United States Department of Labor

Employees’ Compensation Appeals Board

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C.T., widow of J.T., Appellant

and

DEPARTMENT OF THE INTERIOR, BUREAU 

OF INDIAN AFFAIRS, Belcourt, ND, Employer

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Docket No. 21-0153

Issued: July 21, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

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 November 9, 2020 appellant, the employee’s widow, filed a timely appeal from a 

July 10, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The 

Clerk of the Appellate Boards docketed the appeal as No. 21-0153.

In a January 4, 2010 memorandum of telephone call (Form CA-110), the employee 

informed OWCP that he did not know if he was in the Federal Employees Retirement System 

(FERS) or the Civil Service Retirement System (CSRS).

In a January 27, 2010 election of benefits form, the employee elected to receive Federal 

Employees’ Compensation Act1(FECA) benefits in preference to any benefits to which he may 

have been entitled to under CSRS or FERS.

In a letter dated February 19, 2010, the Office of Personnel Management informed OWCP 

that the employee elected to receive FECA benefits in lieu of Civil Service benefits effective 

December 4, 2009.

 

1 5 U.S.C. § 8101 et seq.
2

On March 9, 2020 OWCP issued a preliminary determination finding that an overpayment 

of compensation in the amount of $15,899.82 had been created.2 It explained that the overpayment 

occurred because the employee’s Social Security Administration (SSA) age-related retirement 

benefits that he received from January 1, 2010 through February 1, 2020 were partially based on 

credits earned while working for the federal government, and that this portion of his SSA benefit 

constituted a prohibited dual benefit. OWCP found appellant at fault in the creation of the 

overpayment because the employee failed to provide information, which he knew or should have 

known, to be material. It forwarded an overpayment action request form and an overpayment 

recovery questionnaire (Form OWCP-20) and requested that appellant provide supporting 

financial documentation, including income tax returns, bank account statements, bills and 

cancelled checks, pay slips, and any other records to support her reported income and expenses. 

OWCP afforded appellant 30 days to respond.

By decision dated July 10, 2020, OWCP finalized its preliminary determination finding

that appellant had received an overpayment of compensation in the amount of $15,899.82, for the 

period January 1, 2010 through February 1, 2020, because it had failed to offset the employee’s 

compensation payments by the portion of his SSA age-related retirement benefits that were 

attributable to federal service. It further found that appellant was without fault in the creation of 

the overpayment, but denied waiver of recovery of the overpayment because the evidence of record 

was insufficient to establish that recovery of an overpayment would defeat the purpose of FECA 

or would be against equity and good conscience. OWCP required recovery of the overpayment by 

forwarding payment in the amount of $125.00 each month.

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 FECA wage-loss 

compensation and SSA age-related retirement benefits without an appropriate offset for benefits 

attributable to FERS.

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 service.3

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 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.4 The

 

2 The case record in indicates that the preliminary overpayment was sent to appellant, employees widow. OWCP’s 

procedures in effect at the time of OWCP’s December 4, 2018 decision, provide for recovery from a deceased debtor’s 

estate. The procedures specifically require that, if the claimant recently passed away, OWCP should refer the debt to 

the financial management system (FMS) for offset of the deceased claimant’s last federal tax refund under the 

Treasury’s Offset Program (TOP). OWCP has a special profile with FMS under TOP for the collection of these 

specific estate debts. The claims examiner should follow the referral procedures set forth in Chapter 6.500.12,

including sending the complete referral package to the National Office for final review and forwarding to the FMS.

See R.B., Docket No. 19-0700 (issued March 16, 2021).

3

J.L., Docket No. 19-1806 (issued July 29, 2020).

4 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, 

Chapter 6.200.1(h) (September 2018).
3

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.5 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.6 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.7 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.8 Following receipt of the purported SSA calculations, a preliminary determination of 

overpayment is issued if a prohibited dual benefit was received.9

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. Other federal employees are not eligible to be enrolled in a federal retirement 

program. Therefore, OWCP’s procedures with regard to requesting offset information 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 does not establish that appellant was enrolled in FERS. The 

record is devoid of evidence as to which retirement system was applicable to appellant. The Board 

therefore finds that the April 2, 2020 decision must be reversed.

 

5 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

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

7

Id.

8

Id.

9 Supra note 2.
4

IT IS HEREBY ORDERED THAT the July 10, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: July 21, 2021

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