United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.U., Appellant

and

U.S. POSTAL SERVICE, LINDA MAR 

STATION, Pacifica, CA, Employer

__________________________________________

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Docket No. 17-1281

Issued: April 2, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 May 22, 2017 appellant, filed a timely appeal from March 17 and April 27, 2017 merit 

decisions 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $48,300.57 for the period January 1, 2011 to 

April 2, 2016; (2) whether OWCP properly determined that appellant received an overpayment of 

compensation in the amount of $1,519.79 for the period June 30 to August 20, 2016; and 

(3) whether OWCP properly determined that appellant was at fault in the creation of the 

overpayments of compensation in the amount of $48,300.57 and $1,519.79, thereby precluding 

waiver of recovery of the overpayments. 

 

1 5 U.S.C. § 8101 et seq. 
2

On appeal, appellant contends that she is not at fault in the creation of the overpayments as 

she was misled by OWCP, the Social Security Administration (SSA), and the Office of Personnel 

Management (OPM). 

FACTUAL HISTORY

OWCP accepted that on October 26, 1991 appellant, then a 42-year-old mail carrier, 

sustained a back strain as a result of tripping on a sidewalk while walking with her mailbag. It 

paid wage-loss compensation and medical benefits. On November 27, 2006 OWCP accepted a 

recurrence of disability from April 27 to July 22, 2006 and paid additional wage-loss compensation

benefits. On September 15, 2010 it expanded acceptance of appellant’s claim to include 

displacement of the lumbar intervertebral disc without myelopathy and paid compensation 

benefits. By decision dated March 14, 2011, OWCP reduced her compensation, effective that date,

based on her capacity to earn wages in a constructed position of floral designer (retail trade). It

paid appellant compensation for partial disability on the supplemental rolls beginning March 14, 

2011, and placed her on the periodic rolls beginning March 31, 2011. 

In EN1032 forms signed by appellant on December 27, 2011, December 28, 2012,

January 3, 2014, January 1, 2015, and January 5, 20162she responded “NO” to the question of 

whether she received benefits from SSA as part of an annuity for federal service. By signing the 

forms, appellant certified that all the statements made in response to the questions on the form 

were true, complete, and correct to the best of her knowledge and belief. In December 10, 2012, 

December 18, 2013, and December 16, 2014 letters accompanying the EN1032 forms, she was 

advised that she “must report to OWCP ... any income or change in income from 

Federally[-]assisted disability or benefit programs” as this information would be used to decide 

whether she was entitled to continue receiving these benefits or whether her benefits should be 

adjusted. 

In a facsimile transmittal dated January 21, 2016, OWCP requested SSA to provide 

information regarding any dual benefits appellant may have received. 

On March 29, 2016 SSA submitted a form which showed SSA benefit rates with a Federal 

Employees Retirement System (FERS) offset and without a FERS offset from January 2011

through December 2015. OWCP then calculated wage-loss compensation benefits that appellant 

should have received with appropriate offset. 

In a notice dated April 29, 2016, OWCP advised appellant of its preliminary determination 

that she received a $48,300.57 overpayment of compensation for the period January 1, 2011 to 

April 2, 2016 due to the failure to offset her FECA benefits for SSA benefits she received. It found 

appellant at fault in the creation of the overpayment because she had made statements on the Form 

EN1032 which she knew or should have known were incorrect, failed to provide information 

which she knew or should have known was material, and accepted payments which she knew or 

should reasonably have known were incorrect. OWCP advised her that she could submit evidence 

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

 

2 Appellant actually listed the date that she signed the form, sent to her on December 12, 2015, as “January 5, 2015.” 

From the context of the evidence, the date should have been January 5, 2016.
3

Additionally, it informed appellant that, within 30 days, she could request a telephone conference, 

a final decision based on the written evidence, or a prerecoupment hearing. OWCP requested that 

she complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit 

supporting financial documentation. 

On May 6, 2016 appellant requested a telephone conference with OWCP. She requested 

waiver of recovery as she was not at fault in the creation of the overpayment. In a May 17, 2016 

letter, appellant noted that, upon her completion of an employee rehabilitation program, the 

director of the program specifically told her that the amount of money she would receive from the 

Department of Labor (DOL) was set even if she started a different higher paying job. She further 

noted that an SSA official told her that the amount of money she received from SSA had nothing 

to do with DOL. Appellant thought that she was properly informed based on the information she 

received from two official departments. She contended that she was not hiding anything on the 

forms. 

