United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.L., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

AGENCIES, Aviano, Italy, Employer

__________________________________________

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Docket No. 18-1103

Issued: March 5, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 May 7, 2018 appellant filed a timely appeal from an April 19, 2018 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 appellant received an overpayment of compensation in the 

amount of $79,302.70 because she concurrently received Social Security Administration (SSA) 

benefits while also receiving FECA benefits for the period March 15, 2011 through December 12, 

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that following the April 19, 2018 decision, OWCP received additional evidence and appellant 

submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “the Board’s review 

of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence 

not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, 

the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. 
2

2015; (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; and (3) whether 

OWCP properly required recovery of the overpayment by deducting $500.00 every 28 days from 

appellant’s continuing compensation.

FACTUAL HISTORY

On January 31, 2011 appellant, then a 61-year-old English/Second Language teacher, filed 

a traumatic injury claim (Form CA-1) alleging that she injured her lower back, neck, and head 

when she fell down a flight of stairs while at work on January 28, 2011. On March 3, 2011 OWCP 

accepted crushing injuries of multiple sites of trunk, cortex contusion without open wound,

unspecified state of consciousness, sprain of back, lumbar region, brain stem contusion without 

open wound with concussion and lumbago. Appellant did not return to work. OWCP paid 

appellant wage-loss compensation on the periodic rolls as of October 23, 2011.

On EN1032 forms signed by appellant on February 23, 2012, February 24, 2013, 

March 24, 2014, and March 10, 2015, she indicated that she was not receiving SSA benefits as 

part of an annuity for federal service.3

By follow-up letter dated March 10, 2015, OWCP asked appellant if she was receiving 

retirement benefits from the Office of Personnel Management (OPM). In a response dated 

March 24, 2015, appellant informed OWCP that she did not receive OPM retirement benefits, and 

only received “regular” SSA retirement benefits.

On July 7, 2015 SSA forwarded a FERS/SSA dual benefits calculation form to OWCP. 

The form indicated that: beginning in March 2011 appellant’s SSA rate with FERS was $1,309.30 

and without FERS zero; beginning in December 2011, her SSA rate with FERS was $1,356.40 and 

without FERS zero; beginning in January 2012, her SSA rate with FERS was $1,367.30 and 

without FERS zero; beginning in December 2012, her SSA rate with FERS was $1,390.50 and 

without FERS zero; beginning in December 2013, her SSA rate with FERS was $1,411.30 and 

without FERS zero; and beginning in December 2015, her SSA rate with FERS was $1,435.20 and 

without FERS zero. In correspondence dated August 24, 2015, SSA informed OWCP that 

appellant had worked for the Federal Government from 1988 through 2013. SSA reported no other 

employer.

By letter dated January 19, 2016, OWCP notified appellant that, based on information 

provided by SSA regarding the amount her SSA benefit was attributable to federal service, her 

FECA wage-loss compensation had been adjusted, and that an overpayment of compensation could 

exist. On June 3, 2017 appellant informed OWCP that her address had changed to FPO, AE xxxx3.

On March 9, 2018 OWCP issued a preliminary determination, finding that an overpayment 

of compensation in the amount of $79,301.70 had been created. It explained that the overpayment 

occurred because appellant’s SSA benefits that she received from March 15, 2011 to December 12, 

 

3 The EN1032 forms signed by appellant provided: “Report any benefits received from the SSA which you receive 

as part of an annuity under the Federal Employees Retirement System (FERS). DO NOT report any benefits received 

from the SSA on account of employment in the private sector.”
3

2015 was based on credits earned while working in the Federal Government, and that this was a 

prohibited dual benefit. OWCP found her at fault and provided an overpayment action request 

form and an overpayment recovery questionnaire (OWCP-20).

4

 It informed appellant of the 

actions she could take and allotted 30 days for her to respond. The March 9, 2018 preliminary 

overpayment determination was mailed to her last known address at FPO, AE xxxx3.

On March 12, 2018 appellant submitted a change-of-address notice to APO, AE xxxx1. 

