United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Rocky River, OH, Employer

__________________________________________

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Docket No. 18-1288

Issued: April 24, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On June 13, 2018 appellant, through counsel, filed a timely appeal from a May 18, 2018 

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 to consider 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 Board notes that following the May 18, 2018 decision, OWCP received additional evidence. 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 evidence for 

the first time on appeal. Id.
2

ISSUES

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

overpayment of compensation in the amount of $19,668.87 because he concurrently received 

Social Security Administration (SSA) benefits while also receiving FECA benefits for the period 

March 1, 2016 through October 14, 2017; (2) whether OWCP properly determined that appellant 

was at fault in the creation of the overpayment, thereby precluding waiver of recovery of the 

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

$400.00 every 28 days from appellant’s continuing compensation.

FACTUAL HISTORY

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

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On July 26, 2006 appellant, then a 56-year-old mail carrier, filed an occupational disease 

claim (Form CA-2) alleging that he developed heel pain in his left foot due to walking while in the 

performance of his federal job duties. On June 14, 2007 OWCP accepted appellant’s claim for left 

plantar fasciitis and left calcaneal stress fracture. Appellant stopped work on October 29, 2007. 

He underwent surgical external neurolysis of Baxter’s nerve left heel and subtotal plantar

fasciotomy left foot on that date. Beginning March 19, 2008 OWCP paid appellant wage-loss 

compensation on the periodic rolls. It directed him to report any retirement income, disability 

income, or compensation benefits from a federal agency.

In an informational letter dated March 2, 2012, OWCP informed appellant that FECA 

required his wage-loss compensation benefits to be reduced if he began receiving SSA retirement 

benefits based on his age and federal service. It notified him of his obligation to report receipt of 

such retirement benefits to avoid an overpayment of compensation.

On June 21, 2013 OWCP referred appellant for vocational rehabilitation services. By 

decision dated July 21, 2015, it reduced his wage-loss compensation benefits, effective that date, 

based on his capacity to earn wages in the constructed position of customer service representative. 

On August 3, 2015 appellant, through counsel, requested an oral hearing from an OWCP hearing 

representative. By decision dated May 3, 2016, OWCP’s hearing representative affirmed the 

July 21, 2015 decision. Appellant appealed this decision to the Board and in its April 21, 2017 

decision, the Board affirmed the May 3, 2016 decision of OWCP’s hearing representative.

In completed EN1032 forms signed by appellant on March 25, 2016 and March 29, 2017,

he responded “No” to the question of whether he received benefits from SSA as part of an annuity 

for federal service during the prior 15 months. By signing the forms, appellant certified that he 

understood that he “must immediately report to OWCP any improvement in his medical condition, 

any employment, any change in the status of claimed dependents, any third-party settlement, and 

any change in income from federally[-]assisted disability or benefit programs.” He also certified 

that all the statements made in response to the questions on the form were true, complete, and 

correct to the best of his knowledge and belief. In the March 16, 2016 and March 21, 2017 letters 

accompanying the EN1032 forms, appellant was advised that the information he provided would 

 

4 Docket No. 16-1309 (issued April 21, 2017).
3

be used to decide whether he was entitled to continue receiving these benefits or whether his 

benefits should be adjusted.

On April 11, July 26, and October 5, 2017 OWCP provided SSA with a form for 

calculation of dual benefits. SSA responded on May 9, July 26, and October 18, 2017 and 

indicated that beginning in March 2016 appellant’s SSA rate, including his federal employment 

under FERS, was $2,076.00 per month. The SSA rate that appellant was entitled to without his 

federal employment was $1,071.50. Beginning in December 2016 these rates increased to 

$2,082.20 and $1,074.50 respectively.

In a letter dated October 20, 2017, OWCP informed appellant that he had been receiving a 

prohibited dual benefit resulting in an overpayment of benefits. It noted that the portion of SSA 

benefits earned as a federal employee was part of his retirement and that the receipt of wage-loss 

compensation under FECA and federal retirement simultaneously was prohibited. OWCP adjusted 

appellant’s FECA benefits to account for his SSA offset of $930.00, which along with his health 

benefits of $481.50 reduced his FECA wage-loss compensation payments from the gross amount 

of $1,359.00 to negative $52.54. It further informed appellant that the prohibited dual benefit had 

resulted in an overpayment of compensation for the period March 1, 2016 through 

October 14, 2017.