Appellant submitted a completed Form OWCP-20, on which she reported total monthly 

income of $1,054.00 in SSA benefits. Her reported monthly expenses totaled $1,820.00. 

Appellant also reported $6,000.00 in assets, including checking and savings accounts and other 

personal property and other funds.

On July 15, 2016 appellant retroactively elected to receive OPM retirement benefits in lieu 

of FECA benefits, effective June 30, 2016. She continued to receive compensation benefits on the 

periodic rolls in the amount of $1,519.79 through August 20, 2016. 

In an August 19, 2016 letter, appellant contended that she was underpaid as she received 

approximately $1,500.00 a month in compensation benefits from DOL for one year and only 

received $1,000.00 a month in benefits from SSA beginning January 1, 2011. 

In a March 15, 2017 notice, OWCP advised appellant of its preliminary determination that 

she received a $1,519.79 overpayment of compensation for the period June 30 to August 20, 2016,

because she had received both FECA and OPM benefits for the same period. Appellant was found 

at fault in creating the overpayment because she was aware or should have reasonably been aware 

that compensation and retirement benefits were not payable concurrently. She was advised of 

rights she could exercise in an attempt to overturn the preliminary finding, including the right to 

request a telephone conference. OWCP requested that appellant complete the enclosed Form 

OWCP-20 and submit supporting financial documents.

On March 17, 2017 appellant participated in a telephone conference with an OWCP claims 

examiner regarding the $48,300.57 overpayment preliminary determination. She acknowledged 

that she understood the principles of a FERS offset. 

By decision dated March 17, 2017, OWCP finalized its preliminary determination that 

appellant received a $48,300.57 overpayment of compensation for the period January 1, 2011 

through April 2, 2016. It found that she was at fault in the creation of the overpayment, thereby 

precluding waiver of recovery of the overpayment. OWCP requested that appellant submit the full 

amount of the overpayment or contact it within 30 days to make appropriate arrangements for 

recovery.
4

By letter dated March 21, 2017, the employing establishment submitted a notification of 

personnel action (Form SF-50) dated August 2, 2016 which indicated that appellant had retired 

effective June 30, 2016 and that she was covered under FERS retirement plan. 

On March 28, 2017 appellant requested a telephone conference with OWCP regarding the 

$1,519.79 overpayment preliminary determination. She challenged OWCP’s finding that she was 

at fault in creation of the overpayment. In an undated letter, appellant referenced enclosed 

statements revealing her loss of income in the amount of $20,000.00 during the first and second 

years after her accepted employment injury while working as a floral designer. She noted that her 

DOL caseworker told her to take the larger amount of money when she asked her about retirement. 

Appellant maintained that she would not have taken SSA benefits before her full benefit date had 

she known that she could not do it. She thought that she had an option of taking a DOL check or 

the employing establishment retirement check.

In an accompanying Form OWCP-20, appellant reported no monthly income. She reported 

monthly expenses that totaled approximately $2,035.00.3 Appellant advised that she had 

$101,500.00 in assets, including cash on hand, checking and savings accounts, and $100,000.00 

in a Thrift Savings Plan account.

On April 27, 2017 OWCP issued a decision finalizing the preliminary determination that 

appellant received a $1,519.79 overpayment of compensation for the period June 30 through 

August 20, 2016.4 It found that she was at fault in the creation of the overpayment, thereby 

precluding waiver of recovery of the overpayment. OWCP noted that during a telephone 

conference, appellant had indicated that she was unsure as to when she began receiving OPM 

retirement benefits and the dates covered by the compensation received. OWCP requested 

repayment be made in full or that she contact it about repayment arrangements within 30 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.5

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 and that, if an employee 

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

by the amount of SSA benefits.6

 

3 The Board notes that it appears that appellant inadvertently calculated $2,050.00 rather than $2,035.00 in monthly 

expenses. 

4 The Board notes that a memorandum regarding the April 27, 2017 telephone conference is not contained in the 

case record.

5 5 U.S.C. § 8102(a).

6

Id. at § 8116(d); see G.B., Docket No. 11-1568 (issued February 15, 2012); see also Janet K. George (Angelos 

George), 54 ECAB 201 (2002).
5

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.7 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. It will 

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

then deduct the hypothetical benefit from the actual benefits 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.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $48,300.57 for the period January 1, 2011 to April 2, 2016.

