United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Nashville, TN, Employer

__________________________________________

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Docket No. 18-1009

Issued: January 29, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 17, 2018 appellant filed a timely appeal from a March 6, 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.

ISSUES

The issues are: (1) whether OWCP properly found an overpayment of compensation in the 

amount of $63,696.96 because appellant concurrently received age-based Social Security 

Administration (SSA) benefits for the period September 1, 2014 to January 6, 2018 while 

receiving FECA benefits; (2) whether it properly found appellant at fault in the creation of the 

overpayment and thus not entitled to waiver of recovery of the overpayment; and (3) whether 

OWCP properly required recovery of the overpayment by deducting $425.00 every 28 days from 

appellant’s continuing compensation.

 

1 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

On June 3, 2004 appellant, then a 55-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he injured his lower back while in the performance of duty. 

OWCP accepted the claim for aggravation of lumbar degenerative disc disease. 

Appellant stopped work on June 13, 2012 when he underwent lumbar spine surgery. By 

letter dated July 11, 2012, OWCP informed him that he was being placed on the periodic 

compensation rolls. It informed appellant of his obligations regarding completing an EN1032 

form. OWCP also indicated that he must also report any retirement income, disability income, or 

compensation benefits from any federal agency, noting that a recipient of compensation benefits 

under FECA was not permitted to receive benefits under certain other federal programs, including 

the Civil Service retirement program. It continued that, if appellant was receiving or had filed for 

SSA disability benefits, he should contact his local SSA office about the award. 

On an EN1032 form signed by appellant on September 29, 2015, appellant indicated that 

he began receiving SSA disability benefits in June 2014. He also indicated that he had not received

SSA benefits as a part of a retirement annuity for federal service. On EN1032 forms signed by 

appellant on November 1, 2016 and September 25, 2017, appellant reported that he was receiving 

monthly SSA benefits of $2,054.00 as part of an annuity for federal service. 

OWCP forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits 

calculation form to SSA on October 17, 2017. SSA completed the form on October 24, 2017. It 

notified OWCP that appellant had received SSA age-based benefits from September 2014 through 

December 2017. SSA indicated that, beginning in September 2014, appellant’s SSA rate with 

FERS was $2,123.30 and without FERS was $571.60. Beginning in December 2014, the SSA rate 

with FERS was $2,159.30 and without FERS was $581.30. Beginning in December 2015, the 

SSA rate with FERS was $2,159.30 and without FERS was $581.30. Beginning in 

December 2016, the SSA rate with FERS was $2,165.70 and without FERS was $583.00, and 

beginning in December 2017, the SSA rate with FERS was $2,209.00 and without FERS was 

$594.60. 

OWCP calculated appellant’s FERS offset, indicating that, for the period September 1 to 

November 30, 2014, appellant’s monthly offset was $1,551.70 ($2,123.30 - $571.60) or $1,432.34 

every 28 days, yielding a 91-day overpayment of $4,655.10. For the period December 1, 2014 to 

November 30, 2016, the monthly offset was $1,578.00 ($2,159.30 - $581.30) or $1,456.62 every 

28 days, yielding a 731-day overpayment of $38,028.06. For the period December 1, 2016 to 

November 30, 2017, the monthly offset was $1,582.70 ($2,165.70 - $583.00) or $1,460.95 every 

28 days, yielding a 365-day overpayment of $19,044.58, and for the period December 1, 2017 to

January 6, 2018, the monthly offset was $1,614.40 ($2,209.00 - $594.60) or $1,490.22 every 28 

days, yielding a 37-day overpayment of $1,969.21. The overpayment amount for the period 

September 1, 2014 to January 6, 2018 totaled $63,696.95. 

In correspondence dated January 23, 2018, OWCP notified appellant that, based on 

information provided by SSA regarding the amount of his age-based SSA benefit attributable to 

federal service, his FECA benefits had been adjusted effective January 7, 2018. 
3

On January 23, 2018 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $63,696.96 had been created. It explained that the overpayment 

occurred because a portion of appellant’s SSA benefits, for the period September 1, 2014 to 

January 6, 2018, was based on credits earned while working in the Federal Government, and that 

this portion of his SSA benefit was a prohibited dual benefit. OWCP found him at fault in the 

creation of the overpayment because he accepted a payment that he knew or reasonably should 

have known was incorrect. It provided appellant with an overpayment action request and an 

overpayment recovery questionnaire (Form OWCP-20) and afforded him 30 days to respond. 

