United States Department of Labor

Employees’ Compensation Appeals Board

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L.K., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Mineola, NY, Employer

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Docket No. 20-0091

Issued: December 3, 2020

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

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 October 16, 2019 appellant, through counsel, filed a timely appeal from a 

September 24, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

The Clerk of the Appellate Boards assigned Docket No. 20-0091.

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

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

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 an 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 benefits, 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 FERS. On the 

reverse side of appellant’s traumatic injury claim (Form CA-1), the employing establishment 

reported appellant’s retirement coverage as “Federal Insurance Contributions Act (FICA) & 

CSRS.” As OWCP has not established that appellant received SSA age-related retirement benefits, 

based in part on her federal service, concurrently with FECA disability compensation from OWCP, 

without a proper offset, it has not established that she received an overpayment of compensation 

 

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

in the amount of $64,266.59 for the period December 1, 2014 through August 17, 2019. The 

Board therefore finds that the September 24, 2019 decision must be reversed.

IT IS HEREBY ORDERED THAT the September 24, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: December 3, 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