United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.M., Appellant

and

DEPARTMENT OF THE NAVY, PARRIS 

ISLAND MARINE CORPS BASE, 

Parris Island, SC, Employer

__________________________________________

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Docket No. 17-1482

Issued: May 4, 2018

Appearances: Case Submitted on the Record

H. Fred Kuhn, Jr., Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 21, 2017 appellant, through counsel, filed a timely appeal from an April 27, 2017 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of the claim.

 

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

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $11,462.78 for the period October 1, 2015 through March 4, 2017; (2) whether OWCP 

properly found appellant at fault in creating the overpayment and, therefore, the overpayment was 

not subject to waiver of recovery; and (3) whether OWCP properly determined that it would 

recover the overpayment by deducting $200.00 every 28 days from appellant’s continuing 

compensation.

On appeal appellant contends that OWCP created the overpayment as it delayed the 

recalculation of his FECA benefits for 15 months after he reached 62 years of age. He asserts that 

he was not at fault in creation of the overpayment as he did not understand how his FECA payments 

were calculated, and disclosed all relevant information regarding his Social Security 

Administration (SSA) benefits in EN1032 forms. Appellant also argues that recovery of the 

overpayment would be against equity and good conscience as he has no financial assets.

FACTUAL HISTORY

OWCP accepted that on November 2, 2006 appellant, then a 57-year-old presser 

supervisor, unloaded washers and dryers in the performance of duty and sustained a lumbar sprain, 

aggravation of lumbar stenosis from L3 through S1, aggravation of an intervertebral disc disorder 

with myelopathy from L3 through S1, and aggravation of a displaced L4-5 disc without 

myelopathy. He stopped work on December 3, 2006 and did not return. On February 9, 2007 

appellant had an authorized L3 to S1 decompression with L4 to S1 fusion.3 OWCP paid appellant 

compensation for total disability on the periodic rolls commencing January 7, 2007. 

In a Form CA-1049 letter dated February 9, 2007, OWCP notified appellant that he must 

report any retirement income “from any Federal agency,” as a FECA compensationer was not 

permitted to receive benefits under the Civil Service Retirement System (CSRS) or “certain other 

Federal programs.” OWCP also notified appellant that if he received or filed for social security 

disability benefits, he should contact the appropriate social security office about his FECA 

compensation.

Appellant submitted annual affidavits of earnings and employment (Form EN1032) on

October 9, 2007 and October 4, 2008, noting that he had not returned to work and had not received 

any SSA benefits.

On June 11, 2009 OWCP notified appellant that it proposed to reduce his wage-loss 

compensation based on his ability to earn wages in the constructed position of hotel clerk. 

Appellant responded in a July 2, 2009 letter, in which he asserted that his treatment for metastatic 

cancer disabled him from all work. By decision dated July 21, 2009, OWCP reduced his wage-

 

3 OWCP provided vocational rehabilitation services to appellant in 2008. Appellant’s vocational rehabilitation plan 

was put in interrupted status in December 2008 due to a nonoccupational diagnosis. OWCP closed the vocational 

rehabilitation effort on June 22, 2009.
3

loss compensation effective August 2, 2009, based on his ability to earn wages in the constructed 

position of hotel clerk.

Appellant submitted a completed Form EN1032 on October 8, 2009 and October 6, 2010. 

He indicated that he had not received SSA benefits. 

In a July 12, 2011 letter, the SSA noted that appellant may have been entitled to both social 

security disability benefits and FECA compensation benefits. To determine whether his FECA 

benefits required a reduction in his SSA disability benefits, SSA requested that OWCP provide the 

amount of appellant’s FECA benefits every 28 days commencing December 1, 2008. OWCP 

responded on September 7, 2011 with a print-out of FECA wage-loss compensation benefits paid 

beginning November 23, 2008. 

In an October 3, 2011 letter, OWCP notified appellant that 5 U.S.C. § 8116(d)(2) required 

the reduction of continuing compensation benefits if a claimant had begun receiving SSA 

retirement benefits based upon age and federal service. It explained that it had notified appellant 

of this requirement as its records indicated appellant was nearing age 62, the minimum age at 

which an individual would be eligible to receive SSA retirement benefits. OWCP explained that 

a failure to report receipt of SSA retirement benefits to OWCP could result in an overpayment of 

FECA compensation. It also instructed appellant to contact it immediately if he had been approved 

for SSA retirement benefits or had begun to receive them. 

In an October 8, 2011 Form EN1032, appellant advised that he had been assigned a Civil 

Service Annuity (CSA) number, but had not yet received SSA retirement benefits related to his 

federal service.4

In a November 9, 2011 telephone memorandum (Form CA-110), OWCP noted that 

appellant, who had been born on October 24, 1949, had reached 62 years of age. SSA had therefore 

informed appellant that it would transition his SSA benefits from disability retirement to agerelated retirement benefits. Appellant stated that he would submit appropriate documentation to 

OWCP.

