United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.H., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, Gatlinburg, TN, 

Employer

__________________________________________

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Docket No. 18-0674

Issued: September 3, 2020

Appearances: Case Submitted on the Record

Stephanie N. Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 8, 2018 appellant, through counsel, filed a timely appeal from a January 2, 

2018 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 this case.3

 

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.

3 The Board notes that following the January 2, 2018 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 evidence for 

the first time on appeal. Id. 
2

ISSUES

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

amount of $28,949.55 because he concurrently received Social Security Administration (SSA) 

age-related retirement benefits while also receiving FECA wage-loss compensation benefits for 

the period October 1, 2010 through March 4, 2017, without appropriate offset; (2) whether OWCP 

properly determined that appellant was at fault in the creation of the overpayment and thereby 

precluded from waiver of recovery of the overpayment; and (3) whether OWCP properly required 

waiver of recovery of the overpayment by deducting $200.00 every 28 days from appellant’s 

continuing compensation payments.

FACTUAL HISTORY

On October 20, 2008 appellant, then a 64-year-old electrician, filed a traumatic injury 

claim (Form CA-1) alleging that on September 25, 2008 he injured his right shoulder when drilling 

holes in wall studs while in the performance of duty. OWCP accepted his claim for a right rotator 

cuff tear. It paid appellant wage-loss compensation on the periodic rolls, effective July 5, 2009, 

and informed him of the possibility of a prohibited dual benefit upon receipt of SSA age-related 

retirement benefits.

4

 OWCP also informed him annually, commencing October 1, 2009, that he 

had to report benefits he received from SSA which were received as part of an annuity under FERS 

on an enclosed Form CA-1032. In his responses dated October 6, 2009, October 4, 2010, 

October 5, 2011, October 5, 2012, October 5, 2013, October 16, 2014, and October 27, 2016 he 

denied receipt of SSA benefits. 

OWCP later expanded the acceptance of appellant’s claim to include the additional 

conditions of sprain of the right shoulder, upper arm, and rotator cuff.

5

 By decision dated June 20, 

2016, it expanded the acceptance of his claim to include the additional condition of aggravation of 

glenohumeral arthritis, right shoulder.

On February 2, 2017 SSA advised OWCP that appellant had concurrently received FECA 

compensation and SSA age-related retirement benefits through the Federal Employees Retirement 

System (FERS) for the period October 1, 2010 through March 4, 2017. It provided the amount 

that he received in retirement benefits including the amount earned with FERS and the amount 

that he would have received without FERS. Including FERS, SSA indicated that appellant was 

entitled to a monthly pay rate of $1,376.70 with FERS and $1,022.30 without FERS effective 

October 1 and December 1, 2010; $1,426.30 with FERS and $1,059.10 without FERS effective 

December 1, 2011; $1,450.50 with FERS and $1,077.10 without FERS effective December 1, 

2012; $1,472.20 with FERS and $1,093.20 without FERS effective December 1, 2013; $1,497.20 

 

4 By decision dated October 8, 2009, OWCP issued a preliminary determination that appellant had received an 

overpayment of compensation in the amount of $634.96 because he concurrently received FECA compensation and 

SSA benefits without an appropriate offset for the period August 1 to September 26, 2009. Appellant repaid the 

$634.96 overpayment in full via personal check dated November 4, 2009.

5 By decision dated March 26, 2015, OWCP terminated appellant’s wage-loss compensation, finding that the 

medical evidence of record established that he no longer had disability causally related to his accepted injury. 

Appellant requested reconsideration and, by decision dated June 16, 2016, OWCP vacated its prior decision and 

reopened the claim for reconsideration of the merits.
3

with FERS and $1,111.70 without FERS effective December 1, 2014 and December 1, 2015; and 

$1,501.60 with FERS and $1,115.00 without FERS effective December 1, 2016.

By preliminary determination dated March 20, 2017, OWCP notified appellant that he had 

received an overpayment of compensation in the amount of $28,949.55 because it had failed to 

reduce his compensation benefits for the period October 1, 2010 through March 4, 2017 by the 

portion of his SSA benefits that were attributable to his federal service. It calculated the 

overpayment amount by determining the difference between his SSA amount with and without 

FERS for each period. OWCP then multiplied the daily offset amount by the number of days in 

each period to find a total overpayment of $28,949.55. It further determined that appellant was 

with fault in the creation of the overpayment because he was aware, or reasonably should have 

been aware, that he accepted compensation to which he was not entitled. OWCP requested that 

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

supporting financial documents. Additionally, it notified appellant that, within 30 days of the date 

of the letter, he could request a telephone conference, a final decision based on the written 

evidence, or a prerecoupment hearing.

