United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.C., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, North Reading, MA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 18-0074

Issued: August 1, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 12, 2017 appellant, through counsel, filed a timely appeal from an August 23, 

2017 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal 

Employees’ Compensation Act2and 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 to the Board includes evidence received after OWCP issued its August 23, 2017 decision. The 

Board’s jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final decision. 

Therefore, the Board is precluded from considering this new evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
2

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $289.07 for the period from April 1 through May 27, 

2017; and (2) whether OWCP properly found that appellant was at fault in the creation of the 

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the prior decision are incorporated herein by reference. The relevant facts are set forth below.

On October 2, 1992 appellant, then a 35-year-old letter sorting machine clerk, filed an 

occupational disease claim (Form CA-2) alleging an ulnar nerve injury due to factors of her federal 

employment. On December 8, 1992 OWCP accepted her claim for left ulnar nerve entrapment. 

Appellant subsequently filed additional claims and on August 23, 1994 OWCP also accepted that 

she sustained employment-related tendinitis of the right hand.

On November 1, 1998 appellant filed an occupational disease claim alleging that she had 

developed lateral epicondylitis, noting that she had missed work from October 16 to 21, 1998 due 

to this condition. She stopped work on June 14, 1999 and did not return. By decision dated 

August 19, 1999, OWCP accepted appellant’s claim for lateral epicondylitis and paid her wage-loss 

compensation and placed her on the periodic rolls effective March 26, 2000.

On December 31, 2009 OWCP issued an updated letter outlining appellant’s entitlement to 

compensation benefits. It noted that she was entitled to wage-loss compensation every 28 days in 

the amount of $123.00.

In a form dated October 21, 2010, appellant enrolled in direct deposit for her compensation 

payments. OWCP received her enrollment form for direct deposit on the same date.

In a record of a telephone conversation (CA-110) dated September 9, 2016, appellant stated 

that she was considering selecting retirement benefits from the Office of Personnel Management 

(OPM) rather than FECA benefits. An OWCP representative noted that he would send her a form 

for election of benefits.

In a Form CA-1105 dated January 11, 2017, appellant elected to receive Civil Service 

Retirement System/Federal Employees Retirement System (CSRS/FERS) benefits in preference to 

benefits to which she may be entitled under FECA for OWCP File No. xxxxxx584, effective 

April 1, 2017.

On February 23, 2017 OWCP advised OPM that appellant had elected OPM retirement 

benefits in lieu of wage-loss compensation benefits under FECA for OWCP File No. xxxxxx584. 

It requested that OPM commence monthly annuity payments, effective April 2, 2017, noting that 

the date had been adjusted due to the periodic rolls payment ending on April 1, 2017.

 

4 Docket No. 08-1348 (issued July 6, 2009); Docket No. 04-1379 (issued October 29, 2004).
3

In a letter dated May 5, 2017, an OWCP representative informed appellant that her election 

of benefits on January 11, 2017 had been received under a different case number, and that OWCP 

would have to terminate benefits under OWCP File No. xxxxxx004 as well.

By letter dated May 9, 2017, OWCP noted that appellant was entitled to compensation 

benefits in the amount of $142.00 for the period from April 2 and 29, 2017. It noted that, while 

appellant had submitted an election of benefits form under File No. xxxxxx584, OWCP required 

completion of an election form for each claim under which she was in receipt of wage-loss 

compensation benefits. OWCP enclosed an election form for appellant to fill out for File No. 

xxxxxx584.

By letter dated May 18, 2017, OWCP informed the Social Security Administration that,

while appellant had four accepted OWCP claims, her sole remaining claim upon which wage-loss 

compensation was being paid was the present claim, and that an election of benefits form was 

pending return from appellant.

On May 23, 2017 appellant elected OPM retirement benefits in OWCP File No. xxxxxx004, 

effective April 1, 2017.

In an overpayment computer worksheet dated June 5, 2017, OWCP noted three 

compensation payments paid on or subsequent to April 1, 2017, including a payment of $5.07 on 

April 1, 2017, for that single day, a payment of $142.00 on April 29, 2017 for the period from 

April 2 through 29, 2017, and a payment of $142.00 on May 27, 2017 for the period from April 30 

through May 27, 2017.