On November 9, 2011 OWCP requested that SSA specify the amount of monthly benefits 

paid to appellant commencing November 2, 2006 with and without the Federal Employees 

Retirement System (FERS) offset attributable to his federal service. 

Appellant provided a November 7, 2011 SSA Notice of Award which notified him of his 

entitlement to monthly SSA retirement benefit payments in the amount of $1,001.00 commencing 

in November 2011.

 

4 Appellant signed similar EN1032 forms on October 5, 2012, October 6, 2013 and October 7, 2014. In each form, 

he advised that he had not received “benefits from the SSA as part of an annuity for [f]ederal service,” but had been 

assigned a CSA number.
4

On May 7, 2013 OWCP again requested that SSA specify the amount of any monthly 

benefits paid to appellant commencing October 1, 2011, with and without the FERS offset 

attributable to his federal service. 

In a January 15, 2015 letter, OWCP requested that appellant indicate if he received SSA 

disability retirement benefits, and if so, the date that such benefits commenced. Appellant 

telephoned OWCP on January 29, 2015 and affirmed that he received SSA benefits. He submitted 

a corrected Form EN1032 on January 26, 2015, in which he noted that he received $1,499.00 a 

month in SSA disability benefits.

In a Form EN1032 signed by appellant on October 5, 2015, appellant responded “yes” to 

Part D, Question 2.a., “Do you receive benefits from the SSA as part of an annuity for [f]ederal 

service?” He noted that he received $1,500.00 a month from SSA as an annuity for his federal 

service. 

In a completed Form EN1032 signed by appellant on October 17, 2016, appellant 

responded “yes” to Part D, Question 2.a., “Do you receive benefits from the SSA as part of an 

annuity for [f]ederal service?” He noted that he received $1,499.00 a month from SSA as an 

annuity for his federal service. 

On November 9, 2016 OWCP requested that SSA specify the amount of any monthly 

benefits paid to appellant commencing October 24, 2014 with and without the FERS offset 

attributable to his federal service. 

SSA responded on November 30, 2016 with benefit entitlement amounts for appellant, as 

follows: commencing October 2015, $1,649.20 with FERS and $982.20 without; beginning 

December 2015, $1,649.20 with FERS and $982.20 without; and commencing December 2016, 

$1,654.10 with FERS and $985.10 without. It noted that appellant “was entitled to retirement 

starting October 2015 to present time (subject to SSA/FERS offset).”

In a March 2, 2017 worksheet, OWCP calculated that appellant had been overpaid 

$11,462.78 from October 1, 2015 to March 4, 2017 as it failed to offset FERS retirement benefits 

from ongoing FECA benefits. It determined that from October 1 to November 30, 2015, a period 

of 61 days, appellant received a $1,341.33 overpayment of compensation as the FERS offset of 

$615.69 every 28 days, or $21.988 each day, had not been deducted. OWCP then determined that 

from December 1, 2015 to November 30, 2016, a period of 366 days, appellant received an 

$8,047.98 overpayment of compensation as the FERS offset of $615.69 every 28 days, or $21.988 

each day, had not been deducted. Finally, it calculated that from December 1, 2016 to March 4, 

2017, a period of 94 days, appellant received a $2,073.47 overpayment of compensation, based on 

a FERS offset of $617.63 every 28 days, or $22.058 each day. OWCP totaled the three 

overpayments to equal $11,462.78. 

Commencing March 5, 2017, OWCP adjusted appellant’s compensation to reflect a 

FERS/SSA benefit offset. It noted that his current SSA rate with FERS was $2,000.00 and without 

FERS was $1,170.39, which yielded an offset of $617.13 every 28 days. 

By notice dated March 13, 2017, OWCP advised appellant of its preliminary determination 

that he received an $11,462.78 overpayment of compensation for the period October 1, 2015 
5

through March 4, 2017, as the FERS offset was not deducted from his FECA wage-loss 

compensation. It found that appellant was with fault in creating the overpayment as he was aware 

or reasonably should have been aware that his FECA compensation benefits should have been 

offset by the amount of his SSA benefits for the period at issue. OWCP requested that appellant

provide information regarding his income, assets, and expenses on an enclosed overpayment 

recovery questionnaire (Form OWCP-20). 

