United States Department of Labor

Employees’ Compensation Appeals Board

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J.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Decatur, AL, Employer

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Docket No. 18-0259

Issued: August 5, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 16, 2017 appellant filed a timely appeal from an October 31, 2017 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 $4,429.79 for the period November 20, 2016 through January 7, 2017 because she 

continued to receive FECA wage-loss compensation after the effective date of her election of 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the October 31, 2017 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

Office of Personnel Management (OPM) retirement benefits; (2) whether OWCP properly 

determined that appellant was at fault in the creation of the overpayment, thereby precluding 

waiver of recovery of the overpayment; and (3) whether OWCP properly determined that appellant 

abandoned her request for a prerecoupment hearing.

FACTUAL HISTORY

On January 9, 2002 appellant, then a 47-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she sustained a back injury when she picked up a tray of 

mail while in the performance of duty. She stopped work on January 9, 2002 and returned to work 

in a limited-duty capacity on January 12, 2002. Appellant’s accepted conditions include lumbar 

strain, lumbar intervertebral disc displacement, and consequential chronic pain disorder. OWCP 

also authorized a January 15, 2003 laminectomy and fusion at L5-S1, and subsequent removal of 

instrumentation.

OWCP paid appellant wage-loss compensation until February 10, 2004 when she returned 

to a full-time modified-duty position. By decision dated December 22, 2004, it found that her

actual earnings as a modified sales service and distribution associate fairly and reasonably 

represented her wage-earning capacity and reduced her wage-loss compensation benefits to zero.

Between 2009 and 2015 OWCP paid appellant compensation for intermittent wage loss 

due to attending medical appointments and sporadic work hours. On October 10, 2015 appellant 

stopped work again because the employing establishment could no longer accommodate her work 

restrictions. OWCP paid her wage-loss compensation for temporary total disability and placed 

appellant on the periodic compensation rolls effective December 13, 2015.

Appellant retired from federal service on September 15, 2016.

In a letter dated September 29, 2016, the employing establishment informed OWCP that 

the OPM approved appellant’s retirement effective September 15, 2016. It requested that OWCP 

provide him with an election of benefits form as she was not entitled to OPM and FECA benefits. 

The employing establishment provided a similar letter to appellant.

In a November 14, 2016 letter, OWCP advised appellant that it was informed that she was 

receiving or may be entitled to benefits from OPM under the Civil Service Retirement System 

(CSRS) or Federal Employees Retirement System (FERS). It explained that any benefits paid by 

OPM (including any lump-sum payment made as part of an alternative annuity under CSRS) and 

benefits for wage-loss paid by OWCP were not payable for the same period of time. OWCP 

explained that individuals entitled to both OWCP and OPM benefits must elect which benefits to 

receive. It noted that the election was not irrevocable and could be changed should appellant 

decide that the benefits of the other plan were more advantageous. OWCP attached an election 

form for appellant to complete.

On November 22, 2016 OWCP received appellant’s completed election form indicating 

that she wished to receive OPM retirement benefits, effective November 20, 2016.

In a Form CA-1032 dated November 24, 2016, appellant indicated that she had not 

received a regular or disability retirement check during the past 15 months.
3

An OWCP compensation termination fiscal worksheet dated January 20, 2017 noted that 

the effective date of the termination was November 20, 2016, and that an overpayment in the 

amount of $4,429.97 had been created as she continued to be paid FECA compensation for 49

additional days.

In a letter dated January 25, 2017, OWCP informed OPM that appellant had elected to 

receive OPM benefits effective November 20, 2016 in lieu of FECA compensation. It requested 

that OPM commence monthly annuity payments effective that date. OWCP also noted that 

appellant had received FECA compensation from November 20, 2016 through January 7, 2017

and requested reimbursement in the amount of $4,429.79 for FECA benefits paid for that.

On April 10, 2017 OWCP issued a preliminary determination that appellant received an 

overpayment of compensation in the amount of $4,429.97 for the period November 20, 2016 

through January 7, 2017. It explained that the overpayment occurred because she received both 

FECA benefits and OPM retirement benefits during this period. OWCP noted that it had requested 

that OPM reimburse it for the $4,429.92, but as of April 10, 2017 OPM had not responded. 

Appellant was found at fault in the creation of the overpayment because she accepted a payment 

that she knew or reasonably should have known was incorrect. OWCP provided an overpayment 

action request and an overpayment recovery questionnaire form (Form OWCP-20). It afforded

appellant 30 days to respond. 

On April 15, 2017 appellant requested a prerecoupment hearing before a hearing 

representative from OWCP’s Branch of Hearings and Review. She indicated that she was not at 

fault in the creation of the overpayment because she was informed by an OWCP case manager that 

she was entitled to compensation as she had not yet received her retirement payment. Appellant 

provided a partially completed Form OWCP-20, which indicated that she had funds totaling

$5,020.00.3

By decision dated May 15, 2017, OWCP informed appellant that its preliminary 

determination of an overpayment of compensation in the amount of $4,429.97 and finding of fault 

was correct. It noted that she had not responded to the April 10, 2017 preliminary determination. 