A review of appellant’s compensation history reveals that OWCP paid appellant $142.00 on 

April 1, 2017 for the period from March 5 through April 1, 2017, $142.00 on April 29, 2017 for the 

period from April 2 through 29, 2017, and $142.00 on May 27, 2017 for the period from April 30 

through May 27, 2017.

On June 29, 2017 OWCP issued a preliminary determination that an overpayment of 

compensation was created in the amount of $289.07 for the period from April 1 through 

May 27, 2017. It explained that the overpayment occurred because appellant received both FECA 

benefits and OPM retirement benefits during this period, which resulted in a prohibited dual benefit 

payment. Appellant was found to be at fault in the creation of the overpayment because she was 

aware or should have been aware that she was not entitled to FECA compensation subsequent to the 

effective date of her election of OPM retirement benefits. OWCP provided her an overpayment 

action request and an overpayment recovery questionnaire (OWCP-20) and afforded her 30 days to 

respond.

In a completed overpayment action request dated July 20, 2017, appellant contested that an 

overpayment had occurred, as well as the finding of fault. In an attached letter, she explained that 

she did not believe the overpayment was her fault, noting that she had submitted her election of 

benefits and assumed that OWCP would properly administer her benefits. Appellant noted that she 

had not been aware that she needed to submit a separate election of benefits form for each accepted 

injury. She further explained that repayment would cause her financial hardship, as she had not yet 

received retirement benefit payments from OPM.
4

By decision dated August 23, 2017, OWCP finalized the preliminary overpayment 

determination finding that appellant was at fault in the receipt of an overpayment of compensation 

in the amount of $289.07 and, thus, she was not entitled to waiver of recovery of the overpayment. 

Repayment was requested in full.

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(a) states 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.6 

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

wage-loss compensation concurrently with a federal retirement or survivor annuity.7 The 

beneficiary must elect the benefit that he or she wishes to receive.8 OWCP procedures also explain 

that the employee must make an election between FECA benefits and OPM benefits. The employee 

has the right to elect the monetary benefit which is the more advantageous. This policy also applies 

to reemployed annuitants.9

ANALYSIS -- ISSUE 1

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

of compensation. 

OWCP based its overpayment finding on its determination that appellant had received 

prohibited dual OPM and FECA benefits for the period from April 1 through May 27, 2017. While 

the record reflects that appellant received FECA benefits for this period, the Board finds that OWCP 

has not established that she also received OPM benefits for this period.10

On May 18, 2017 OWCP notified OPM that appellant’s compensation would continue under 

OWCP File No. xxxxxx004 pending receipt of an election of benefits form from her to receive OPM 

benefits in lieu of FECA benefits. On May 23, 2017 appellant elected OPM retirement benefits, 

effective April 1, 2017, for File No. xxxxxx004. However, there is no evidence of record which 

establishes that she actually received OPM benefits for the period from April 1 through 

 

5 5 U.S.C. § 8102(a).

6

Id. at § 8116(a).

7 20 C.F.R. § 10.421(a).

8

Id.

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also

R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued March 30, 1994).

10 See R.R., Docket No. 18-0032 (issued May 3, 2018).
5

May 27, 2017.

11

 The record is also silent as to whether OPM reimbursed OWCP for FECA benefits 

paid to appellant during the period in question.

The Board thus finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $289.07 for the period from April 1 through 

May 27, 2017.12

CONCLUSION

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

of compensation in the amount of $289.07 for the period from April 1 through May 27, 2017.

13

ORDER

IT IS HEREBY ORDERED THAT the August 23, 2017 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 1, 2019

Washington, DC

Christopher J. Godfrey, 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

 

11 See J.M., Docket No. 15-1604 (issued May 23, 2016). 

12 G.M., Docket No. 17-0784 (issued August 23, 2017); D.O., Docket No. 15-1004 (issued July 28, 2015).

13 In light of the Board’s finding in Issue 1, Issue 2 is moot.