United States Department of Labor

Employees’ Compensation Appeals Board

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L.B., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, Detroit, MI, 

Employer

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Docket No. 19-1322

Issued: January 27, 2020

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 28, 2019 appellant filed a timely appeal from a December 13, 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 $67,276.38 for the period January 10, 2010 through March 4, 2017 because she 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the December 13, 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 

additional evidence for the first time on appeal. Id.
2

concurrently received FECA benefits and age-related retirement benefits from the Social Security 

Administration (SSA) without appropriate offset; (2) whether OWCP properly denied waiver of 

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

overpayment by deducting $278.55 from appellant’s continuing compensation payments every 28 

days.

FACTUAL HISTORY

On November 22, 2010 appellant, then a 78-year-old tax examining technician, filed a 

traumatic injury claim (Form CA-1) alleging that on November 10, 2010 she tripped and fell over 

a cord injuring her ankle, foot, and wrist while in the performance of duty. She stopped work on 

the date of injury. Appellant received continuation of pay from November 11 through 

December 25, 2010. On January 14, 2011 OWCP accepted her claim for left muscle spasm. On 

February 15, 2011 it expanded acceptance of appellant’s claim to include left ankle sprain and left 

foot tenosynovitis. On May 3, 2011 appellant returned to work for two hours a day, two days a 

week. On November 16, 2011 OWCP expanded acceptance of her claim to include edema, 

effusion of the left lower leg, and left tarsal tunnel syndrome. It paid appellant wage-loss 

compensation on the supplemental rolls as of December 26, 2010.

In a letter dated January 25, 2012, OWCP informed appellant that she was placed on the 

periodic compensation rolls effective January 15, 2012 and notified her of her obligations 

regarding completing an EN1032 form which required the reporting of retirement income, 

disability income, and/or compensation benefits she received from any federal agency.

In a February 3, 2012 telephone memorandum (Form CA-110), OWCP’s claims examiner 

noted that appellant reported that she had been receiving SSA benefits for years. She informed 

appellant that she was not entitled to receive SSA age-related benefits and FECA wage-loss 

compensation for the same period and that an offset of benefits would be required. On January 11, 

2013 the employing establishment removed appellant from service. Appellant’s personnel records 

indicate that her date-in-service was June 26, 1986 and that she was covered by the Federal 

Employees Retirement System (FERS).

On February 20, 2013 appellant completed an EN1032 form which asked that she report 

any benefits received from the SSA received as part of an annuity under FERS, but indicated that 

she was not to report any benefits received from the SSA on account of employment in the private 

sector. She responded “no” to the question of whether she received benefits from SSA as part of 

an annuity for federal service.

On October 23, 2013 the Office of Personnel Management (OPM) informed OWCP that 

appellant had elected to receive FECA compensation benefits.

In an EN1032 form dated February 18, 2014, appellant denied receiving benefits from SSA 

as part of an annuity for federal service. She completed an EN1032 form similarly on 

February 20, 2015. In an EN1032 form dated March 7, 2016, appellant indicated that she was not 

receiving benefits from SSA. She completed an EN1032 form similarly on February 28, 2017.
3

On March 3, 2017 OWCP requested that SSA provide a dual benefits calculation. In a 

form dated March 7, 2017, SSA responded: effective January 2010 appellant’s SSA rate with 

FERS was $1,310.40 and without FERS was $619.50; effective, January 2011 her SSA with FERS 

was $1,371.80 and without FERS was $619.50; effective December 2011 appellant’s SSA rate 

with FERS was $1,421.20 and without FERS was $641.80; effective December 2012 her SSA rate 

with FERS was $1,445.30 and without FERS was $652.60; effective December 2013 her SSA rate 

with FERS was $1,466.90 and without FERS was $662.40; effective December 2014 her SSA rate 

with FERS was $1,491.80 and without FERS was $673.60; effective December 2015 appellant’s 

SSA rate with FERS was $1,491.80 and without FERS was $673.60; and effective December 2016 

her SSA rate with FERS was $1,496.20 and without FERS was $675.50.

In a March 31, 2017 letter, OWCP informed appellant that she had been receiving SSA 

age-related retirement benefits since at least January 1, 2010 and that a portion of her SSA benefits 

were attributed to her federal service. It found that if her federal service was not included in her 

SSA computation she would be entitled to $675.50 rather than $1,496.20, and that her monthly 

FERS offset was $820.70 and the 28-day offset was $757.57. OWCP reduced appellant’s 28-day 

compensation payments by $757.57.

In a preliminary determination dated September 14, 2017, OWCP notified appellant that 

she had received an overpayment of compensation in the amount of $67,276.38 because her 

compensation benefits had not been reduced for the period January 10, 2010 through March 4, 

2017 by the portion of her SSA benefits that were attributable to her federal service. 

