United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Madison, WI, Employer

__________________________________________

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Docket No. 19-0824

Issued: October 4, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 6, 2019 appellant filed a timely appeal from an October 5, 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 appellant received an overpayment of compensation in the 

amount of $12,887.77 because he concurrently received Social Security Administration (SSA) 

age-based benefits while also receiving FECA benefits for the period February 1, 2008 through 

 

1

5 U.S.C. § 8101 et seq. 

2 The Board notes that following the October 5, 2018 decision, OWCP received additional evidence, and 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

March 31, 2018; (2) whether OWCP properly found appellant at fault in the creation of the 

overpayment thereby precluding waiver of recovery of the overpayment; and (3) whether OWCP 

properly required recovery of the overpayment by deducting $300.00 every 28 days from 

appellant’s continuing compensation.

FACTUAL HISTORY

On July 19, 2006 appellant, then a 64-year-old city letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he tripped while delivering mail and injured his right elbow, right 

shoulder, and both knees the previous day while in the performance of duty. OWCP accepted the 

claim for superficial injury of the right elbow, forearm, wrist, without infection; contusion of the 

left knee, left; and complete right rotator cuff rupture. It initially paid appellant intermittent wageloss compensation. On November 7, 2008 OWCP accepted that he sustained a recurrence of 

disability as of August 10, 2008. Appellant thereafter was paid wage-loss compensation on the 

periodic compensation rolls by OWCP and has not returned to work.3

On EN1032 forms dated December 2, 2009 to January 8, 2018, each of which was signed 

by appellant, he indicated that he was not receiving SSA benefits as part of an annuity for federal 

service. 

On March 21, 2018 SSA forwarded a Federal Employees Retirement System (FERS)/SSA 

dual benefits calculation form to OWCP. The form indicated that beginning in February 2008 

appellant’s SSA rate with FERS was $1,413.10 and without FERS $1,318.00; beginning in

December 2008, his rate with FERS was $1,495.00 and without FERS $1,394.50; beginning 

January and December 2009, and January 2010, his SSA rate with FERS was $1,504.20 and 

without FERS $1,403.10; beginning in December 2011, his SSA rate with FERS was $1,558.30 

and without FERS $1,453.50; beginning in December 2012, his SSA rate with FERS was 

$1,584.80 and without FERS $1,478.20; beginning in December 2013, his SSA rate with FERS 

was $1,608.60 and without FERS $1,500.30; beginning in December 2014 and December 2015, 

his SSA rate with FERS was $1,635.90 and without FERS $1,525.70; beginning in 

December 2016, his SSA rate with FERS was $1,640.70 and without FERS $1,530.20; and 

beginning in December 2017, his SSA rate with FERS was $1,673.60 and without FERS 

$1,560.80. 

On April 5, 2018 OWCP issued a preliminary determination, finding that an overpayment 

of compensation in the amount of $12,887.77 had been created. It explained that the overpayment 

occurred because a portion of appellant’s SSA age-based benefits that he received for the period 

February 1, 2008 through March 31, 2018 were 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 and provided an overpayment action request 

form and an overpayment recovery questionnaire (OWCP-20).4 It explained its calculation of the 

 

3 Appellant continues to receive FECA wage-loss compensation on the periodic compensation rolls to date.

4 OWCP explained that appellant was to attach documents to the overpayment recovery questionnaire including 

income tax returns, bank account statements, bills and cancelled checks, pay slips, and any o ther records which 

supported income and expenses listed.
3

overpayment, informed appellant of the actions he could take, and allotted 30 days for him to 

respond. OWCP reduced his wage-loss compensation effective April 1, 2018 to reflect an 

adjustment for SSA/FERS offset.

On May 1, 2018 appellant submitted an overpayment action request in which he requested 

a prerecoupment hearing with OWCP’s Branch of Hearings and Review. He indicated that he 

disagreed that the overpayment occurred, disagreed with the amount of the overpayment, disagreed 

that he was at fault, and requested waiver of recovery of the overpayment.

In a letter dated July 16, 2018, an OWCP hearing representative notified appellant that in 

order for waiver of recovery of an overpayment to be considered or to determine a reasonable 

method of collection of the overpayment, he must complete and submit an OWCP-20, which was 

enclosed. She also noted that he should furnish specific financial documentation. The hearing 

representative allotted 30 days for him to submit this information.

On July 30, 2018 appellant submitted a completed OWCP-20. This indicated that he had 

$5,464.00 in household monthly income and $4,144.00 in monthly household expenses. Appellant

wrote that OWCP had not informed him regarding the FERS offset prior to the preliminary 

overpayment determination and maintained that, therefore, he was not at fault. He attached 

financial information including FECA benefit statements, car and property insurance invoices, 

medical prescription information and physician bills, credit card bills, utility bills, bank statements, 

and correspondence from SSA regarding his wife’s SSA benefits.

