United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Baton Rouge, LA, Employer

__________________________________________

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Docket No. 18-0772

Issued: November 14, 2018

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 February 28, 2018 appellant, through counsel, filed a timely appeal from a December 7, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of the case.

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $222,371.35 as she concurrently received Office of Personnel Management (OPM) 

 

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. 
2

retirement benefits while receiving FECA compensation benefits for the period April 26, 2007 

through October 19, 2013; and (2) whether OWCP properly found appellant at fault in creating the 

overpayment, thereby precluding waiver of recovery of the overpayment.

FACTUAL HISTORY

On February 11, 2007 appellant, then a 48-year-old mail processing clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on January 25, 2007 she injured her right wrist and forearm

while in the performance of her federal employment duties. She stopped work on February 9, 

2007 and did not return. OWCP accepted the claim for brachial neuritis or radiculitis and cervical 

radiculopathy.

By letter dated May 2, 2007, OWCP informed appellant that she was being placed on the 

periodic compensation rolls. It explained that she would receive a regular payment of $2,504.98 

(net) for the period April 15 to May 12, 2007 and every 28 days thereafter. OWCP’s May 2, 2007 

letter also included a Form EN1049, which informed appellant of her rights and responsibilities as 

a FECA benefits recipient. On the subject of retirement benefits, the EN1049 advised appellant 

as follows: 

“You must report to the OWCP any retirement income you receive from any 

[f]ederal agency. This is because a person who receives compensation benefits 

under the FECA is not permitted to receive benefits under the Civil Service 

Retirement System (CSRS) or the Federal Employees Retirement System (FERS).”

On an EN1032 form, signed by appellant on July 24, 2013, she indicated that she was 

receiving retirement benefits from the Office of Personnel Management (OPM).3 OWCP then 

forwarded a form to OPM, which it completed on October 29, 2013. OPM’s response indicated 

that appellant had received OPM retirement benefits of $2,386.00 per month commencing

April 26, 2007.

OWCP suspended appellant’s FECA compensation effective October 20, 2013. On 

November 30, 2013 appellant elected to receive OPM retirement benefits, effective 

December 1, 2013. 

By letter dated February 4, 2014, OWCP informed appellant that annuity benefits paid by 

OPM, including any lump-sum, and wage-loss compensation benefits paid by OWCP were not 

payable for the same period of time, and that employees entitled to both must elect which benefit 

to receive. It informed her that if she elected OPM benefits, she would still be entitled to FECA 

medical benefits. OWCP also informed appellant of the compensation she had received from 

April 15, 2007 to October 19, 2013 and attached an election form.

Appellant elected to receive FECA benefits effective April 1, 2014. 

 

3 Appellant had submitted EN1032 forms beginning July 16, 2007. 
3

By letter dated March 28, 2014, OWCP informed OPM that appellant had elected FECA 

benefits, effective April 1, 2014. On April 7, 2014 it asked OPM to provide written confirmation 

of the beginning and ending dates, with dollar amounts, of OPM benefits appellant had received.

On April 24, 2014 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $222,667.91 had been created for the period April 26, 2007 through 

October 29, 2013. It explained that the overpayment occurred because appellant received both 

FECA benefits and OPM retirement benefits during this period. OWCP found appellant at fault 

because she accepted a payment she knew or should have reasonably known was incorrect. It

provided an overpayment action request and overpayment recovery questionnaire (OWCP-20) and 

afforded appellant 30 days to respond. An attached memorandum shows appellant’s wage-loss 

compensation for this period. 

On May 6, 2014 appellant requested a prerecoupment hearing with OWCP’s Branch of 

Hearings and Review on the issues of fact and amount of the overpayment and fault in the creation

of the overpayment. She sent in a second hearing request on May 13, 2014, alleging that there 

were errors because she filed for retirement in 2011 and received her first payment from OPM in 

2012. Appellant forwarded an overpayment recovery questionnaire listing monthly income of 

$1,921.44 and monthly expenses of $2,060.00. She again indicated that she did not receive OPM 

retirement benefits until 2012 and noted that with the OPM benefits she received, she put a down 

payment on a house and had dental work done. Appellant related that she thought she had received 

a schedule award. She submitted a third hearing request on May 23, 2014, indicating that her only 

income from April 2007 to April 2012 was from OWCP. 

