United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.F., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Gainesville, FL, Employer 

__________________________________________ 

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Docket No. 17-0317 

Issued: June 7, 2017 

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 November 28, 2016 appellant filed a timely appeal from an August 22, 2016 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 OWCP properly found an overpayment of compensation in 

the amount of $4,231.61; and (2) whether OWCP properly determined that appellant was at fault 

in the creation of the overpayment and therefore not entitled to waiver of recovery of the 

overpayment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 7, 2006 appellant, then a 56-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on September 2, 2006 she sustained injuries when while in the 

performance of duty she fell down steps. OWCP accepted bilateral contusions of her shoulders 

and upper arms, left leg abrasion, abrasions of other multiple sites, closed fracture alveolar 

border of body, and headaches. Appellant received compensation benefits on the supplemental 

rolls from October 29, 2006. 

Appellant returned to work as a telemetry health technician on April 13, 2008. By 

decision dated July 31, 2008, OWCP found her actual earnings represented her wage-earning 

capacity. Appellant’s compensation was reduced to reflect her wage-earning capacity. 

By letter dated May 31, 2013, the employing establishment indicated that appellant had 

retired from federal employment on December 15, 2012. The record indicates that she 

periodically submitted EN1032 reports regarding receipt of other federal benefits. In an EN1032 

dated June 22, 2013, appellant indicated that she received Office of Personnel Management 

(OPM) retirement benefits. Appellant also wrote that she currently received Social Security 

Administration (SSA) retirement benefits, noting that she retired when she reached 621⁄2 years of 

age. 

OWCP sent appellant a letter dated July 11, 2013, informing her that if she was receiving 

OPM disability retirement benefits, she should notify OWCP of the date the annuity began. It 

indicated that if appellant was receiving compensation benefits, receipt of OPM benefits would 

be a prohibited dual benefit. In addition, OWCP requested a copy of her SSA award letter. 

Appellant responded on July 19, 2013, writing that she was receiving a small amount of 

“regular” retirement, and a little more from SSA. She indicated that she did retire earlier than 

planned due to her headaches. The record indicates that appellant submitted EN1032 forms on 

June 20, 2014 and June 22, 2015. Appellant indicated on both forms that she was receiving 

OPM and SSA benefits. 

By letter dated June 23, 2016, OWCP advised appellant of a preliminary determination of 

an overpayment in the amount of $4,231.61 because she had received OPM retirement benefits 

since December 15, 2012 while on the periodic rolls receiving compensation based on a loss of 

wage-earning capacity. As to the calculation of the amount of the overpayment, it noted that 

there were 1,261 calendar days and provided payment amounts for each year listed. OWCP also 

made a preliminary determination that appellant was at fault in creating the overpayment, as she 

knowingly accepted compensation that was erroneous. 

On July 18, 2016 appellant submitted evidence that included an OWCP-20 overpayment 

recovery questionnaire and financial documents. 

By decision dated August 22, 2016, OWCP finalized its preliminary determination of an 

overpayment of compensation in the amount of $4,231.61. It also denied waiver of recovery of 

the overpayment, finding appellant had accepted payments she knew or should have known to be 

incorrect. 
3

LEGAL PRECEDENT -- ISSUE 1 

5 U.S.C. § 8116 defines the limitations on the right to receive compensation benefits. 

Section 8116(a) 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. 

Section 10.421(a) of OWCP’s implementing regulations provides that a claimant may not 

receive wage-loss compensation concurrently with a federal retirement or survivor annuity. 

When a claimant is entitled to disability benefits under FECA and annuity benefits from 

OPM under either Civil Service Retirement System (CSRS) or Federal Employees Retirement 

System (FERS), the employee must make an election of benefits.2 The employee has the right to 

elect the monetary benefits that are most advantageous.3 The election, once made, is revocable.4 

Concurrent wage-loss compensation and OPM benefits constitute a prohibited dual benefit.5

ANALYSIS -- ISSUES 1 & 2 

The Board finds that OWCP failed to make proper findings in its June 23, 2016 

preliminary determination and August 22, 2016 final decision with respect to the overpayment 

issues in this case. 

As to fact of overpayment, OWCP briefly refers to the receipt of OPM benefits since 

December 15, 2012. The record indicated that appellant retired from federal employment as of 

December 15, 2012. There is no indication that OWCP contacted OPM to confirm when 

appellant began receiving benefits and the amount of such benefits. There is also no evidence in 

the record with respect to appellant’s election of OPM benefits or other relevant information. It 

is well established that there must be evidence from OPM as to the amount and period of OPM 

benefits issued to a claimant.6

 Appellant had also reported that she received SSA benefits, but no 

findings were made in this regard. 

 2

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

3 Id. 

4

 20 C.F.R. § 10.421(a). 

5 Supra note 6. 

6 See D.O. Docket No. 15-1004 (issued July 28, 2015) (Board remanded as there was no documentation from 

OPM regarding benefits received); D.R., Docket No. 13-1531 (issued October 21, 2013); see also R.A., Docket No. 

16-0467 (issued May 23, 2016) (hearing representative had remanded the case as there was no documentation from 

OPM concerning benefits received). Cf. A.M., Docket No. 16-1260 (issued November 7, 2016) (evidence of record 

confirmed election of OPM benefits, the period and amounts received); H.T., Docket No. 16-0482 (issued 

July 14, 2016). 
4

In addition, there is no explanation in the preliminary or final determination as to how the 

amount of an overpayment was calculated -- OWCP simply lists numbers with no explanation as 

to how the numbers were determined. It did not provide a clearly written statement explaining 

how the overpayment was calculated such that appellant could determine that the calculation was 

correct.7

The Board further notes that there is no reference to FECA or other authority to provide 

the foundation for the finding that appellant had received an improper dual benefit. The June 23, 

2016 preliminary determination cites only the regulations with respect to fault, and the final 

decision provides no citations. 

As to fault, OWCP finds appellant accepted payments she should have known were 

incorrect, with little explanation. It did not refer to specific payments or explain how she would 

have or should have known they were incorrect.8

It is a well-established principle that OWCP must make proper findings of fact and a 

statement of reasons in its final decisions.9

 The August 22, 2016 OWCP decision did not meet 

this standard. OWCP did not identify the proper statutory or regulatory authority, did not 

properly develop the record, or make clear findings on the overpayment issues presented. The 

case will be remanded to OWCP for further development. After proper further development of 

the evidence, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds the case is not in posture for decision. 

 7 See J.H., Docket No. 14-1584 (issued October 5, 2016). 

8 See James M. Devine, Docket No. 05-0438 (issued May 6, 2005). 

9 See Arietta K. Cooper, 5 ECAB 11 (1952); 20 C.F.R. § 10.126. 
5

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated August 22, 2016 is set aside and the case is remanded for further 

action consistent with this decision of the Board. 

Issued: June 7, 2017 

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