United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.E., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Florence, KY, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0856

Issued: December 31, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On March 15, 2019 appellant filed a timely appeal from a January 16, 2019 decision of the 

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

docketed the appeal as No. 19-0856.

On January 29, 1988 appellant, then a 48-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that on January 28, 1988 she injured her back while in the performance of 

duty. OWCP accepted the claim for cervical strain and a strain of the right rotator cuff. It 

subsequently expanded acceptance of the claim to include right lateral epicondylitis, degenerative 

disc disease with radiculopathy, tendinitis, and permanent aggravation of a disc condition at C5-6. 

Appellant stopped work on January 28, 1988. OWCP paid her wage-loss compensation for total 

disability beginning March 14, 1988.1

On October 19, 2017 OWCP notified appellant of its preliminary determination that she 

had received an overpayment of compensation in the amount of $8,278.13 for the period January 1, 

 

1 By decision dated July 10, 2002, OWCP reduced appellant’s wage-loss compensation based on its finding that 

her actual earnings as a modified clerk effective May 6, 2002 fairly and reasonably represented her wage-earning 

capacity. 
2

2004 through June 24, 2017 as it had failed to appropriately offset the portion of her Social Security 

Administration (SSA) benefits attributable to her federal service from her wage-loss compensation 

benefits. It further advised her of its preliminary finding that she was at fault in the creation of the 

overpayment.

On November 21, 2017 appellant requested a prerecoupment hearing before an OWCP 

hearing representative. At the June 14, 2018 telephonic prerecoupment hearing, she contended 

that she received SSA benefits based on her husband’s earnings subsequent to his death on 

February 18, 2011. Appellant further questioned whether she was covered under the Federal 

Retirement System (FERS) rather than the Civil Service Retirement System (CSRS). 

Subsequent to the hearing, appellant submitted retirement information from the Office of 

Personnel Management (OPM) and SF-50s from the employing establishment indicating that she 

had FERS retirement coverage. 

By decision dated August 23, 2018, OWCP’s hearing representative remanded the case for 

OWCP to obtain clarification from SSA regarding whether appellant received SSA survivor’s 

benefits or age-related benefits due to her federal service. She noted that the evidence of record

established that appellant had FERS retirement coverage.

On remand, by letter dated September 5, 2018, OWCP requested that SSA specify whether 

appellant had received SSA benefits attributable to her federal service for the period January 1, 

2004 through June 24, 2017, noting that she also had received SSA survivor’s benefits beginning 

February 18, 2011. 

SSA did not respond to OWCP’s request for clarification. 

By decision dated January 16, 2019, OWCP found that appellant had received an 

overpayment of compensation in the amount of $8,278.13 for the period January 1, 2004 through 

June 24, 2017 because it had failed to offset the amount of SSA benefits that she received 

attributable to her federal service from her wage-loss compensation.2 It noted that it had not been 

able to obtain additional information from SSA regarding her benefits. OWCP found that appellant 

was without fault in the creation of the overpayment of compensation, but denied waiver of 

recovery of the overpayment. It determined that it would recovery the overpayment by 

withholding $170.83 from her continuing compensation payments every 28 days.

The Board has duly considered the matter and finds that the case is not in posture for 

decision. OWCP’s hearing representative remanded the case for OWCP to clarify whether 

appellant had received SSA benefits as part of FERS based on her federal service or survivor’s 

benefits from her husband. She instructed OWCP to determine the exact amount of the benefits, 

if any, she received due to her federal service. On remand OWCP attempted to obtain information 

from SSA; however, SSA failed to respond to its request. It has the burden of proof to establish 

that appellant received an overpayment of wage-loss compensation of $8,278.13 based on its 

failure to offset her SSA benefits based on her federal service for the period January 1, 2004 

through June 24, 2017. The offset provision of FECA applies to SSA benefits that are attributable 

 

2 OWCP issued a preliminary determination of overpayment on December 12, 2018.
3

to federal service.3 As OWCP has not established that appellant received benefits from SSA in 

the amount of $8,278.13 based on her federal service for the period in question, rather than 

survivor’s benefits from her deceased spouse, it has not met its burden of proof.4 The Board has 

held that, in an overpayment situation, OWCP must explain the basis for its finding of overpayment 

and how the amount of overpayment was calculated.5 

Accordingly, the case will be remanded to OWCP for it to again request clarification from 

SSA regarding the amount, if any, of age-related retirement benefits appellant received based on 

her federal service.6 Following receipt of that information it will then determine whether she 

received an overpayment of compensation, and the period and amount of the overpayment. 

Following this and any further development deemed necessary, OWCP shall issue a de novo

decision.

IT IS HEREBY ORDERED THAT the January 16, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this order of the Board.

Issued: December 31, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

3 5 U.S.C. § 8116(d)(2); 20 C.F.R. §10.421(d); A.C., Docket No. 19-0174 (issued July 9, 2019).

4 See A.C., id. (finding that OWCP had not met its burden of proof to establish an overpayment of compensation 

when it had not established that appellant received benefits under FERS rather than CSRS).

5 See M.M. (J.M.), Docket No. 17-0560 (issued August 23, 2017).

6 See generally D.B., Docket No. 16-1224 (issued June 23, 2017) (finding that OWCP must clarify whether the 

offset rates under CSRS offset were the same as in the FERS retirement plan).