United States Department of Labor

Employees’ Compensation Appeals Board

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J.G., Appellant

and

DEPARTMENT OF THE ARMY, McALESTER 

ARMY AMMUNITION PLANT, McAlester, OK, 

Employer

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Docket No. 18-1794

Issued: March 25, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 24, 2018 appellant filed a timely appeal from an August 27, 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.2

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $4,893.50 as he was in receipt of dual benefits for 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

the period January 7 through March 3, 2018; and (2) whether OWCP properly found appellant at 

fault in the creation of the overpayment, thereby precluding waiver of recovery of the 

overpayment.

FACTUAL HISTORY

On December 28, 2004 appellant, then a 35-year-old motor vehicle operator, filed a 

traumatic injury claim (Form CA-1) alleging that on December 27, 2004 he injured his neck, head, 

and left leg while in the performance of his federal employment duties. He did not stop work. By 

decision dated January 27, 2005, OWCP accepted appellant’s claim for cervical and left thigh 

strain and mild concussion.

Appellant stopped work on February 21, 2005 and underwent authorized left-sided lumbar 

partial hemilaminotomy and microdiscectomy at L3-4 on March 30, 2005. Beginning 

February 21, 2005, OWCP paid him compensation for temporary total disability on the periodic 

rolls. Appellant initially returned to full-time, light-duty work on May 3, 2005 and subsequently 

returned to full-time, full-duty work on May 31, 2005.

By decision dated June 3, 2011, OWCP accepted that appellant sustained a recurrence of 

disability commencing May 23, 2011, causally related to his accepted December 27, 2004 

employment injuries. It paid him compensation for temporary total disability on the supplemental 

rolls, commencing June 6, 2011.3

On September 13, 2011 appellant underwent authorized repeat left-sided lumbar 

hemilaminotomy at L3-4 and discectomy freely ruptured fragment downstream at left L3-4. He 

also underwent bilateral decompressive hemilaminotomy at L4-5 with medial facetectomies and 

foraminotomies for L5 nerve roots. Appellant returned to part-time, light-duty work on 

September 26, 2011 and continued to receive disability compensation on the supplemental rolls. 

He later returned to full-time, light-duty work on November 1, 2011.

By decision dated June 25, 2013, OWCP expanded the acceptance of appellant’s claim to 

include displacement of the lumbar intervertebral disc without myelopathy and atony of the 

bladder. It authorized L3-4 and L4-5 decompression with pedicle screw fixation and fusion 

performed on July 24, 2013. OWCP paid appellant temporary disability compensation on the 

supplemental rolls commencing June 19, 2013.

Appellant returned to full-time modified work on September 30, 2013. He stopped work 

again on October 15, 2015 and OWCP paid compensation for temporary total disability for the 

period October 15 through December 12, 2015 on the periodic rolls. Appellant returned to parttime, light-duty work on January 26, 2016 and received disability compensation benefits on the 

supplemental rolls. He stopped work on February 4, 2016 due to the employing establishment’s 

withdrawal of light-duty work and has not returned to work. OWCP paid appellant compensation 

for temporary total disability on the periodic rolls commencing March 6, 2016.

 

3 The record indicates that appellant used sick leave from May 23 through June 5, 2011.
3

Appellant retired from the employing establishment, effective October 4, 2016.

By letter dated June 6, 2017, OWCP referred appellant, together with a statement of 

accepted facts, the medical record, and a set of questions, to Dr. Sami R. Framjee, a Board-certified 

orthopedic surgeon, for a second opinion to determine whether appellant continued to have

residuals from his accepted December 27, 2004 employment injuries and to determine his current 

work capacity. In a medical report dated July 18, 2017, Dr. Framjee diagnosed status post L3-4 

discectomy two times and status post posterior spinal fusion and transpedicular fixation at L3-4 

and L4-5. He found no clinical evidence of any injury to the cervical spine secondary to appellant’s

2004 work-related injury. In a work capacity evaluation (Form OWCP-5c) also dated July 18, 

2017, Dr. Framjee indicated that appellant could not perform his usual job, but he could work eight 

hours a day with certain physical work restrictions.

On November 30, 2017 the employing establishment offered appellant a full-time motor 

vehicle dispatcher position based on Dr. Framjee’s physical work restrictions. On December 5, 

2017 appellant informed OWCP that he disagreed with Dr. Framjee’s findings and indicated that 

he wished to elect compensation benefits from the Office of Personnel Management (OPM).

On December 6, 2017 appellant completed a Form CA-1105, electing OPM retirement 

benefits, effective January 7, 2018.