Appellant signed a completed Form OWCP-20 on March 26, 2017. He contended that he 

was not at fault in creating the overpayment as he had completed and returned the forms OWCP 

had sent to him. Appellant explained that he first received Supplemental Security Income (SSI)

payments and was “told that it did not affect” his FECA benefits. In 2014, he was transferred to 

SSA retirement benefits, and reported this change on CA-1032 forms. He listed monthly SSA 

benefits of $2,482.00 and monthly SSI benefits of $3,038.00. Appellant indicated that he had no 

dependents. He listed expenses of $3,351.84 for rent or mortgage, $250.00 for food, $150.00 for 

clothing, and $250.00 in miscellaneous expenses. Appellant also noted monthly debt payments 

totaling $505.00. He indicated that he had no funds in bank accounts, cash on hand, or other 

financial holdings. Appellant did not submit any financial documentation in support of the income, 

assets, and expenses he specified in the Form OWCP-20.

By decision dated April 27, 2017, OWCP finalized it preliminary overpayment 

determination and found that appellant received an $11,462.78 overpayment of compensation for 

the period October 1, 2015 through March 4, 2017. It found appellant with fault in creating the 

overpayment as he accepted payments which he knew or reasonably should have known were 

incorrect. OWCP noted that appellant had been sent an October 3, 2011 letter which notified him 

that he was approaching his 62nd birthday, and of the possibility of a prohibited dual benefit if his 

SSA retirement benefits were not offset from his FECA compensation. It found that appellant 

omitted his FECA benefits from the income listed on the Form OWCP-20, and failed to submit 

documentation of his expenses and assets as requested. Appellant’s total monthly income, 

including his FECA compensation payment, was $6,690.39. Subtracting expenses of $4,506.84 

left monthly disposable income of $2,183.55. OWCP therefore found that appellant could repay 

the debt through the deduction of $200.00 from his continuing compensation payments.

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.5 Section 8129(a) of FECA provides, in pertinent part:

“When an overpayment has been made to an individual under this subchapter 

because of an error of fact or law, adjustment shall be made under regulations 

prescribed by the Secretary of Labor by decreasing later payments to which an 

individual is entitled.”

6

 

5 5 U.S.C. § 8102(a).

6

Id. at § 8129(a).
6

Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of 

SSA benefits based on age or death that are attributable to federal service.7 If an employee receives

SSA benefits based on federal service, his or her compensation benefits shall be reduced by the 

amount of SSA benefits attributable to his or her federal service. A FECA beneficiary may not 

receive wage-loss compensation concurrently with a federal retirement or survivor annuity.8

OWCP procedures provide that, while SSA benefits are payable concurrently with FECA 

benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by 

SSA benefits paid on the basis of age and attributable to the employee’s federal service.9 The 

offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as 

follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA 

on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits. 

SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA

will also provide a hypothetical SSA benefit computed without FERS covered earnings. OWCP 

will then deduct the hypothetical benefit from the actual benefit to determine the amount of 

benefits which are attributable to federal service and that amount will be deducted from FECA 

benefits to obtain the amount of the overpayment.

10

ANALYSIS -- ISSUE 1

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

$11,462.78 because he received prohibited dual benefits for the period October 1, 2015 through

March 4, 2017. Appellant received both wage-loss compensation under FECA and benefits under 

the SSA for the same period. As previously noted, the portion of the SSA benefits he received as 

a federal employee as part of his FERS retirement package concurrently with the benefits he 

received under FECA is a prohibited dual benefit.11 OWCP requested and SSA provided 

information regarding appellant’s applicable SSA rates and their effective dates. Based on these 

rates, it determined that the prohibited dual benefits he received from October 1, 2015 through

March 4, 2017 created an overpayment of compensation in the amount of $11,462.78. The record 

includes an overpayment worksheet explaining the overpayment calculation. 

The Board has reviewed OWCP’s calculations of the dual benefits appellant received and 

finds that OWCP properly determined an overpayment of compensation in the amount of 

$11,462.78 for the period October 1, 2015 through March 4, 2017.

 

7 5 U.S.C. § 8116(d). See N.R., Docket No. 12-1853 (issued June 10, 2013).

8 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a). See also P.M., Docket No. 14-1832 (issued January 20, 2015).

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995); Chapter 

2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995); OWCP does not require an election between 

FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See also R.C., 

Docket No. 09-2131 (issued April 2, 2010).

10 J.G., Docket No. 17-0400 (issued January 12, 2018); see L.B., Docket No. 11-2076 (issued August 29, 2012).

11 See L.M., Docket No. 16-1305 (issued November 27, 2017).
7

LEGAL PRECEDENT -- ISSUE 2

Under OWCP regulations, waiver of the recovery of an overpayment may be considered 

only if the individual to whom it was made was not at fault in accepting or creating the 

overpayment.12 The fact that the overpayment was the result of error by OWCP or another 

government employing establishment does not by itself relieve the individual who received the 

overpayment of liability for repayment if the individual also was at fault for receiving the 

overpayment.13

Each recipient of compensation benefits is responsible for taking all reasonable measures 

to ensure that payments he or she received from OWCP are proper. The recipient must show good 

faith and exercise a high degree of care in reporting events that 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 

with respect to 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

With respect to whether an individual is without fault, section 10.433(b) of OWCP 

regulations 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.15

ANALYSIS -- ISSUE 2

The Board finds that appellant was at fault in creating the $11,462.78 overpayment of 

compensation. 

