United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.O., Appellant

and

DEPARTMENT OF THE NAVY, 

CHARLESTON NAVAL SHIPYARD, 

Charleston, SC, Employer

__________________________________________

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Docket No. 17-0510

Issued: November 3, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 4, 2017 appellant filed a timely appeal from an October 4, 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 determined that appellant received an 

overpayment of compensation in the amount of $47,469.74 for the period September 1, 2008 to 

March 5, 2016; (2) whether OWCP properly determined that appellant was at fault in the 

creation of the overpayment of compensation, thereby precluding waiver of recovery of the 

overpayment; and (3) whether OWCP properly required repayment of the overpayment by 

deducting $300.00 every 28 days from appellant’s continuing compensation payments.

 

1

5 U.S.C. § 8101 et seq. 
2

On appeal, appellant contends that she was falsely accused of being under the Federal 

Employees Retirement System (FERS) and at fault in creation of the overpayment. She further 

contends that her due process rights were violated by OWCP as it did not allow her to defend the 

overpayment because it failed to return her telephone calls to schedule a telephone conference. 

Appellant asserts that she acted on the advice given to her by an employing establishment 

personnel specialist. She also asserts that the Social Security Administration (SSA) verified that 

she was never under FERS and that the SSA stated that she was entitled to SSA benefits.

FACTUAL HISTORY

On May 4, 1998 appellant, then a 51-year-old personnel assistant, filed an occupational 

disease claim (Form CA-2) alleging that she developed anxiety, depression, and stress as a result 

of being harassed by coworkers and supervisors. She first became aware of the claimed

condition and its relationship to her federal employment in October 1992. Appellant claimed 

that she involuntarily retired due to the alleged harassment.

A notification of personnel action (Form SF-50B) dated September 13, 1995 indicated 

that appellant retired from the employing establishment effective September 3, 1995 and she 

received a separation incentive payment in the amount of $25,000.00. The form also indicated 

that she was covered under the Federal Insurance Contributions Act (FICA) retirement plan and 

partial Civil Service Retirement System (CSRS) retirement plan, with a January 27, 1970 service 

computation.

2

 It listed appellant’s retirement plan as Code C, applicable to those under the 

CSRS offset retirement plan.

On May 18, 2001 OWCP accepted appellant’s claim for anxiety state, not otherwise 

specified, and aggravation of irritable bowel syndrome. It placed her on the daily compensation

rolls and paid wage-loss compensation benefits beginning December 22, 2001. OWCP later 

placed her on the periodic rolls. 

On an election form dated June 17, 2002, appellant elected to continue to receive FECA 

benefits effective July 16, 1996. The election form noted that she understood that she was not 

entitled to receive FECA benefits and CSRS/FERS benefits concurrently.

On August 8, 2010 OWCP accepted appellant’s claim for ulcerative enterocolitis, tension 

headache, adjustment disorder with mixed anxiety and depressed mood, and chronic abdominal 

pain syndrome. It continued to pay appropriate compensation benefits.

Between June 2001 and August 2011, appellant regularly submitted Form EN1032 

annual statements regarding her employment status, volunteer work, dependents, and other 

federal benefits received. She responded “NO” to the question of whether she received benefits 

from the SSA as part of an annuity for federal service in the previous 15 months. 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 letters that 

accompanied the EN1032 forms between June and August 2011, she was advised that she “must 

report to OWCP ... any income or change in income from Federally assisted disability or benefit 

 

2

FICA is a payroll tax withheld from an employee’s pay to fund social security and Medicare.
3

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. 

By letter dated September 28, 2012, the employing establishment informed OWCP that 

appellant was currently receiving SSA benefits and that she was under FERS. It noted that 

perhaps OWCP was already deducting a FERS offset. If not, the employing establishment 

suggested that OWCP contact the SSA to verify whether appellant was receiving benefits and if 

appropriate, reduce her compensation by that amount.

In a facsimile (fax) transmittal dated November 20, 2012, OWCP requested SSA to 

provide information regarding any dual benefits appellant may have received. On January 11, 

2013 SSA submitted a form which showed SSA rates with a FERS offset and without a FERS 

offset from September 2008 through December 2012. 

In EN1032 forms signed by appellant on August 30, 2013 and September 11, 2014, she 

again responded “NO” to the question of whether she received benefits from SSA as part of an 

annuity for federal service in the previous 15 months. In August 1, 2013 and August 1, 2014 

letters accompanying the EN1032 forms, appellant was again informed that she must report to 

OWCP any income or change in income from federally assisted disability or benefit programs. 

