United States Department of Labor

Employees’ Compensation Appeals Board

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L.A., Appellant

and

DEPARTMENT OF COMMERCE, U.S. 

CENSUS BUREAU, Santa Fe, NM, Employer

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Docket No. 20-0949

Issued: December 2, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On March 14, 2020 appellant filed a timely appeal from a September 18, 2019 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate 

Boards docketed the appeal as No. 20-0949.

The issues on appeal before the Board relate to OWCP’s finding of an overpayment of 

wage-loss compensation benefits due to appellant’s alleged concurrent receipt of Federal 

Employees’ Compensation Act2(FECA) wage-loss compensation and Social Security 

Administration (SSA) age-related retirement benefits without an appropriate offset for benefits 

attributable to the Federal Employees Retirement System (FERS). 

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s September 18, 2019 decision was Monday, 

March 16, 2020. Since using March 19, 2020, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. 

Postal Service postmark is March 14, 2019, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.
2

The Board finds that OWCP failed to properly develop the underlying issue of what portion 

of appellant’s SSA age-related retirement benefits were attributable to federal employment. 

OWCP’s procedures provide that an overpayment occurs when FECA compensation is not 

reduced by the FERS/FECA offset amount. Since the SSA will not report an offset amount until 

after SSA benefits are received, an overpayment will almost always occur and will need to be 

calculated for each period in which the offset amount was not withheld from compensation.3 The

offset provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related 

retirement benefits that are attributable to federal service.4 FECA Bulletin No. 97-09 provides that 

FECA benefits have to be adjusted for the FERS portion of SSA age-related retirement 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.5 In identifying the fact and amount of an overpayment of compensation following a 

claimant’s receipt of age-related SSA retirement compensation, the Board has observed that 

OWCP uses a FERS Offset Calculation Worksheet.6 This calculation worksheet is sent to SSA 

and the completed form is returned to OWCP setting forth purported SSA calculations as to the 

effective date and rate of SSA benefits without FERS and the effective date and rate of SSA 

benefits with FERS.7 Following receipt of the purported SSA calculations, a preliminary 

determination of overpayment is issued if a prohibited dual benefit was received.8 

The Board has observed, however, that not all federal employees are enrolled in FERS. 

Some FECA claimants are enrolled in another retirement program, such as the Civil Service 

Retirement System (CSRS). Other federal employees are not entitled to be enrolled in a federal 

retirement program. Therefore, OWCP’s procedures with regard to FERS participants are not 

applicable to all recipients of FECA compensation and SSA age-related retirement benefits. 

Therefore, the information solicited on the FERS Offset Calculation Worksheet that OWCP sends 

to SSA is not applicable to non-FERS claimants and does not establish either the fact or amount 

of an overpayment. 

Herein, the evidence of record establishes that appellant was not enrolled in a federal 

retirement program. On the reverse side of his traumatic injury claim (Form CA-1), the employing 

establishment reported that retirement coverage was not applicable to him. Furthermore, the 

Notification of Personnel Action (Form SF-50) of record notes appellant’s retirement plan only as 

Federal Insurance Contributions Act. As OWCP has not established that he concurrently received 

SSA age-related retirement benefits, based in part on his federal service, and FECA disability 

compensation without appropriate offset, it has not established that he received an overpayment of 

 

3 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, 

Chapter 6.200.1(h), (September 2018).

4 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

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

6

Id.

7

Id.

8 Supra note 2.
3

compensation in the amount of $5,234.53 for the period October 1, 2007 to July 20, 2019. The 

Board therefore finds that the September 18, 2019 decision must be reversed. 

IT IS HEREBY ORDERED THAT the September 18, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: December 2, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board