On May 25, 2014 appellant elected retirement benefits from OPM, effective June 1, 2014. 

At the hearing, held on December 15, 2014, counsel objected to the overpayment, 

indicating that, if there were dual payments, appellant had the right to choose which agency she 

would repay. Appellant testified that beginning in November 2011 she began receiving both OPM 

retirement benefits and FECA compensation, but thought she was receiving schedule award 

compensation. She acknowledged that she had not received documentation indicating that she had 

ever been granted a schedule award. 

Following the hearing, appellant forwarded a copy of correspondence dated October 27, 

2011 in which OPM indicated that her application for disability retirement had been approved. 

OPM informed appellant that, in general, she could not receive annuity payments from both OPM 

and OWCP for the same period, but could receive monetary benefits from both if OWCP had 

granted a schedule award, if she was receiving OWCP payments due to the death of another person 

and she was receiving retirement benefits for her own federal service, or if she was receiving a 

third-party settlement in lieu of “OWCP benefits.” Appellant forwarded information from OPM 

regarding her retirement benefit calculation. This indicated that her first payment, for the period 

April 26, 2007 through April 30, 2012 was a net amount of $79,658.38, and that her first regular 

net payment would be $1,909.93.

Appellant forwarded an updated overpayment questionnaire, which she signed on 

January 1, 2015. She listed monthly income of $1,960.00, monthly expenses of $2,600.00, and 
4

$808.00 in total additional funds. Appellant attached financial information and indicated that she 

thought the lump sum she received when granted disability retirement was retroactive pay.

By decision dated March 4, 2015, an OWCP hearing representative remanded the case to 

OWCP for further development. She indicated that OWCP should clarify with OPM the period of 

receipt of OPM benefits, the effective eligibility date, and the first payment date and period of the 

payment. It was to confirm appellant’s date of election of benefits between OWCP and OPM and 

ensure that appellant indicated the period for which she was making the election. Following 

clarification as noted, OWCP was to provide a new preliminary overpayment determination.

On September 22, 2015 and January 13, 2016 OWCP requested additional information 

from OPM. In a response received on April 1, 2016, OPM informed OWCP that appellant’s OPM 

benefits commenced on April 26, 2007 and continued to the present (March 31, 2016), that her 

effective eligibility date was April 26, 2007, and that on May 14, 2012 she was paid a lump sum 

for the period April 26, 2007 to April 30, 2012. 

On July 7, 2016 OWCP again issued a preliminary determination that an overpayment of 

compensation in the amount of $222,667.91 had been created for the same period April 26, 2007 

through October 29, 2013. It explained that the overpayment occurred because appellant 

concurrently received both FECA benefits and OPM retirement benefits during this period. 

Appellant was found at fault because she accepted a payment she knew or should have reasonably 

known was incorrect. OWCP provided an overpayment action request and overpayment recovery 

questionnaire. It afforded appellant 30 days to respond. 

On July 27, 2016 counsel requested a prerecoupment hearing. Appellant requested a 

hearing on August 2, 2016. She submitted an overpayment questionnaire listing monthly income 

of $2,054.00 and monthly expenses of $2,375.00 and indicated that she had $3,683.00 in additional 

funds. Appellant forwarded an agency checklist for retirement dated May 3, 2011, completed by 

an employing establishment human resources associate. She also forwarded financial information. 

By decision dated February 2, 2017, an OWCP hearing representative set aside the July 7, 

2016 preliminary overpayment determination. She found that OWCP had failed to follow the 

instructions outlined in the March 4, 2015 hearing representative’s decision. The hearing 

representative noted that OWCP did not ensure that appellant specified her election and the period 

for which she was making the election. She further found that, while OWCP indicated that 

appellant was overpaid from April 26, 2007 to October 29, 2013, the record indicated that she last 

received FECA benefits on October 19, 2013, and that, even though OWCP noted that a worksheet 

was attached to its July 7, 2016 preliminary determination, nothing was attached to indicate on 

what specific period the overpayment was based. On remand, the hearing representative instructed 

OWCP to send appellant a new election of benefits form, asking her to confirm whether she wished 

to elect OWCP or OPM benefits and confirm the date of the election. Following clarification, 

OWCP should issue a new preliminary overpayment determination, if applicable, which was to 

include the period and amount of the overpayment with a detailed explanation to support how the 

figure was calculated.
5

By letter dated February 6, 2017, OWCP asked appellant to select a date for election 

between FECA and OPM benefits. It attached a CA-1102 form which explained the process of 

electing benefits and a CA-1105 election of benefits form for her completion. 