OWCP advised appellant that OPM would provide OWCP with the full amount of the 

overpayment.

On June 15, 2017 OWCP received a reimbursement payment of $4,429.97 from OPM. 

Appellant replied to OWCP’s May 15, 2017 decision in a letter dated June 12, 2017, 

received on June 16, 2017. She explained that when she received a direct deposit in her bank 

account, she promptly called OWCP and was told that as long as she had not received any money 

from OPM then she was entitled to keep the money. Appellant noted that she was following the 

rules told to her and expressed frustration that she was being punished for someone else’s mistake.

In a September 12, 2017 notice, OWCP’s Branch of Hearings and Review scheduled a 

prerecoupment hearing for 9:30 a.m. Eastern Standard Time (EST) on October 13, 2017. It 

 

3 Appellant indicated that she had $20.00 cash on hand, $1,000.00 in her checking account, and $4,000.00 in her 

savings account.
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provided appellant with a toll-free number and passcode for the telephonic hearing. The notice 

was mailed to appellant’s address of record. 

On October 13, 2017 appellant failed to participate in the telephonic prerecoupment 

hearing.

By decision dated October 31, 2017, an OWCP hearing representative found that appellant 

failed to appear at the prerecoupment hearing and had, therefore, abandoned her request. She 

determined that appellant had failed to contact OWCP prior to or subsequent to the scheduled 

hearing to explain her failure to appear. The hearing representative also finalized the April 10, 

2017 preliminary overpayment determination, finding an overpayment of compensation in the 

amount of $4,429.97 for the period November 20, 2016 through January 7, 2017. She also 

determined that appellant was not entitled to waiver of the recovery of the overpayment because 

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

duty.4 

Section 8116 of FECA defines the limitations on the right to receive compensation benefits. 

This section of FECA 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 OWCP 

benefits and OPM benefits. The employee has the right to elect the monetary benefit which is 

more advantageous. This policy also applies to reemployed annuitants.8

 

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 2.100.4a (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

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $4,429.79 for the period November 20, 2016 

through January 7, 2017.

Appellant retired from federal service on September 15, 2016. On November 22, 2016 

OWCP received her completed election form indicating that she wished to receive OPM retirement 

benefits effective November 20, 2016. Appellant continued to receive FECA wage-loss 

compensation benefits through January 7, 2017. An OWCP compensation termination fiscal 

worksheet dated January 20, 2017 noted that the effective date of the termination of FECA benefits 

was November 20, 2016, and that an overpayment in the amount of $4,429.97 had been created as 

she continued to be paid FECA compensation for 49 additional days.

On May 15, 2017 OWCP finalized its determination that appellant received an 

overpayment of compensation in the amount of $4,429.97 for the period November 20, 2016 

through January 7, 2017. It explained that the overpayment occurred because appellant received 

both FECA benefits and OPM retirement benefits during this period. OWCP also determined that 

appellant was at fault in the creation of the overpayment.

A FECA beneficiary may not receive wage-loss compensation concurrently with a federal 

retirement or survivor annuity.

9

 The clear language of section 8116(a) of FECA, section 10.421(a) 

of OWCP’s implementing regulations, and OWCP procedures prohibits the concurrent receipt of 

FECA wage-loss benefits and a federal annuity.10

The Board finds that OWCP has not met its burden of proof to establish that appellant was 

in receipt of a prohibited dual benefit during the period in question. It was not until January 25, 

2017 that OWCP informed OPM that appellant had elected to receive retirement annuity benefits 

effective November 20, 2016 in lieu of FECA compensation and requested that OPM commence 

annuity payments effective retroactively to that date. This establishes that appellant had not 

received retirement annuity payments commencing November 20, 2016. Moreover, appellant 

consistently maintained that she had not been in receipt of OPM benefits and on June 15, 2017 

OPM reimbursed OWCP in the amount of $4,429.97, which is the amount of the purported 

overpayment. The Board has previously held that the mere fact that a claimant received FECA 

benefits after the effective date of an OPM election will not establish receipt of a prohibited dual 

benefit.11

 

9 Supra note 6.

10 5 U.S.C. § 8116(a); 20 C.F.R. § 10.421(a); Federal (FECA) Procedure Manual, supra note 8. 

11 B.H., Docket No. 13-1955 (issued January 29, 2014).
6

Therefore, the Board finds that the evidence of record does not support a finding of fact of 

overpayment as OWCP had not received evidence of appellant’s receipt of annuity payments from 

OPM, which would have established a prohibited dual benefit.12 

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $4,429.79 for the period November 20, 2016 

through January 7, 2017.

ORDER

IT IS HEREBY ORDERED THAT the October 31, 2017 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 5, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

12 In light of the Board’s findings as to issue 1, issues 2 and 3 are moot.