On an overpayment action request signed on February 10, 2018, appellant disagreed with 

the fault finding and requested that OWCP make a decision based on the written evidence. In an 

attached statement, he indicated that he had never received correspondence from OWCP regarding 

a potential overpayment issue. Appellant maintained that he was unaware of an overpayment and 

was not at fault. He submitted an overpayment recovery questionnaire which listed income of 

$1,687.58 including monthly SSA income of $843.33, other monthly income of $842.93, and 

$1.32 monthly from a money market account, and expenses totaling $3,090.01. Expenses included 

gifts to grandchildren and appellant’s church. Appellant attached a breakdown of his monthly 

expenses for January and February 2018 and noted an additional asset of a 401(k) retirement plan

totaling $19,819.96. He also listed additional assets including a savings account balance of 

$26,084.10. Appellant included an August 2, 2013 letter from SSA which related that, beginning 

September 2013, it would not reduce his benefit because of workers’ compensation and public 

disability payments, and that it did not reduce benefits for months when the disabled worker is age 

65 or over.2 

By decision dated March 6, 2018, OWCP finalized the preliminary overpayment 

determination, finding an overpayment of compensation in the amount of $63,696.96. It explained 

that the overpayment occurred because a portion of appellant’s SSA benefits from September 1, 

2014 through January 6, 2018 was based on credits earned while working in the Federal 

Government and that this portion of his SSA benefit was a prohibited dual benefit. OWCP noted 

that, based on the July 11, 2012 letter and EN1032 forms, he had been reasonably notified of the 

prohibited dual entitlement yet continued to accept SSA benefits as well as FECA benefits without 

FERS offset deduction. It found appellant with fault in the creation of the overpayment. OWCP 

noted that his monthly SSA benefit was $2,209.00 plus $921.05 in FECA compensation, for total 

monthly compensation of $3,130.05, and that only necessary living expenses were to be considered 

and not such expenses as for grandchildren, church donations, cellular telephone, internet, and 

cable television. It indicated that appellant submitted no financial information to support his 

reported debts and also noted his assets. OWCP found that his monthly necessary living expenses 

totaled $2,010.12, which was $1,119.93 less than his monthly income, and set recovery at $425.00 

each 28 days from his continuing compensation. 

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 

 

2 Appellant was born in September 1948. 
4

performance of duty.3 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.4 

Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount 

of compensation by the amount of any age-based SSA benefits that are attributable to federal 

service of the employee.5 FECA Bulletin No. 97-09 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.6 

Section 404.409 of SSA regulations provides that for individuals born from 1943 to 1954, 

full retirement age is 66 years.7 

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly found that appellant received an overpayment of 

compensation in the amount of $63,696.96. 

The record supports that appellant received FECA wage-loss compensation beginning in 

2012 and that he received SSA retirement benefits beginning in September 2014.8 The portion of 

the SSA benefits appellant earned as a federal employee was part of his FERS retirement package, 

and the receipt of benefits under FECA and federal retirement benefits concurrently is a prohibited 

dual benefit.9 

SSA notified OWCP of the applicable SSA compensation rates for appellant and dates of 

monthly SSA compensation beginning in September 2014. This included rates with and without 

FERS offset. 

Appellant’s FECA compensation was not offset by his SSA retirement benefits until 

January 7, 2018. Based on the rates provided by SSA, by decision dated March 6, 2018, OWCP 

calculated a prohibited dual benefit that he received from September 1, 2014 through 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

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

7 20 C.F.R. § 404.409.

8 The record indicates that appellant turned 66 in September 2014. 

9 Supra note 6.
5

January 6, 2018.

10 The record includes an overpayment worksheet explaining the overpayment 

calculation which has a minor addition error of one cent.11 

The Board has reviewed OWCP’s calculations of the dual benefit appellant received for 

the period September 1, 2014 through January 6, 2018 and notes that OWCP’s calculation contains 

a minor addition error. The Board concludes that he received a prohibited dual benefit totaling 

$63,696.95 for this period, thus creating an overpayment of compensation in that amount.12

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.”