By letter dated August 21, 2014, the employing establishment advised appellant that she 

may not receive SSA and federal compensation at the same time. It noted that her employing 

establishment personnel file indicated that she was in FERS’s retirement pension system. The 

employing establishment indicated that appellant was “presently past the full SSA retirement age 

of 66 (age 67).” It informed her that FECA required a reduction in benefits if she received 

retirement benefits from the SSA attributable to federal service. OWCP requested that appellant 

place a checkmark by the appropriate statement to indicate whether she received SSA benefits.

On September 11, 2014 appellant responded by referencing the Form EN1032 she signed 

on September 11, 2014, which indicated that she had not received benefits from SSA as part of 

an annuity for federal service in the previous 15 months. She submitted a February 23, 1991 

Form SF-50B which identified her retirement plan as FICA and CSRS. 

In a September 16, 2014 memorandum, the employing establishment informed OWCP 

that appellant had turned 66 years old on August 18, 2012. It noted that she was currently 69 

years old. The employing establishment asserted that on August 18, 2012, appellant’s SSA 

benefit changed from disability to old-age retirement and any SSA benefits that she was 

currently receiving were considered SSA retirement benefits. It requested that OWCP send a 

FERS questionnaire to the SSA regarding an offset of appellant’s FECA benefits.

In a fax transmittal dated October 8, 2014, OWCP again requested that SSA provide 

information regarding any dual benefits appellant may have received. On May 2, 2015 SSA 

submitted a form which indicated SSA rates with a FERS offset and without a FERS offset from 

September 2008 through December 2014. 

By letter dated August 3, 2015, OWCP requested that appellant complete an 

accompanying Form EN1032. 
4

In a September 22, 2015 memorandum, the employing establishment again informed 

OWCP that appellant was receiving SSA retirements benefits. 

On November 16, 2015 OWCP received an EN1032 form signed by appellant on 

September 5, 2015, indicating that she did not work for any employing establishment for the past 

15 months. She also included her CSA number. Appellant did not indicate whether she received 

SSA benefits as part of annuity for her federal service in the previous 15 months. 

In a November 20, 2015 memorandum, the employing establishment again requested an 

offset of appellant’s FECA benefits by her SSA retirement benefits. It noted that she had been 

receiving SSA retirement benefits since September 2008. The employing establishment further 

noted that appellant was partially covered under CSRS, but she had elected social security

deductions from her federal employment salary. As such, it contended that any SSA retirement 

benefits she received must be offset. The employing establishment asserted that appellant’s 

September 3, 1995 Form SF-50 confirmed her retirement plan.

In a December 4, 2015 fax transmittal and by letter dated December 17, 2015, OWCP

requested that SSA provided updated information concerning dual benefits appellant may have 

received. On March 7, 2016 SSA submitted a form which provided SSA rates with a FERS 

offset and without a FERS offset from September 2008 through December 2015. 

By notice dated March 23, 2016, OWCP advised appellant of its preliminary 

determination that she received a $47,469.74 overpayment of compensation for the period 

September 1, 2008 through March 5, 2016 because she was in receipt of FECA and SSA 

benefits without a FERS offset amount applied to her FECA benefits for that period. It noted 

that the portion of SSA benefits earned as a federal employee, which is part of the FERS

retirement package, and the receipt of FECA benefits concurrently was a prohibited dual benefit. 

Therefore, the SSA benefits which were attributable to the federal service of an employee 

covered under FECA must be deducted from FECA. OWCP made a preliminary determination 

that appellant was at fault in creating the overpayment because she did not report her receipt of 

SSA benefits as instructed by the Form EN1032 she signed and, thus, she accepted payments 

which she knew or reasonably should have known she was not entitled to receive. It advised her 

that she could submit evidence challenging the fact, amount, or fault finding and request waiver 

of recovery of the overpayment. OWCP also informed appellant of review options she could 

pursue within 30 days, including a prerecoupment hearing before a representative of OWCP’s 

Branch of Hearings and Review. It requested that she complete an enclosed overpayment 

recovery questionnaire (Form OWCP-20) and submit supporting financial documents.

On April 18, 2016 appellant requested a telephone conference. She submitted a 

completed Form OWCP-20 and various financial documents. On the Form OWCP-20 appellant 

asserted that she was not at fault in creation of the overpayment because she contacted the SSA 

several times and was told that her benefits would not affect her OWCP benefits. She claimed 

that the Form EN1032 indicated that she did not have to report SSA benefits. Appellant asserted

that she was never under FERS, that she was under CSRS disability, and that it was not her intent 

to take something to which she was not entitled and that it was an honest misunderstanding. She 

maintained that she would lose everything if compelled to repay the overpayment. Appellant

reported her monthly income and expenses and funds. 
5

OWCP made several unsuccessful attempts to schedule a telephone conference with 

appellant. On September 6, 2016 appellant withdrew her request for a telephone conference and 

instead requested that OWCP issue a decision based on the record. 