OWCP calculated the overpayment amount by determining the difference between her SSA 

amount with and without FERS for each period. It provided a chart listing the SSA rate paid, the 

amount due with FERS offset, and the daily rate with FERS offset. OWCP found that for the 

period January 10 through December 31, 2010 or 356 days, appellant received an overpayment of 

compensation in the amount of $8,108.58. It combined this sum with that of $59,167.80 for the 

additional periods from January 1, 2011 through March 4, 2017 totally to reach a total 

overpayment of $67,276.38. OWCP further made a preliminary determination that appellant was 

at fault in the creation of the overpayment because she knew or should have known that she had 

accepted compensation to which she was not entitled. It requested that she complete the enclosed 

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

documentation. Additionally, OWCP notified appellant that, within 30 days of the date of the 

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

a prerecoupment hearing.

On October 9, 2017 appellant requested a telephone conference with OWCP on the issues 

of fault and waiver of the overpayment. She provided a completed Form OWCP-20 and supporting 

financial documents. Appellant listed her total monthly income $2,566.17 including SSA benefits 

and OWCP benefits in the amounts of $1,496.00 and $1,070.17, respectively. She listed her 

monthly expenses as $1,766.61. Appellant noted that her date-of-injury was November 10, 2010, 

but that OWCP had calculated her overpayment as beginning January 10, 2010 and that this 

resulted in an overpayment for 2010 of $8,108.58 when she only received FECA compensation 

beginning November 10, 2010.
4

In an EN1032 form dated March 7, 2018, appellant indicated that she was receiving SSA 

benefits in the amount of $1,526.00 per month.

On December 13, 2018 OWCP’s claims examiner spoke to appellant regarding the 

overpayment. He explained how it was created and noted that normally OWCP deducted 25 

percent of the monthly amount to repay the overpayment.

By decision dated December 13, 2018, OWCP finalized its preliminary overpayment 

determination and found an overpayment of compensation in the amount of $67,276.38 for the 

period January 10, 2010 through March 4, 2017 because it had failed to offset appellant’s 

compensation payments for the portion of her SSA age-related retirement benefits that were 

attributable to her federal service. It found she was not at fault in the creation of the overpayment. 

OWCP noted that appellant had an excess of $799.00 every month and denied waiver of recovery 

as the evidence did not substantiate that recovery would defeat the purpose of FECA or be against 

equity and good conscience. It determined that it would require recovery of the overpayment by 

deducting $278.55 from appellant’s continuing compensation payments every 28 days.

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 However, section 8116 also 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.4

Section 10.421(d) of OWCP’s regulations requires that it reduce the amount of 

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

employee.5 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.6

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision.

Beginning November 10, 2010, appellant received FECA wage-loss compensation while 

she continued to receive age-related retirement benefits from SSA. As noted, a claimant cannot 

receive concurrent compensation for wage loss and SSA age-related retirement benefits 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); S.M., Docket No. 17-1802 (issued August 20, 2018).

6 FECA Bulletin No. 97-09 (issued February 3, 1997); N.B., Docket No. 18-0795 (issued January 4, 2019).
5

attributable to federal service for the same period.7 The fact of overpayment is therefore 

established. 

The Board finds, however, that OWCP improperly calculated appellant’s overpayment for 

the period January 10, 2010 through March 4, 2017. Appellant’s accepted employment injury 

occurred on November 10, 2010. She, therefore, did not receive wage-loss compensation under 

FECA until after her November 10, 2010 employment injury. Consequently, the SSA benefits 

appellant received prior to November 10, 2010 were not dual benefits and should not have been 

included in the overpayment calculation. OWCP improperly calculated her overpayment based 

on her dual SSA and FECA benefits beginning January 10, 2010 rather than the appropriate date 

of November 10, 2010. 

A claimant is entitled to an overpayment decision that clearly explains how the amount 

was calculated.8 The Board finds that the overpayment decision in this case does not provide such 

an explanation. Therefore, the amount of the overpayment has not been established.

On remand OWCP shall determine the exact amount of the overpayment of compensation, 

and the correct dates during which the overpayment occurred. It should then issue a new 

preliminary overpayment determination, with an overpayment action request form, an 

overpayment recovery questionnaire, and instructions for appellant to provide supporting financial 

information. After this and other such further development as deemed necessary, OWCP shall 

issue a de novo decision.9

CONCLUSION

The Board finds that this case is not in posture for decision.

 

7 5 U.S.C. § 8116(d)(2); J.T., Docket No. 18-1791 (issued May 17, 2019).

8 A.J., Docket No. 18-1152 (issued April 1, 2019); J.W., Docket No. 15-1163 (issued January 13, 2016); see also 

O.R., 59 ECAB 432 (2008) with respect to overpayment decisions, OWCP must provide clear reasoning showing how 

the overpayment was calculated); see Jenny M. Drost, 56 ECAB 587 (2005) (to comply with OWCP’s overpayment 

procedures, an overpayment decision must contain a clearly written explanation indicating how the overpayment was 

calculated).

9 As the case is not in posture for decision regarding the amount of overpayment, the issue of waiver of recovery of 

the overpayment is moot.
6

ORDER

IT IS HEREBY ORDERED THAT the December 13, 2018 decision of the Office of 

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

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

Issued: January 27, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board