On March 19, 2018 OWCP resent the March 9, 2018 preliminary overpayment determination to 

her new address of record at APO, AE xxxx1.

By decision dated April 19, 2018, OWCP finalized the preliminary determination of a 

$79,302.70 overpayment of compensation. It determined that appellant was at fault in the creation 

of the overpayment and, therefore, she was not entitled to waiver of recovery of the overpayment. 

OWCP set recovery at $500.00 every 28 days from her continuing FECA compensation. The 

April 19, 2018 decision was mailed to appellant’s address-of-record at APO, AE xxxx1.

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 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(d) of the implementing regulations requires that OWCP reduce the amount 

of compensation by the amount of any SSA benefits that are attributable to federal service of the 

employee.7 FECA Bulletin No. 97-09 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

 

4 OWCP explained that appellant was to include supporting documentation with her completed overpayment 

recovery questionnaire, including income tax returns, bank account statements, bills and cancelled checks, pay slips, 

and any other records which supported income and expenses listed.

5 5 U.S.C. § 8102(a).

6

Id. at § 8116.

7 20 C.F.R. § 10.421(d); see E.K., Docket No. 18-0587 (issued October 1, 2018).

8 FECA Bulletin No. 97-09 (February 3, 1997).
4

Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins

at 62 years.9 Section 404.409 of SSA regulations provides that for individuals born from 1943 to 

1954, full retirement age is 66 years.10 

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $79,302.70.

In its April 19, 2018 decision, OWCP found that an overpayment of compensation was 

created for the period March 15, 2011 through December 12, 2015. The overpayment was based 

on the evidence received from SSA with respect to retirement benefits paid to appellant. A 

claimant cannot receive both compensation for wage loss and SSA retirement benefits attributable 

to federal service for the same period.11 The information provided by SSA established that 

appellant received age-based SSA benefits that were attributable to federal service during the 

period March 15, 2011 through December 12, 2015.

To determine the amount of the overpayment, the portion of the SSA benefits that were 

attributable to federal service must be calculated. OWCP received documentation from SSA with 

respect to the specific amount of age-based SSA retirement benefits that were attributable to 

federal service. The SSA provided the SSA rate with FERS, and without FERS for specific periods 

commencing July 1, 2015 through July 22, 2017. OWCP provided its calculations for each 

relevant period based on the SSA worksheet. No contrary evidence was provided.

The Board has reviewed OWCP’s calculation of benefits received by appellant for the 

period March 15, 2011 through December 12, 2015 and finds that an overpayment of 

compensation in the amount of $79,302.70 was created.12

LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP unless “incorrect payment has been made to an individual who is without fault and 

when adjustment or recovery would defeat the purpose of FECA or would be against equity and 

good conscience.”

13

Section 10.433(a) of OWCP regulations provides that OWCP:

“[M]ay consider waiving an overpayment only if the individual to whom it was 

made was not at fault in accepting or creating the overpayment. Each recipient of 

 

9 20 C.F.R. § 404.310.

10 Id. at § 404.409.

11 See E.K., supra note 7.

12 See D.C., Docket No. 17-0559 (issued June 21, 2018).

13 5 U.S.C. § 8129; see A.S. Docket No. 17-0606 (issued December 21, 2017).
5

compensation benefits is responsible for taking all reasonable measures to ensure 

that payments he or she receives from OWCP are proper. The recipient must show 

good faith and exercise a high degree of care in reporting events which 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 in 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).”

14

To determine if an individual was at fault with respect to the creation of an overpayment, 

OWCP examines 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

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

of the overpayment and thus not entitled to waiver of the recovery of the overpayment. 

OWCP found appellant at fault based on the fact that she accepted a payment which she 

knew or should have known to be incorrect. 

In EN1032 forms signed by appellant on February 23, 2012, February 24, 2013, March 24, 

2014, and March 10, 2015, she indicated that she was not receiving SSA benefits as part of an 

annuity for federal service. This was not an accurate statement as, by SSA records, she was in fact 

in receipt of SSA retirement benefits effective March 15, 2011.