OWCP mailed appellant second and third requests for her to complete attached election of 

benefits forms on March 31 and May 12, 2017.4

By letter dated May 22, 2017, OWCP notified counsel that it had sent election forms to 

appellant on three occasions, per the February 2, 2017 OWCP hearing representative decision, and 

that she had not responded. It requested counsel to contact appellant and ask that she determine 

whether she wished to receive benefits from OPM or OWCP, and to elect an effective date. OWCP 

informed counsel that, if no response was received within 30 days of the date of the letter, an 

overpayment would be declared from her effective the date of OPM retirement through 

October 19, 2013.

In correspondence dated August 3, 2017, counsel informed appellant that the law did not 

accept the type of explanation she gave as a basis for waiving a right, noting that she received two 

benefits when she should not have. He indicated that OWCP had the right to declare an 

overpayment. Counsel encouraged appellant to submit an election form. By letter of even date, 

he also contacted OWCP, indicating that appellant wished to pay back OPM rather than OWCP, 

and asked that it send her a schedule award so she could begin to start the election process.

By letter dated October 11, 2017, OWCP informed appellant of the procedural history of 

the overpayment and noted that election of benefits forms had been mailed to her on February 6, 

March 31, and May 22, 2017, to which she had not responded. It notified her that, in order for the 

overpayment to be further reviewed, it was imperative that she return the election of benefits form 

within the next 30 days. Appellant did not respond.

By decision dated December 7, 2017, OWCP finalized the overpayment, finding that an 

overpayment of compensation in the amount of $222,371.35 had been created for the period 

April 26, 2007 through October 19, 2013. It noted that she did not respond to its letters dated 

February 6, March 31, and May 12, 2017 and found her at fault because she knowingly accepted 

compensation to which she knew or should have known she was not entitled to receive. Thus, 

OWCP denied waiver of recovery and requested repayment in full. It attached computer printouts 

documenting the FECA compensation appellant had received for the period April 26, 2007 through 

October 19, 2013 and an overpayment worksheet describing its calculation of the overpayment.

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) provides that while an employee is receiving workers’

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

 

4 The correspondence was properly sent to appellant’s address of record.

5 5 U.S.C. § 8102(a).
6

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.9

ANALYSIS -- ISSUE 1

The Board finds that an overpayment of compensation in the amount of $222,371.35 was 

created for the period April 26, 2007 through October 19, 2013 because appellant concurrently 

received FECA wage-loss compensation and OPM retirement benefits for this period.10

The Board initially notes that OWCP’s decision dated December 7, 2017 contains a 

typographic error. On that decision OWCP indicated an overpayment of compensation in the 

amount of $222,371.35. As properly calculated on the overpayment worksheet attached to the 

decision, the correct amount of the overpayment is $222,371.45.11 The Board deems this error 

harmless and will modify the amount of the overpayment to $222,371.45.12

The record indicates that appellant began receiving FECA benefits on the periodic rolls

commencing April 15, 2007, and that she also began receiving OPM retirement benefits 

commencing April 26, 2007. Further information received from OPM indicated that appellant’s 

first OPM payment, made on May 14, 2012, was a lump sum for the period April 26, 2007 to 

 

6 5 U.S.C. § 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. 11-428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued March 30, 1994)

10 The Board notes that OWCP gave appellant ample opportunity to comply with the hearing representative’s 

instructions in the February 2, 2017 decision. On February 6, March 31, and May 12, 2017 OWCP asked appellant 

to complete an attached election form. On August 3, 2017 counsel also encouraged appellant to submit an election 

form. Appellant did not submit an election form at any time subsequent to the February 2, 2017 decision. OWCP, 

therefore, properly issued a final overpayment decision on December 2, 2017. 

11 In calculating the first period of overpayment, OWCP noted that an automatic roll payment was made for the 

period April 15 to May 12, 2007 in the net amount of $2,504.98. It divided that amount by 28 days and multiplied it 

by 11 days (for the period April 15 to 26, 2007), to yield $984.10, which it subtracted from $2,504.98, to yield 

$1,520.88, the amount of this periodic FECA compensation to which appellant was not entitled. OWCP worksheets 

established that appellant received total net FECA compensation of $223,892.23 for the period April 15, 2007 to 

October 19, 2013. OWCP then subtracted $1,520.88 from $223,892.23, finding an overpayment of compensation of 

$222,371.45.