In a notice dated November 3, 2017, OWCP advised appellant of its preliminary 

determination that he had received a $19,668.87 overpayment of compensation for the period 

March 1, 2016 through October 14, 2017 due to the failure to offset his FECA benefits for SSA 

benefits he had received. It found him at fault in the creation of the overpayment because he 

accepted payments which he knew or should reasonably have known were incorrect. OWCP 

advised appellant that he could submit evidence challenging the fact, amount, or fault finding and 

request waiver of recovery of the overpayment. Additionally, it informed him that within 30 days, 

he could request a telephone conference, a final decision based on the written evidence, or a 

prerecoupment hearing. OWCP requested that appellant complete an enclosed overpayment 

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

On November 14, 2017 appellant requested a waiver and a prerecoupment hearing with 

OWCP’s Branch of Hearings and Review. Appellant disagreed that the overpayment had

occurred.

A hearing regarding the $19,668.87 overpayment was held on April 9, 2018. Appellant 

testified that he believed that his SSA benefits had been increased to compensate him for his 

decreased FECA wage-loss compensation due to the July 21, 2015 loss of wage-earning capacity 

determination.

On April 26, 2018 OWCP received a Form OWCP-20, signed on April 21, 2018, in which 

appellant listed monthly income of $4,615.00, monthly expenses of $3,735.51, and assets of 

$11,100.00.

By decision dated May 18, 2018, an OWCP hearing representative affirmed the 

preliminary determination regarding the $19,668.87 overpayment. He further found that appellant 

was at fault in the creation of the overpayment as he knew or reasonably should have known that 

he was receiving both SSA age-related benefits and OWCP wage-loss compensation benefits 

concurrently and therefore denied waiver of recovery of the overpayment. OWCP’s hearing 
4

representative reviewed appellant’s financial documents and found that his monthly income 

exceeded his monthly debts by $880.00 per month. He determined that an offset of $400.00 every 

28 days from appellant’s continuing FECA compensation would allow for repayment of the 

overpayment of compensation without depriving appellant of the funds needed for ordinary and 

necessary household expenses. OWCP’s hearing representative determined that there was no 

evidence of record that recovery would be contrary to “equity and good conscience.”

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 SSA benefits that are attributable to federal service of the 

employee.7 FECA Bulletin No. 97-9 provides 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

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

at 62 years of age.

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 $19,668.87.

OWCP found that an overpayment of compensation was created in the amount of 

$19,668.87 for the period March 1, 2016 through October 14, 2017. The overpayment was based 

on the evidence received from SSA on April 11, July 26, and October 5, 2017 regarding benefits 

paid to appellant. The record indicates that while appellant was receiving compensation for total 

disability under FECA he concurrently received SSA age-based retirement benefits. A claimant 

cannot receive both compensation for wage-loss and SSA retirement benefits attributable to federal 

 

5 5 U.S.C. § 8102(a).

6

Id. at § 8116.

7 20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

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

9 20 C.F.R. § 404.310.

10 Id. at § 404.409.
5

service for the same period.11 The information provided by SSA indicated that appellant received 

age-based SSA benefits that were attributable to federal service during the period March 1, 2016 

through October 14, 2017. 

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

attributable to federal service must be calculated. OWCP received evidence 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 March 1, 2016 and continuing through October 14, 2017. OWCP provided its 

calculations for each relevant period based on the SSA worksheet. Appellant has not contested 

the amount of the $19,668.87 overpayment and no contrary evidence has been provided to show 

that OWCP’s calculations were incorrect. The Board has reviewed OWCP’s calculation of 

benefits received by appellant for the period March 1, 2016 through October 14, 2017 and finds 

that an overpayment of compensation in the amount of $19,668.87 was created.12

LEGAL PRECEDENT -- ISSUE 2

Section 8129(a) of FECA provides that where an overpayment of compensation has been 

made “because of an error of fact or law,” adjustment shall be made by decreasing later payments 

to which an individual is entitled.13 The only exception to this requirement is a situation which 

meets the tests set forth as follows in section 8129(b): “Adjustment or recovery by the United 

States may not be made when incorrect payment has been made to an individual who is without 

fault and when adjustment or recovery would defeat the purpose of this subchapter or would be 

against equity and good conscience.”

14

 No waiver of payment is possible if the claimant is not 

“without fault” in helping to create the overpayment.15

In determining whether an individual is not “without fault” or alternatively “at fault” in the 

creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations 

provides in relevant part: 

“A recipient who has done any of the following will be found to be at fault with respect 

to 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 

 

11 See supra notes 7 and 8.

12 See S.O., supra note 7; G.T., Docket No. 15-1314 (issued September 9, 2016).

13 5 U.S.C. § 8129(a).