The EN1032 forms appellant completed provided: 

“PART D -- OTHER FEDERAL BENEFITS OR PAYMENTS”

* * * 

“2. SSA Retirement Benefits. Report any benefits received from the SSA which 

you receive as part of an annuity under the FERS. DO NOT report any benefits 

received from the SSA on account of employment in the private sector. 

 

14 20 C.F.R. § 10.433(a); see C.Y., Docket No. 18-0263 (issued September 14, 2018); see also 20 C.F.R. § 10.430.

15 Id. at § 10.433(b); C.Y., id.
6

a. Do you receive benefits from the SSA as part of an annuity for federal 

service? Yes or No: ____”

Based on the clear language of the forms which appellant knowingly signed, she failed to 

provide information she knew or should have known to be material and accepted payment she 

knew was incorrect.16 The evidence thus establishes that she was at fault in the creation of the 

overpayment.

17

 

Appellant did not timely respond to the preliminary overpayment determination that 

OWCP mailed to her on March 19, 2018, as such, she is not entitled to waiver of recovery of the 

overpayment.18

LEGAL PRECEDENT -- ISSUE 3

Section 10.441 of OWCP’s regulations provides that when an overpayment has been made 

to an individual who is entitled to further payments, the individual shall refund to OWCP the 

amount of the overpayment as soon as the error is discovered or his or her attention is called to the 

same. If no refund is made, OWCP shall decrease later payments of compensation, taking into 

account the probable extent of future payments, the rate of compensation, the financial 

circumstances of the individual, and any other relevant factors, so as to minimize hardship.19

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly required recovery of the overpayment of 

compensation by deducting $500.00 every 28 days from appellant’s continuing compensation 

payments.

Although OWCP provided appellant with an overpayment recovery questionnaire, she did 

not submit a completed questionnaire or other financial information that OWCP requested prior to 

the 30 days allowed. The overpaid individual is responsible for providing information about 

income, expenses, and assets as specified by OWCP.20 When an individual fails to provide 

requested financial information, OWCP should follow minimum collection guidelines designed to 

collect the debt promptly and in full.21 As appellant did not submit any financial information to 

OWCP as requested, the Board finds that there is no evidence in the record to show that OWCP 

 

16 See E.H., Docket No. 18-1009 (issued January 29, 2019). 

17 D.M., Docket No. 17-0983 (issued August 3, 2018).

18 Id.

19 20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

20 Id. at § 10.438.

21 Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Overpayment Actions, Chapter 6.200.4(c)(2) (May 2004).
7

erred in directing recovery of the $79,302.70 overpayment at the rate of $500.00 per compensation 

period.22

Appellant argues on appeal that she was not given an opportunity to ask for waiver of 

recovery of the overpayment because she did not receive the March 19, 2018 preliminary 

determination until April 20, 2018. Under the mailbox rule, it is presumed, absent evidence to the 

contrary, that a notice mailed to an individual in the ordinary course of business was received by 

that individual.23 The record supports that the March 19, 2018 preliminary determination was sent 

to appellant’s address of record at that time: APO, AE xxxx1, which appellant provided to OWCP 

on March 12, 2018. It was not returned to OWCP as undeliverable. Consequently, the preliminary 

overpayment determination is presumed to have been received under the mailbox rule.24

CONCLUSION

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

$79,301.70 because she concurrently received SSA benefits while also receiving FECA benefits 

for the period March 15, 2011 through December 12, 2015. The Board further finds that she was 

at fault in the creation of the overpayment and, therefore, not subject to waiver of recovery of the 

overpayment, and that OWCP properly required recovery by deducting $500.00 every 28 days 

from her continuing compensation payments.

 

22 See S.M., Docket No. 17-1802 (issued August 20, 2018).

23 P.P., Docket No. 18-0706 (issued October 26, 2018).

24 See T.N., Docket No. 17-0387 (issued November 28, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the April 19, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 5, 2019

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