12 See G.T., Docket No. 15-1314 (issued September 9, 2016).
7

April 30, 2012. In documentation submitted by appellant, OPM informed her that a direct deposit 

had been made to her financial institution for $79,658.38, net benefits due from April 26, 2007 

through April 30, 2012. OWCP calculations show that in total appellant received $222,371.45 in 

FECA compensation for the period April 26, 2007 to October 19, 2013 when it was suspended. 

As a beneficiary may not receive wage-loss compensation concurrently with a federal 

retirement or survivor annuity,13 an overpayment in compensation was created.14 The clear 

language of section 8116(a) of FECA, section 10.421(a) of OWCP’s implementing regulations, 

and OWCP procedures prohibits the receipt of FECA wage-loss benefits and a federal annuity.15

OWCP afforded appellant multiple opportunities to elect FECA benefits, rather than OPM 

retirement benefits. Appellant did not respond with an election of FECA benefits during the period 

April 26, 2007 through October 19, 2013, therefore the FECA benefits she received during this 

time period constitute an overpayment of compensation.16 

As appellant received $222,371.45 in FECA benefits while concurrently receiving OPM 

retirement benefits, an overpayment of compensation in that amount was created.

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.”

17

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 

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; or (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 

 

13 Id.

14 See Franklin L. Bryan, 56 ECAB 310 (2005).

15 5 U.S.C. § 8116(a); 20 C.F.R. § 10.421(a), Federal (FECA) Procedure Manual, supra note 9.

16 Martin L. Stringer, Docket No. 01-0820 (issued June 24, 2002). 

17 Id. at § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).
8

should have known to be incorrect. (This provision applies only to the overpaid 

individual).”

18

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.19

ANALYSIS -- ISSUE 2

The Board finds that appellant was at fault in the creation of the $222,371.45 overpayment 

of compensation for the period April 26, 2007 to October 19, 2013. 

OWCP found appellant at fault because she knowingly accepted compensation to which 

she reasonably should have known she was not entitled.

In its May 2, 2007 letter notifying appellant that she would receive periodic compensation, 

OWCP included an EN1049 form. This clearly advised that a person who received compensation 

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

payments. Moreover, in its letter dated October 27, 2011, OPM notified appellant that she was 

not entitled to receive OPM retirement benefits if she was in receipt of “OWCP benefits” for the 

same period with the exception of payments for a schedule award, payments for the death of 

another person, and a third-party settlement. The record does not support that any of these 

exceptions applied to appellant. 

Appellant was therefore on notice that dual benefits from OPM and FECA were a 

prohibited benefit. She received her first OPM annuity payment in a lump sum on May 12, 2012. 

Although appellant maintained that she thought this was either payment of a schedule award or for 

back pay, these are not credible assumptions. She testified at the December 15, 2014 hearing that 

she had not received communication that she was granted a schedule award, and there is nothing 

in the record on which she could base an assumption that her OPM annuity was for back pay. 

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

which she knew or should have known she was not entitled to receive.20 As such, appellant is not 

entitled to waiver of recovery the $222,371.45 overpayment of compensation.21

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 

 

18 20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

19 Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

20 See S.U., Docket No. 17-1281 (issued April 2, 2018).

21 See E.M., Docket No. 17-1987 (issued July 25, 2018).
9

FECA.22 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.23

As to counsel’s assertion on appeal, there is no evidence to support that the December 2, 

2017 decision was contrary to fact and law.

24

CONCLUSION

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

$222,371.45 for which she was at fault, thereby precluding waiver of recovery of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the December 7, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 14, 2018

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

 

22 Cheryl Thomas, 55 ECAB 610 (2004).

23 Id.

24 The Board notes that appellant filed a schedule award claim on August 25, 2015, and that counsel requested that 

OWCP process the claim and submitted an impairment evaluation on March 9, 2017. OWCP had not issued a schedule 

award decision at the time appellant filed her appeal with the Board on February 28, 2018. The Board’s jurisdiction 

is limited to reviewing final decisions of OWCP. 20 C.F.R. § 501.2(c); see J.B., Docket No. 09-2191 (issued 

May 14, 2010).