OWCP accepted that appellant sustained back strain and sprain and displacement of the 

lumbar intervertebral disc without myelopathy on October 26, 1991 while in the performance of 

duty. Appellant’s August 2, 2016 Form SF-50 documented her enrollment in the FERS retirement 

plan. 

Appellant received FECA partial disability compensation and SSA age-related retirement 

benefits concurrently from January 1, 2011 to April 2, 2016. OWCP requested, and SSA provided, 

information regarding her applicable SSA rates and their effective dates. Based on these rates, it 

determined that appellant received a prohibited dual benefit from January 1, 2011 to April 2, 2016 

in the amount of $48,300.57, because she received compensation from OWCP and SSA benefits

without an appropriate offset. The offset provision of section 8116(d)(2) applies to SSA benefits

that are attributable to federal service. Appellant received SSA benefits under the FERS system. 

As noted, the receipt of concurrent FECA and FERS benefits attributable to federal employment 

is a prohibited dual benefit.9 As appellant received SSA benefits based on her federal service 

concurrently with partial disability compensation from OWCP without an appropriate offset, she 

received an overpayment of compensation. 

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

finds that it properly determined that she received dual benefits totaling $48,300.57, creating an 

overpayment of compensation in that amount. The Board notes that, on appeal, appellant does not 

contest the fact or amount of the overpayment. 

 

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.11 (February 1995); see R.C.,

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

8 See P.G., Docket No. 13-0589 (issued July 9, 2013).

9 B.L., Docket No. 13-1422 (issued June 2, 2014).
6

LEGAL PRECEDENT -- ISSUE 2

Section 8116(a) of FECA provides that, while an employee is receiving workers’

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the Armed Forces, including benefits administered by the Department of Veterans 

Affairs, unless such benefits are payable for the same injury or the same death being compensated 

for under FECA.10

Under section 10.421(a) of OWCP’s implementing federal regulations, a beneficiary may 

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity.11 

The beneficiary must elect the benefit that he or she wishes to receive.12 

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $1,519.79 for the period June 30 to August 20, 2016. 

On July 15, 2016 appellant retroactively elected OPM retirement benefits beginning 

effective June 30, 2016. She also received wage-loss compensation from OWCP for the period 

June 30 to August 20, 2016. As noted, an employee cannot receive compensation under FECA 

and retirement pay from OPM for the same period.13 

As appellant elected retirement benefits from OPM for a period already covered by FECA 

compensation payments, the Board finds that she did in fact receive an overpayment of 

compensation for the entire amount. Her election of retirement annuity benefits from OPM, 

beginning June 30, 2016 and continuing through August 20, 2016, created a prohibited dual benefit 

under section 8116 of FECA. The record supports that appellant received partial disability

compensation in the amount of $1,519.79 for the period June 30 to August 20, 2016. The Board

finds, therefore, that an overpayment of compensation in the amount of $1,519.79 was created 

from June 30 to August 20, 2016.

14

LEGAL PRECEDENT -- ISSUE 3

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 

 

10 5 U.S.C. § 8116(a).

11 20 C.F.R. § 10.421(a).

12 Id. 

13 Id. 

14 5 U.S.C. § 8116; see N.P., Docket No. 15-1799 (issued January 11, 2016).

15 20 C.F.R. § 10.433(a).
7

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 (this provision applies only to the overpaid 

individual).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 

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 3

The Board finds that appellant was at fault in the creation of the $48,300.57 overpayment 

of compensation for the period January 1, 2011 through April 2, 2016.

The record reflects that appellant accepted payments covering the period January 1, 2011 

to April 2, 2016 which she knew or should have known to be incorrect. She was advised on several 

occasions that receipt of SSA benefits would affect her entitlement to FECA compensation, but 

she continued to accept full FECA benefits during the period January 1, 2011 to April 2, 2016 in 

addition to her SSA benefits. In December 10, 2012, December 18, 2013, and December 16, 2014 

letters accompanying EN1032 forms, appellant was repeatedly advised that she must inform 

OWCP immediately if she received benefits from federally-assisted disability or benefit programs 

as this would affect her benefits from OWCP. 