In a letter dated March 12, 2018, OWCP advised OPM that appellant had elected OPM 

benefits in lieu of compensation benefits under FECA. It requested that OPM commence monthly 

annual benefits, effective January 7, 2018 and that it reimburse OWCP $4,893.50 for FECA 

benefits it had paid him during the period January 7 to March 3, 2018.

By letter dated June 7, 2018, OWCP informed appellant of its preliminary determination 

that an overpayment of compensation in the amount of $4,893.50 had been created for the period 

January 7 through March 3, 2018. It explained that the overpayment occurred because he received 

both FECA benefits and OPM retirement benefits during this period. OWCP found appellant at 

fault in the creation of the overpayment because he had accepted a payment he knew or should 

have reasonably known was incorrect. It advised him that he could submit evidence challenging 

the fact, amount, or fault finding and request waiver of recovery of the overpayment. Additionally, 

OWCP informed appellant that, within 30 days, he could request a telephone conference, a final 

decision based on the written evidence, or a prerecoupment hearing. It requested that he complete 

an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting 

financial documents.

In an overpayment action request signed June 18, 2018, appellant requested a telephone 

conference on the issue of fault in the creation of the overpayment with OWCP’s Branch of 

Hearings and Review. He contended that he did not start his monthly OPM annuity payments until 

April 2018. Appellant noted that he was still waiting for his social security check to be 

straightened out. He submitted a completed Form OWCP-20 also dated June 18, 2018. Appellant 

reported monthly income of $559.00, monthly expenses of $3,400.00, and other funds of 

$2,350.00. He submitted supporting financial documents. Appellant asserted that he was not at 

fault in the creation of the overpayment because he was told by the employing establishment that 

it had a job for him and he was waiting to see if he was going to be on workers’ compensation or 
4

disability, or return to work. He claimed that he tried to contact OWCP on numerous occasions, 

but his calls were not returned. Appellant also claimed that he never received a payment from 

OPM.

OWCP, by letter dated July 26, 2018, informed appellant that it had unsuccessfully 

attempted to return his July 24, 2018 telephone call. It was also unable to return his July 31, 2018 

telephone call.

By decision dated August 27, 2018, OWCP finalized its preliminary overpayment 

determination that appellant received an overpayment of compensation in the amount of $4,893.50 

because he concurrently received FECA disability benefits and OPM retirement benefits for the 

period January 7 through March 3, 2018, and that he was at fault in the creation of the 

overpayment.

LEGAL PRECEDENT -- ISSUE 1

Section 8102 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 

performance of duty.4 Section 8116(a) provides that, while an employee is receiving workers’

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the Armed Forces, including benefits administered by the Department of Veterans 

Affairs, unless such benefits are payable for the same injury or the same death being compensated 

for under FECA.5 

Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may 

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity.6 

The beneficiary must elect the benefit that he or she wishes to receive.7 OWCP procedures also 

explain that the employee must make an election between FECA benefits and OPM benefits. The 

employee has the right to elect the monetary benefit which is the more advantageous.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP has not established that appellant received an overpayment of 

compensation in the amount of $4,893.50.

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116(a).

6 20 C.F.R. § 10.421(a).

7

Id.

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also 

R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued 

March 30, 1994). 
5

OWCP based its overpayment determination on its finding that appellant had received 

prohibited dual OPM and FECA benefits for the period January 7 through March 3, 2018. While 

the record reflects that appellant received FECA benefits for this period, it has not established that 

he also received OPM benefits during this entire period.9 

Appellant elected OPM retirement benefits, effective January 7, 2018. On March 12, 2018

OWCP requested that OPM commence retirement benefit payments and that OPM reimburse any 

FECA benefits paid to him after January 7, 2018. However, there is no evidence of record which 

establishes, as a matter of fact, that appellant actually received OPM benefits, the periods during 

which he received such benefits, or the amount of benefits he received following his election.

10

 

He contended that he did not start his monthly annuity payments until April 2018 and that he never

received any compensation from OPM. The record is also silent as to whether OPM reimbursed 

OWCP for FECA benefits paid to appellant during the period in question.

The Board thus finds that OWCP improperly determined that appellant received an 

overpayment of compensation during the period January 7 through March 3, 2018.11

CONCLUSION

The Board finds that OWCP has not established that appellant received an overpayment 

of compensation in the amount of $4,893.50.12

 

9 E.R., Docket No. 18-0084 (issued July 27, 2018); R.R., Docket No. 18-0032 (issued May 3, 2018).

10 Id. The election form signed by appellant on December 6, 2017 is insufficient to show that he actually began 

receiving OPM benefits at any time. 

11 Id.

12 In light of the Board’s finding in Issue 1, Issue 2 is rendered moot.
6

ORDER

IT IS HEREBY ORDERED THAT the August 27, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: March 25, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board