At the hearing, held telephonically on August 28, 2018, appellant was represented by a 

union representative. He testified that since he had not officially retired from the employing 

establishment, he did not think the EN1032 question about receiving SSA based on a FERS annuity 

applied to him. Appellant indicated that he had not applied for SSA benefits until he reached 70 

years of age. He requested a new OWCP-20 so that he could add his wife’s expenses. The record 

was left open 30 days. 

On September 21, 2018 appellant submitted an amended OWCP-20. He listed monthly 

income of $5,465.00.

5

 On attached handwritten sheets he itemized monthly expenses, listing a 

total of $5,134.00. In an attached statement, appellant reiterated that no one had explained the 

FERS offset, again relating that he had not retired. He maintained that his FECA payment had 

nothing to do with his SSA benefit and implied that SSA had erred by paying him too much. 

By decision dated October 5, 2018, an OWCP hearing representative finalized the 

overpayment determination. She found that appellant received an overpayment of compensation 

in the amount of $12,887.77 because he received a prohibited dual benefit from SSA while he 

concurrently received FECA compensation. The hearing representative referenced FECA Bulletin 

No. 97-09 which provided that FECA benefits had to be adjusted for the FERS portion of SSA 

benefits, noting that the portion of the SSA benefits earned as a federal employee was part of the 

FERS retirement package, and the receipt of FECA benefits and federal retirement concurrently

was a prohibited dual benefit. She found appellant at fault because he answered “no” to the 

 

5 This included $2,879.00 in FECA benefits, $1,534.00 in SSA benefits for appellant and $810.00 for SSA benefits 

for his wife, $238.00 in military retirement, and $4.00 in dividends. 
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question, “do you receive benefits from the SSA as part of an annuity for [f]ederal service” on his 

signed EN1032 forms. As such, appellant was not entitled to waiver of recovery of the 

overpayment. The hearing representative noted that his reported monthly income of $5,465.00 

exceeded his claimed monthly expenses of $5,124.00 by $341.00. She disallowed claimed 

expenses for trips to visit family and friends, cable television, storage locker rental, donations, his 

wife’s manicure, and cigarettes, and set repayment at $300.00 per 28-day compensation period. 

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 

performance of duty.6 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.7 

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

of compensation by the amount of any SSA benefits that are attributable to federal service of the 

employee.8 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.9 

Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins 

at 62 years.10 Section 404.409 of SSA regulations provides that for individuals born in 1942, full 

retirement age is 65 years 10 months.

11

 

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $12,887.77 because he concurrently received SSA age-based 

benefits while also receiving FECA benefits for the period February 1, 2008 through March 31, 

2018

In its October 5, 2018 decision, OWCP’s hearing representative found that an overpayment 

of compensation was created for the period February 1, 2008 through March 31, 2018. The 

overpayment was based on the evidence received from SSA with respect to age-based benefits 

paid to appellant. Although appellant maintains on appeal that, because he was not officially 

 

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see J.T., Docket No. 18-1791 (issued May 17, 2019).

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

10 20 C.F.R. § 404.310.

11 Id. at § 404.409.
5

retired from the employing establishment, he was entitled to full SSA benefits without offset, a

claimant cannot receive both compensation for wage loss and SSA retirement benefits attributable 

to federal service for the same period.12 The information provided by SSA indicated that he

received age-based SSA benefits that were attributable to federal service during the period 

February 1, 2008 through March 31, 2018.

To determine the amount of the overpayment, the portion of the SSA benefits that were 

attributable to federal service must be calculated. OWCP received documentation from SSA with 

respect to the specific amount of age-based SSA retirement benefits that were attributable to 

federal service. The SSA provided the SSA rate with FERS, and without FERS for specific periods 

commencing February 1, 2008 through March 31, 2018. OWCP provided its calculations for each 

relevant period based on the SSA worksheet. No contrary evidence was provided.

The Board has reviewed OWCP’s calculation of benefits appellant received for the period 

February 1, 2008 through March 31, 2018 and finds that an overpayment of compensation in the 

amount of $12,887.77 was created.13 

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.”

14

On the issue of fault, section 10.433(a) of OWCP’s regulations provides that an individua l 

is with fault in the creation of an overpayment who: (1) made an incorrect statement as to a 

material fact which the individual knew or should have known to be incorrect; (2) failed to furnish 

information which the individual knew or should have known to be material; or (3) with respect 

to the overpaid individual only, accepted a payment which the individual knew or should have 

been expected to know was incorrect.15 With respect to whether an individual is without fault, 

section 10.433(b) provides that whether or not OWCP determines that 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.16

 

12 See J.T., supra note 7 and 8.

13 See L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

14 5 U.S.C. § 8129; see A.S. Docket No. 17-0606 (issued December 21, 2017).