In a September 12, 2016 letter, appellant asserted that she did not answer a question on 

the Form EN1032 because it was misleading and she did not know how to answer the question. 

She claimed that she had been falsely accused of lying and requested waiver of recovery of the 

overpayment.

By decision dated October 4, 2016, OWCP finalized the preliminary determination that 

appellant received a $47,469.74 overpayment of compensation for the period September 1, 2008 

through March 5, 2016. It found that she was at fault in creating the overpayment, thereby 

precluding waiver of recovery of the overpayment. OWCP noted that appellant had submitted a 

completed Form OWCP-20 and, after reviewing her financial situation, determined that the 

overpayment would be collected by withholding $300.00 from continuing compensation 

payments every four weeks, beginning October 16, 2016. It indicated that she did not provide a 

total for her monthly expenses, that the information she provided was difficult to comprehend as 

it was scattered all over the page, and there was no documentation submitted to support all of her 

expenses. 

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.3 Section 8129(a) of FECA provides that, in pertinent part, when an 

overpayment has been made to an individual under this subchapter because of an error of fact or 

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by 

decreasing later payments to which an individual is entitled.4

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.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.6 Section 8116(d)(2) provides that the receipt of SSA benefits 

 

3

Id. at § 8102(a).

4

Id. at § 8129(a).

5

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).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e)(2) (January 1997); 

Chapter 2.1000.11(a)-(b) (February 1995).
6

“does not affect the right of the employee to compensation for scheduled disabilities specified by 

section 8107(c) of this title.”

7

ANALYSIS -- ISSUE 1

OWCP accepted that appellant sustained anxiety state, not otherwise specified, 

aggravation of irritable bowel syndrome, ulcerative enterocolitis, tension headache, adjustment 

disorder with mixed anxiety and depressed mood, and chronic abdominal pain syndrome while in 

the performance of duty. Appellant’s February 23, 1991 and September 13, 1995 SF-50B forms 

documented her enrollment in the CSRS-offset retirement plan. 

The Board finds that appellant received an overpayment of compensation from 

September 1, 2008 to March 5, 2016 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 paid FICA taxes as a federal civilian employee under the CSRS

Interim/Offset system, a precursor to FERS that required contributions to both CSRS and for 

social security. FICA generally applied to certain new hires or former CSRS-covered employees 

who had been separated from service for at least one year and rehired after December 31, 1983.8 

Appellant received age-based SSA benefits after retirement as a result of her contributions to 

SSA under the CSRS interim system. As she received SSA benefits based in part of her federal 

service concurrently with disability compensation from OWCP, without an appropriate offset, 

she received an overpayment of compensation from September 1, 2008 through March 5, 2016. 

Although the Board finds that the fact of overpayment has been established, the case is 

not in posture for decision with respect to the amount of the overpayment or the period of the 

overpayment. SSA provided OWCP with information regarding appellant’s rate of SSA benefits 

beginning September 2008 both with and without FERS. As discussed, however, the record 

supports that appellant was covered under the CSRS-offset retirement plan instead of FERS. It is 

unclear from the record whether the rates under the CSRS-offset plan are the same as the rates in 

the FERS plan. Therefore, the case will be remanded to OWCP to obtain additional information 

from SSA and the Office of Personnel Management regarding appellant’s retirement system and 

her SSA rate with and without any offset required based on her federal civilian service.9 It will 

then recalculate the period and amount of the overpayment. Following this and any other 

development deemed necessary, OWCP shall issue a de novo decision. 

On appeal, appellant contends that she was not a FERS employee, but covered under 

CSRS. As set forth above, the case will be remanded for additional development regarding her

retirement program and any benefits received. 

 

7

5 U.S.C. § 8116(d)(2).

8

See A.P., Docket No. 12-0122 (issued May 7, 2012).

9 D.B., Docket No. 16-1224 (issued June 23, 2017); J.M., Docket No. 12-0954 (issued November 26, 2012).
7

CONCLUSION

The Board finds that appellant received an overpayment of compensation, but that the 

case is not in posture for decision regarding the period or amount of the overpayment.10

ORDER

IT IS HEREBY ORDERED THAT the October 4, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part and the case is 

remanded for further proceedings consistent with this decision of the Board.

Issued: November 3, 2017

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

 

10 In view of the Board’s determination regarding the amount of the overpayment, it is premature to address the 

issues of fault and recovery of the overpayment.