14 Id. at § 8129(b).

15 See S.O., and L.J., supra note 7.
6

(3) Accepted a payment which he or she knew or should have known to be 

incorrect.”

16

Section 10.433(b) of OWCP’s regulations provides: 

“Whether or not OWCP determines that an individual was at fault with respect to the 

creation of an overpayment depends on 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.”

17

ANALYSIS -- ISSUE 2

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

of the $19,668.87 overpayment of compensation, thereby precluding waiver of recovery of the 

overpayment. 

OWCP applied the standard of 20 C.F.R. § 10.433(a)(3) in determining that appellant was 

at fault in the creation of the $19,668.87 overpayment. In order for OWCP to establish that he was 

at fault in creating the overpayment of compensation, it must establish that appellant accepted a 

payment which he knew or should have known to be incorrect.18

In a March 19, 2008 notice, OWCP informed appellant that he was being placed on the 

periodic compensation rolls and it advised him that he was required to immediately inform it upon 

filing for or receiving SSA retirement benefits. Appellant began to receive SSA benefits as part 

of an annuity for federal service on March 1, 2016. He had regularly completed EN1032 forms 

which specifically instructed him to report any monies or income or change in monies or income 

from federally-assisted disability or benefit programs, and any retirement benefits or SSA benefits 

under FERS. The evidence of record establishes that for the EN1032 forms dated March 25, 2016 

and March 29, 2017, appellant failed to report his receipt of SSA benefits as part of an annuity for 

federal service. These EN1032 forms provided information to appellant regarding reporting 

income or monies from federally-assisted programs such as SSA. 

The record reflects that on EN1032 forms dated March 25, 2016 and March 29, 2017, each 

of which covered the 15 months prior to the date signed, appellant signed and acknowledged, “I 

understand that I must immediately report to OWCP any employment or employment activity, any 

change in the status of claimed dependents, any third-party settlement, and any monies or income 

or change in monies or income from federally-assisted disability or benefit programs.” Each 

EN1032 informed appellant of the consequences of not accurately reporting his employment 

activities and earnings, such as being subjected to criminal penalties and losing the right to receive 

workers’ compensation. In each of these forms, he reported receiving no SSA benefits as part of 

an annuity for federal service. 

 

16 20 C.F.R. § 10.433(a).

17 Id. at 10.433(b).

18 See supra note 15.
7

Consequently, the evidence of record establishes that appellant knew or should have known 

that he was not entitled to receive dual payments from both SSA and FECA and therefore he 

accepted payments which he knew or should have known to be incorrect.

19 The Board therefore 

finds that OWCP met its burden of proof to establish that appellant was at fault in the creation of 

the $19,668.87 overpayment, thereby precluding waiver of recovery of the overpayment. 

LEGAL PRECEDENT -- ISSUE 3

Section 10.441(a) of OWCP’s regulations provides in pertinent part: 

“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 any hardship.”

20

ANALYSIS -- ISSUE 3

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

compensation by deducting $400.00 every 28 days from appellant’s continuing compensation 

payments.

In determining that appellant could repay the overpayment through $400.00 deductions 

from continuing compensation payments, OWCP took into consideration the financial information 

submitted by appellant as well as the factors set forth in 20 C.F.R. § 10.441 and found that this 

method of recovery would minimize any resulting hardship on appellant. It discussed appellant’s 

financial circumstances and noted that appellant’s income exceeded his expenses by $880.00 per 

month. Therefore, OWCP properly required recovery of the overpayment by deducting $400.00 

from appellant’s compensation payments every 28 days.

CONCLUSION

The Board finds that OWCP properly determined that appellant received a $19,668.87 

overpayment of compensation because he concurrently received SSA and FECA benefits for the 

period March 1 through October 14, 2017. The Board further finds that OWCP properly 

determined that appellant was at fault in the creation of the overpayment of compensation, thereby 

precluding waiver of recovery of the overpayment. The Board further finds that OWCP properly 

required recovery of the overpayment by deducting $400.00 from appellant’s continuing 

compensation payments every 28 days.

 

19 See C.N., Docket No. 16-0134 (issued March 8, 2016) (finding that a claimant who failed to report SSA benefits 

on multiple EN1032 forms was at fault in the creation of an overpayment received during a period covered by the 

forms).

20 20 C.F.R. § 10.441(a); see S.O., supra note 7; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).
8

ORDER

IT IS HEREBY ORDERED THAT the May 18, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 24, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board