13

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; (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 

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

individual).”

14

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.15

 

10 Supra note 7.

11 OWCP found an overpayment of compensation in the amount of $63,696.96. Adding the individual overpayment 

amounts for each year of compensation yields an overpayment totaling $63,696.95. 

12 See I.H., Docket No. 15-1578 (issued November 19, 2015).

13 5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017).

14 20 C.F.R. § 10.433(a); see C.Y., Docket No. 18-0263 (issued September 14, 2018); see also 20 C.F.R. § 10.430.

15 Id. at § 10.433(b); C.Y., id.
6

ANALYSIS -- ISSUE 2

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

of the overpayment for the period September 1, 2014 through July 31, 2015. 

OWCP based the fault finding, under the third standard described, that appellant accepted 

a payment which he knew or should have known to be incorrect. In EN1032 forms signed by 

appellant on November 12, 2014 and November 17, 2015, he indicated that he was not receiving 

SSA benefits as part of an annuity for federal service. This was not an accurate statement as, by 

SSA records, he was in receipt of SSA retirement benefits effective November 1, 2014. EN1032 

forms provide:

“PART D -- OTHER FEDERAL BENEFITS OR PAYMENTS 

* * * 

2. SSA Retirement Benefits. Report any benefits received from the SSA which you 

receive as part of an annuity under the FERS. DO NOT report any benefits received 

from the SSA on account of employment in the private sector. 

a. Do you receive benefits from the SSA as part of an annuity for federal service? 

Yes or No: ____”

The Board finds that appellant was aware that he received SSA and FECA benefits 

simultaneously. Appellant inaccurately reported that he was not receiving SSA benefits as part of 

a retirement annuity for federal service on EN1032 forms he signed on November 11, 2014 and 

November 17, 2015. Based on the clear language of the forms which he knowingly signed, he

failed to provide information he knew or should have known to be material and accepted payment 

he knew was incorrect. The Board thus finds that appellant was at fault in the creation of an 

overpayment of compensation for the period September 1, 2014 through July 31, 2015.16

The Board, however, finds appellant without fault for the period beginning August 1, 2015. 

On EN1032 forms he signed on November 1, 2016 and September 25, 2017, appellant reported 

that he was receiving SSA benefits as part of an annuity for federal service. Instructions for 

completing an EN1032 form indicate that each statement covers the 15 months prior to the date 

the form is completed and signed. Thus, appellant’s signature on November 1, 2016 covered the 

prior 15 months, back to August 1, 2015. The record does not contain an EN1032 form signed 

after September 25, 2017.

As noted, to determine if 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 

 

16 V.E., Docket No. 15-0340 (issued April 1, 2015).

17 20 C.F.R. § 10.433(b); C.Y., supra note 14.
7

In this case, the language of OWCP’s July 11, 2012 letter did not clearly instruct that 

OWCP had to deduct from appellant’s FECA compensation at least part of any SSA benefits to 

which he would be entitled based on age. Moreover, beginning with the EN1032 form appellant

signed on November 1, 2016, he reported that he was receiving SSA retirement benefits as part of 

an annuity for federal service. Therefore, based on the circumstances described above, he was not 

at fault for the period beginning August 1, 2015.

As appellant was not at fault for the period August 1, 2015 through January 6, 2018, the 

case will be remanded to OWCP to consider waiver of recovery of the overpayment for this 

period.18

Because the issue of waiver of recovery for the period August 1, 2015 to January 6, 2018 

is not in posture for decision at the time, it is premature to address recovery of the overpayment.

CONCLUSION

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

$63,696.95 for the period September 1, 2014 through January 6, 2018. The Board further finds 

that he was at fault for the period September 1, 2014 through July 31, 2015 and, thus, would not 

be entitled to waiver of recovery for this period. For the period August 1, 2015 through January 6, 

2018, the Board finds that appellant was not at fault, and the case will be remanded to OWCP to 

consider waiver of recovery of the overpayment covering this period and to then address recovery 

of the overpayment. 

 

18 See E.M., Docket No. 17-1987 (issued July 25, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the March 6, 2018 decision of the Office of Workers’

Compensation Programs is affirmed in part as modified and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: January 29, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board