The record reflects that appellant accepted payments covering the period October 1, 2015 

through March 4, 2017 which he knew or should have known to be incorrect.16 He was advised 

by OWCP in letters dated February 9, 2007 and October 3, 2011 that receipt of SSA retirement 

benefits would affect his entitlement to FECA compensation, but he continued to accept FECA 

benefits, without offset, during the period October 1, 2015 through March 4, 2017 in addition to 

his SSA retirement benefits.

 

12 20 C.F.R. § 10.433(a).

13 Id.

14 Id.; see Kenneth E. Rush, 51 ECAB 116 (1999).

15 Id. at § 10.433(b).

16 J.G., supra note 10; see J.C., Docket No. 16-1889 (issued May 17, 2017).
8

Commencing October 9, 2007 on CA-1032 forms through October 7, 2014, appellant was 

asked if he received SSA retirement benefits as part of an annuity under FERS benefits from 

federally-assisted disability or benefit programs as this would affect his benefits from OWCP. He

correctly answered “No.” On the CA-1032 forms signed by appellant on October 5, 2015 and

October 17, 2016, appellant reported correctly that he was in receipt of SSA retirement benefits as 

part of an annuity for federal service. By signing these forms, appellant acknowledged that he was 

in receipt of a prohibited dual benefit.

Despite being given notice that receipt of SSA benefits would reduce his entitlement to 

FECA compensation, appellant continued to accept full FECA benefits during the period 

October 1, 2015 through March 4, 2017. The Board thus finds him at fault under the third 

standard, as he accepted compensation which he knew or should have known that he was not 

entitled to receive and, as such, recovery of the overpayment of compensation in the amount of 

$11,462.78 may not be waived.17

On appeal appellant continues to allege that he was not at fault in the creation of the 

overpayment as he provided OWCP with complete and correct information on multiple CA-1032 

forms, and did not understand how his payments were calculated. As noted above, he had been 

notified by February 9, 2007 and October 3, 2011 that he was not entitled to receive SSA

retirement benefits based upon his FERS annuity simultaneously with FECA compensation 

payments. Appellant also contends that OWCP created the overpayment as it unreasonably 

delayed 15 months after he turned 62 to recalculate his FECA benefits. Even if an overpayment 

resulted from negligence by OWCP, this does not excuse appellant from accepting payment which 

he knew or should have been expected to know he was not entitled to receive.18

The Board, therefore, concludes that OWCP properly determined that appellant was at fault 

in the creation of the overpayment and that waiver of recovery of the overpayment is therefore 

precluded. 

LEGAL PRECEDENT -- ISSUE 3

When an overpayment has been made to an individual who is entitled to further payments, 

OWCP shall decrease later payments of compensation, taking into account the probable extent of 

future payments, the rate of compensation, the financial circumstances of the individual, and any 

other relevant factors, so as to minimize any hardship.19

ANALYSIS -- ISSUE 3

The Board finds that OWCP gave due regard to the financial information appellant 

submitted as well as the factors set forth in section 10.441. As appellant’s monthly income was 

$6,690.39 and his monthly expenses were $4,506.84, OWCP did not abuse its discretion in setting 

 

17 5 U.S.C. § 8129(b); 20 C.F.R. § 10.433(a).

18 20 C.F.R. § 10.435(a); see William E. McCarty, 54 ECAB 525 (2003).

19 20 C.F.R. § 10.441(a).
9

the rate of recovery as $200.00 from each of his continuing compensation payments every 28 

days. The Board finds that OWCP properly determined the recovery of the overpayment in this 

case. 

On appeal appellant contends that recovery of the overpayment would be against equity 

and good conscience as he has no financial assets. As found above, OWCP took into consideration 

the financial information submitted by appellant, as well as the factors set forth in section 10.441(a) 

of its regulations in determining that the $200.00 deduction from his 28-day compensation 

payments would minimize any hardship.

CONCLUSION

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

of compensation in the amount of $11,462.78 for the period October 1, 2015 through 

March 4, 2017. The Board further finds that OWCP properly found him at fault in creating the 

overpayment, and that the overpayment was therefore not subject to waiver of recovery. The 

Board further finds that OWCP properly determined that it would recover the overpayment by 

deducting $200.00 every 28 days from continuing compensation payments.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated April 27, 2017 is affirmed.

Issued: May 4, 2018

Washington, DC

Christopher J. Godfrey, 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