15 20 C.F.R. § 10.433(a); see C.L., Docket No. 19-0242 (issued August5, 2019).

16 Id. at § 10.433(b); C.L., id.
6

OWCP’s procedures also provide that if:

“The claimant receives benefits from the Social Security Administration (SSA) as 

part of an annuity under the Federal Employees’ Retirement System concurrently 

with disability/wage loss compensation. See 5 U.S.C. § 8116(d)(2). In such cases, 

the claimant should be found without fault unless there is evidence on file that the 

claimant was aware that the receipt of full SSA benefits concurrent with 

disability/wage loss compensation was prohibited.”

17

 (Emphasis in the original.)

ANALYSIS -- ISSUE 2

The Board finds that OWCP has not established that appellant was at fault in the creation 

of the overpayment of compensation. OWCP found him at fault because he accepted a payment 

which he knew or should have known was incorrect.

The record as submitted to the Board does not contain evidence that the claimant was aware 

that his receipt of full SSA benefits concurrent with his FECA compensation was a prohibited dual 

benefit. Therefore, pursuant to OWCP’s procedures as set forth at Chapter 6.300.4.g.(4)(a), the 

Board finds that OWCP has not met its burden to establish that appellant accepted payments which 

he knew or should have known were incorrect.18

The record of evidence does not contain a clear notification to appellant that his receipt of 

SSA benefits following his age-related eligibility was resulting in an overpayment of 

compensation due to a prohibited dual benefit. The record only contains a number of EN1032 

forms in which he indicated that he was not in receipt of SSA benefits as part of an annuity for 

federal service.19 It was only in the August 5, 2018 preliminary overpayment determination that 

OWCP included an explanation in which it indicated that a portion of appellant’s SSA benefits 

was due to civilian federal service, known as the FERS component, which referred to the 

retirement system to which he belonged. It was in the April 5, 2018 preliminary determination of 

overpayment that OWCP cited section 10.421(d) of OWCP’s regulations which provides that, 

while a FECA beneficiary could receive SSA benefits, OWCP was required to reduce the amount 

of FECA compensation by the amount of any SSA benefits which were attributable to federal 

service of the employee.20 Appellant received no notification prior to that preliminary 

 

17 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, 

Chapter 6.300.4g(4) (September 2018).

18 Id.

19 The Board also notes that the EN1032 forms submitted by appellant do not cover the entire period of the 

overpayment of compensation. As written on EN1032 forms, they cover the preceding 15 months. Thus, Form 

EN1032 dated December 2, 2009 covered the period September 2, 2008 to December 2, 2009 and did not cover the 

period February 1 to September 2, 2008. Likewise, the last EN1032 dated prior to the final overpayment decision 

dated October 5, 2018 was dated January 8, 2018. It, therefore, did not cover the period of overpayment from 

January 8 to March 31, 2018. 

20 20 C.F.R. § 10.421(d).
7

determination that his FECA benefits would be offset if he was in receipt of SSA age-based 

benefits, based upon his federal service.

21

The Board finds that OWCP has insufficiently explained how appellant’s various EN1032 

forms dating back to 2008 established that he knew or should have known that he was receiving 

FECA compensation benefits without an appropriate offset due to his SSA retirement benefits. 22 

To determine if an individual was at fault in 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.23 Therefore, based on the circumstances described above, OWCP has not met its burden 

of proof to establish that appellant was at fault in the creation of the overpayment for the period 

February 1, 2008 through March 31, 2018.24

As appellant was not at fault in the creation of the overpayment, the case will be remanded 

to OWCP to consider the issue of waiver of recovery of the overpayment. Because the issue of 

waiver of recovery is not in posture for decision, it is premature to address whether OWCP 

properly required recovery of the overpayment by making periodic deductions of $300.00 every 

28 days from his continuing FECA compensation payments.

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $12,887.77 because he concurrently received SSA age-based 

benefits while also receiving FECA benefits for the period February 1, 2008 through 

March 31, 2018. The Board further finds that he was not at fault in the creation of the 

overpayment, and the case will be remanded to OWCP for consideration of waiver of recovery of 

the overpayment.

 

21 The Board notes that appellant reached full retirement age in November 2007.

22 B.M., Docket No. 19-0158 (issued July 11, 2019).

23 Supra note 16.

24 Supra note 22.
8

ORDER

IT IS HEREBY ORDERED THAT the October 5, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part, reversed in part, and the case is remanded 

to OWCP for further proceedings consistent with this decision of the Board.

Issued: October 4, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board