United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.C., Appellant

and

DEPARTMENT OF AGRICULTURE, 

AGRICULTURAL MARKETING SERVICE, 

Manteca, CA, Employer

__________________________________________

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Docket No. 19-1838

Issued: May 1, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 3, 2019 appellant filed a timely appeal from a July 30, 2019 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $52,343.04, for which she was not at fault, as she 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the July 30, 2019 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 Social Security Administration (SSA) age-related retirement benefits while 

receiving FECA wage-loss compensation benefits for the period January 1, 2006 through 

March 30, 2019; (2) whether OWCP properly denied waiver of recovery of the overpayment; and 

(3) whether OWCP properly required recovery of the overpayment by deducting $218.80 from 

appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On January 5, 1993 appellant, then a 49-year-old commodity grader, filed a traumatic 

injury claim (Form CA-1) alleging that on January 4, 1993 she injured her neck, shoulders, and 

right arm when lifting cases of eggs while in the performance of duty. OWCP accepted the claim 

for cervical strain and bilateral shoulder strain. Appellant stopped work on January 5, 1993. She 

did not return to work and resigned from employment on January 31, 2006. The record reflects 

that OWCP paid appellant wage-loss compensation on the periodic rolls based upon her loss of 

wage-earning capacity as of June 16, 2002. By decision dated December 4, 2007, it granted her a 

schedule award which ran from November 25, 2007 through February 10, 2010.

3 OWCP then 

resumed paying wage-loss compensation on the periodic rolls as of March 14, 2010.

On January 28, 2019 OWCP provided SSA with a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form. On March 7, 2019 SSA submitted the completed 

form, which showed SSA benefit rates with a FERS offset and without a FERS offset from January

2006 through December 2018. Beginning January 2006, the SSA rate with FERS was $934.00 

and without FERS was $648.10. Beginning December 2006, the SSA rate with FERS was $964.80 

and without FERS was $669.50. Beginning December 2007, the SSA rate with FERS was $987.00 

and without FERS was $684.80. Beginning December 2008 through November 2011, the SSA 

rate with FERS was $1,044.20 and without FERS was $724.50. Beginning December 2011, the 

SSA rate with FERS was $1,081.70 and without FERS was $750.60. Beginning December 2012, 

the SSA rate with FERS was $1,100.00 and without FERS was $763.30. Beginning December

2013, the SSA rate with FERS was $1,116.50 and without FERS was $774.80. Beginning 

December 2014 through November 2016, the SSA rate with FERS was $1,135.50 and without 

FERS was $787.90. Beginning December 2016, the SSA rate with FERS was $1,138.80 and 

without FERS was $790.20. Beginning December 2017, the SSA rate with FERS was $1,161.60 

and without FERS was $806.00. Beginning December 2018, the SSA rate with FERS was 

$1,194.00 and without FERS was $828.50.

A FERS offset calculation worksheet dated March 28, 2019 noted each period of 

overpayment and provided calculations, which resulted in a total overpayment of $52,343.04 

during the period January 1, 2006 through March 30, 2019. 

By letter dated April 1, 2019, OWCP informed appellant that it would begin deducting the 

portion of SSA benefits attributable to her federal service from her periodic disability 

compensation beginning March 31, 2019.

 

3 The December 4, 2007 schedule award was for 20 percent permanent impairment of the right upper extremity and 

17 percent permanent impairment of the left upper extremity. 
3

In a preliminary notice dated April 3, 2019, OWCP informed appellant that she had 

received an overpayment of compensation in the amount of $52,343.04 because the SSA/FERS 

offset was not applied to FECA benefits for the period January 1, 2006 through March 30, 2019. 

