterated that he was not under FERS, and should be listed under the “‘old system.’”

In an August 31, 2016 letter to appellant, OWCP generally explained the CSRS and 

CSRS-Offset retirement systems, in conjunction with age-related SSA benefits. It also indicated 

that he began receiving SSA benefits on March 1, 2016 at age 64. OWCP further noted that 

appellant turned 65 on April 4, 2016. 

In an August 31, 2016 letter to OWCP, counsel indicated that he reviewed appellant’s 

SSA earnings history, and in 1990, it appeared that SSA deductions were made even though 

appellant remained covered under CSRS. He also expressed disagreement with the preliminary 

determination of fault, noting: “How was [appellant] capable of determining whether [OWCP] 

paid him correctly under these circumstances?”

In a September 27, 2016 decision, OWCP finalized the preliminary determination 

regarding the fact and amount of the overpayment, as well as its finding that appellant was at 

fault in the creation of the overpayment.6 It recovered the entire $537.41 overpayment from his

periodic rolls payment for the period September 18 through October 15, 2016. 

LEGAL PRECEDENT

A FECA beneficiary may not receive wage-loss compensation concurrently with a 

Federal retirement or survivor annuity.7 To avoid payment of a dual benefit, FECA wage-loss 

compensation benefits shall be reduced by the amount of SSA benefits attributable to the 

employee’s federal service.8 However, an offset is not required where the employee beneficiary 

is covered under the CSRS and/or his SSA age-related benefits are attributable to private sector 

employment.9

 

5 A similar letter from OPM dated February 8, 2007 also identified appellant as a civil service annuitant under 

CSRS. 

6 The final overpayment decision noted that the preliminary decision, which outlined how the overpayment 

occurred, was incorporated by reference.

7 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

8

Id. at § 8116(d)(2); id. at § 10.421(d).

9 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter 

2.812.9c (May 2012); id. at Chapter 2.1000.4e(2) (January 1997).
4

ANALYSIS

The Board finds that this case is not in posture for decision. OWCP declared an 

overpayment of compensation because appellant was purportedly covered under FERS, and his 

age-related SSA retirement benefits were based in part on his federal service (FERS-based). In 

finding that appellant received a prohibited dual benefit OWCP relied, in part, on information 

provided by SSA. On August 1, 2016 SSA submitted a FERS/SSA dual benefit calculation 

which included retirement rates effective March 2016. SSA represented that a portion of 

appellant’s monthly age-related retirement benefits was based on his FERS contributions. 

However, OPM represented that his federal employment was covered under CSRS, rather than 

FERS. Thus, it is unclear from the record whether appellant was covered under FERS or 

CSRS.

10

 Moreover, the record does not document his receipt of SSA age-related retirement 

benefits for the period March 1 through August 20, 2016. The information received from SSA 

only included rate information, effective March 2016. It does not otherwise document 

appellant’s receipt of SSA age-related retirement benefits for the claimed overpayment period.

Therefore, the record does not support OWCP’s finding that appellant received a prohibited dual 

benefit.11

Accordingly, the case shall be remanded for documentation of appellant’s retirement 

system coverage, as well as proof of his receipt of SSA age-related retirement benefits.

12

 

Following this and any necessary further development, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds that the case is not in posture for decision regarding whether appellant 

received an overpayment of compensation in the amount of $537.41 for the period March 1 

through August 20, 2016.13

 

10 The record does not include a Form SF-50 (Notification of Personnel Action) indicating whether appellant was 

covered under CSRS, CSRS Offset, or FERS. In a June 23, 2003 claim for compensation (Form CA-7), appellant 

indicated that he was covered under CSRS and had been receiving a monthly annuity since August 1995. On the 

Form CA-7 (Section 10), the employing establishment indicated that it was unaware of his retirement system 

coverage as it no longer had his file. 

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

12 OWCP should obtain a complete payment history from SSA regarding the age-related benefits appellant 

reportedly received beginning March 1, 2016.

13 As the fact and amount of the overpayment is not yet established, it is premature to address the issue of fault, as 

well as the method of repayment.
5

ORDER

IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision.

Issued: March 8, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board