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 

January 1, 2011 to April 2, 2016. In addition, she also failed to provide information which she 

knew or should have known to be material for a portion of the period January 1, 2011 to 

April 2, 2016. In EN1032 forms signed on December 27, 2011, December 28, 2012, January 3, 

2014, and January 1, 2015, appellant responded “NO” to the question of whether she received 

benefits from the SSA as part of an annuity for federal service, despite the fact that she had received 

such benefits in the 15-month period preceding her signing of the form. By signing the form, 

 

16 Id. at § 10.435(a).

17 Id. at § 10.433(a); see Kenneth E. Rush, 51 ECAB 116 (1999).

18 Id. at § 10.433(b).
8

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. 

The Board thus finds appellant at fault under the third standard, as she accepted 

compensation which she knew or should have known she was not entitled to receive19 and, as such, 

recovery of the overpayment of compensation in the amount of $48,300.57 may not be waived.

The Board further finds that appellant was at fault in the creation of the $1,519.79 

overpayment of compensation for the period June 30 through August 20, 2016 on the same basis.

As set forth above, appellant had been advised that a person who receives compensation 

benefits under FECA is not permitted to receive retirement benefits concurrently with FECA 

payments. Notwithstanding this notice, she made an election to receive retirement benefits 

retroactively to June 30, 2016. Appellant received FECA benefits in the amount of $1,519.79 for 

the period June 30 to August 20, 2016. She was clearly aware that she could not receive 

compensation for wage-loss and OPM benefits for the same period. 

The employing establishment informed OWCP that appellant was retiring, effective 

June 30, 2016 and appellant informed OWCP that she had elected OPM benefits. Appellant made 

an election, when she elected to receive retirement benefits, to receive a prohibited dual benefit 

under 5 U.S.C. § 8116. Her election created an overpayment of compensation in the amount of 

$1,519.79, and as of the effective date of the commencement of her retirement benefits, she knew 

or should have known that she was not permitted to receive both FECA disability benefits and 

OPM annuity benefits for the same period.20

The Board, therefore, finds appellant at fault under the third standard, as she accepted 

compensation which she knew or should have known she was not entitled to receive21 and, as such, 

she is not eligible for waiver of recovery of the $1,519.79 overpayment.

While appellant contends on appeal that she was told by department officials, including an 

OWCP caseworker, that she could receive OWCP compensation benefits and SSA retirement 

benefits at the same time, there is no documentation in the record which supports this argument.22 

She also generally contends on appeal that she should have received compensation for periods in 

which she received no compensation. As explained, the Board only has jurisdiction over the 

 

19 5 U.S.C. § 8129(b); id. at § 10.433(a). 

20 See A.P., Docket No. 15-0586 (issued June 6, 2016); N.P., supra note 14; B.G., Docket No. 14-2002 (issued 

August 13, 2015).

21 Supra note 19.

22 In such cases, there must be documentation to show that misinformation was communicated by either OWCP or 

the employing establishment. Furthermore, there cannot be any evidence that the individual knew or should have 

known the proper course of action to be followed. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, 

Initial Overpayment Actions, Chapter 6.200.5b(2) (June 2009).
9

March 17 and April 27, 2017 OWCP decisions finding that overpayments occurred during specific 

periods. The Board does not have jurisdiction to review any other periods of compensation.

23

With respect to recovery of the overpayment, the Board’s jurisdiction is limited to 

reviewing those cases where OWCP seeks recovery from continuing compensation benefits under 

FECA.24 As appellant is no longer receiving wage-loss compensation, the Board does not have 

jurisdiction with respect to the recovery of the overpayment under the Debt Collection Act.25

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $48,300.57 for the period January 1, 2011 to April 2, 2016. The 

Board further finds that OWCP properly determined that she received an overpayment of 

compensation in the amount of $1,519.79 for the period June 30 to August 20, 2016. Lastly, the 

Board finds that OWCP properly determined that appellant was at fault in the creation of the 

overpayments of compensation in the amount of $48,300.57 and $1,519.79, thereby precluding 

waiver of recovery of the overpayments. 

 

23 See 20 C.F.R. § 501.2(c).

24 Cheryl Thomas, 55 ECAB 610 (2004).

25 Id.
10

ORDER

IT IS HEREBY ORDERED THAT that the April 27 and March 17, 2017 decisions of 

the Office of Workers’ Compensation Programs are affirmed. 

Issued: April 2, 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