It determined that she was without fault in the creation of the overpayment, because she was not 

aware, nor could she reasonably have been expected to know, that it had paid her compensation 

incorrectly. OWCP requested that appellant submit a completed overpayment recovery 

questionnaire (Form OWCP-20) to determine a fair repayment method, and advised her that she 

could request a waiver of recovery of the overpayment. It further requested that she provide 

supporting financial documentation, including copies of income tax returns, bank account 

statements, bills, pay slips, and any other records to support income and expenses. OWCP advised 

appellant that it would deny waiver if she failed to furnish the requested financial information 

within 30 days. It further notified her 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. 

Appellant completed the Form OWCP-20 overpayment recovery questionnaire on 

April 16, 2019, and submitted supporting financial documentation. She requested that OWCP 

make a decision regarding possible waiver of recovery of the overpayment based on the written 

evidence.

By decision dated July 30, 2019, OWCP determined that appellant had received an 

overpayment of compensation in the amount of $52,343.04 because the SSA/FERS offset was not 

applied to payments for the period January 1, 2006 through March 30, 2019. It further found that 

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

overpayment. OWCP explained that, while appellant had provided some financial documentation 

for her expenses, she did not provide financial documentation for others, and that the claimed

expenses not supported by financial documentation would not be considered in calculation of her 

monthly expenses for the purpose of waiver. It noted that as the period necessary to repay the debt 

would exceed her life expectancy, the principal would be compromised by $25,743.04 due to 

hardship with regard to her life expectancy, while an additional $5,638.96 would be compromised, 

for a total of $31,382.00 compromised. The remaining debt amount to be repaid was $26,600.00, 

which would be repaid by deducting $218.80 from appellant’s continuing compensation every 28 

days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.4 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.5

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 

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.
4

employee.6 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.7

ANALYSIS -- ISSUE 1

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

By decision dated July 30, 2019, OWCP determined that appellant had received an 

overpayment of compensation in the amount of $52,343.04 because the SSA/FERS offset was not 

applied to payments for the period January 1, 2006 through March 30, 2019. However, by 

decision dated December 4, 2007, OWCP had granted appellant a schedule award which ran from 

November 25, 2007 through February 10, 2010. Furthermore, the record indicates that OWCP did 

not resume paying wage-loss compensation on the periodic rolls until March 14, 2010. 

The Board has held in overpayment cases that it is essential that OWCP provide the 

recipient of compensation with a clear statement showing how the overpayment was calculated.

8

With respect to the fact and amount of the overpayment, the Board finds that OWCP has not 

provided adequate findings of fact which would allow appellant to understand the precise defect 

of her claim and the kind of evidence which would tend to overcome it.9 OWCP has not adequately 

explained how the fact and amount of the overpayment was determined in light of appellant’s 

receipt of schedule award compensation for a portion of the period of the overpayment. Its

regulations provide that retirement benefits paid by the Office of Personnel Management or SSA 

can be paid concurrently with schedule award compensation under FECA without a deduction 

from FECA benefits.10 The record also reflects that at the expiration of appellant’s schedule award, 

OWCP did not resume paying appellant wage-loss compensation on the periodic rolls until 

March 14, 2010. The Board therefore finds that the July 30, 2019 decision must be set aside and 

the case remanded for further consideration followed by a de novo decision.11

CONCLUSION

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

 

6 20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

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

8 See Teresa A. Ripley, 56 ECAB 528 (2005).

9 20 C.F.R. § 10.126; H.H., Docket No. 18-0356 (issued October 24, 2018); P.G., Docket No. 14-0430 (issued 

August 1, 2014).

10 Supra note 7; see also J.M., Docket No. 18-1505 (issued June 21, 2019); K.H., Docket No. 18-0171 (issued 

August 2, 2018); A.S., Docket No. 17-1459 (issued December 22, 2017).

11 As the first issue regarding fact and amount of overpayment is set aside, issues 2 and 3 are moot.
5

ORDER

IT IS HEREBY ORDERED THAT the July 30, 2019 decision of the Office of Workers’

Compensation Programs is set aside and this case is remanded for further proceedings consistent 

with this decision. 

Issued: May 1, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board