In a March 22, 2017 letter, OWCP provided notice that it had adjusted appellant’s 

compensation to offset the portion of his SSA age-related retirement benefits attributable to his 

federal service. It indicated that he would receive net compensation in the amount of $1,115.00

every 28 days.

On April 21, 2017 appellant, through counsel, requested a prerecoupment hearing before a 

representative of OWCP’s Branch of Hearings and Review. Appellant disagreed with the fact and 

amount of the overpayment. He also requested waiver of recovery of the overpayment because he 

believed the overpayment occurred through no fault of his own. Appellant submitted a Form 

OWCP-20 which listed monthly income of $1,812.00 for himself and his spouse and $2,537.68 in 

FECA compensation, for total monthly income of $4,349.68. He also listed expenses of $4,472.79, 

which included, in part, $94.67 for rent or mortgage, $601.26 for food, $247.45 for clothing, 

$646.20 for utilities, $2,008.79 for other household expenses, and $874.42 in debts. Appellant 

noted that he had assets of $14,691.25. He also submitted a number of financial statements and 

credit card bills in support of his claim. 

A telephonic prerecoupment hearing was held on October 13, 2017. Appellant reiterated 

his request for waiver of recovery of the overpayment and indicated that, on that date, his checking 

account had a balance of approximately $8,000.00 and his debts totaled approximately $6,900.00, 

which equaled an average monthly debt repayment amount of approximately $200.00. OWCP’s

hearing representative held the case record open for 30 days for the submission of additional 

evidence.

In response, counsel submitted a November 10, 2017 statement asserting that appellant was 

without fault in the creation of the overpayment and was therefore entitled to waiver of recovery

of the overpayment. Counsel submitted additional financial documentation in support of waiver.

By decision dated January 2, 2018, OWCP’s hearing representative found an overpayment 

of compensation in the amount of $28,949.55 for the period October 1, 2010 through March 4, 

2017 because OWCP failed to offset appellant’s compensation payments for the portion of his 

SSA age-related retirement benefits that were attributable to his federal service. She found that 

appellant was with fault in the creation of the overpayment because he knew, or reasonably should 
4

have known, that he was not entitled to receive SSA benefits and FECA wage-loss compensation 

benefits concurrently without appropriate offset. The hearing representative calculated that 

appellant’s monthly income was $4,349.68 and his monthly expenses totaled $4,472.79,

6 which 

yielded a monthly deficit of $123.11. OWCP’s hearing representative found that because appellant 

had not itemized some expenses, the amount of the surplus equaled $551.31 per month. She 

therefore required recovery of the overpayment by deducting $200.00 every 28 days 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.7 However, section 8116 also 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.8

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

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

the employee.9 FECA Bulletin No. 97-09 provides that compensation 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.10

OWCP’s procedures provide that, once an overpayment is identified, it is responsible for 

finding whether the claimant was with fault or without fault, issuing a preliminary determination, 

and unless a hearing is requested, OWCP is responsible for issuing a final decision.11 These 

procedures note that, if the claimant is determined to be without fault, a Form CA-2202 

(preliminary finding notice) must be released (along with a Form OWCP-20) within 30 days of 

the date the overpayment is identified. Both the reason that the overpayment occurred and the 

reason for the finding of without fault must be clearly provided. A Form CA-2202 informs the 

claimant of the right to submit evidence and the right to a prerecoupment hearing on the issues of: 

(a) fact and amount of the overpayment; and (b) waiver of recovery of the overpayment. Along 

with the Form CA-2202, OWCP should provide a clearly written statement explaining how the 

overpayment was created.12

 

6 The Board notes that OWCP calculated appellant’s total expenses as $4,472.49 instead of $4,472.79, which is a 

harmless error.

7 5 U.S.C. § 8102(a).

8

Id. at § 8116.

9 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018). 

10 FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

11 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.200.4(a)(2) (May 2004).

12 Id.; see also P.H., Docket No. 18-1539 (issued August 2, 2019).
5

ANALYSIS -- ISSUE 1

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

$28,949.55 because he concurrently received SSA age-related retirement benefits while also 

receiving FECA wage-loss compensation benefits for the period October 1, 2010 through March 4, 

2017, without appropriate offset.

OWCP accepted that appellant sustained a right rotator cuff tear, sprain of right shoulder 

and upper arm, and an aggravation of right glenohumeral arthritis at work on September 25, 2008. 

It placed appellant on the periodic compensation rolls effective July 5, 2009 and informed him of 

a potential prohibited dual benefit upon receipt of SSA age-related retirement benefits. In a form 

dated February 2, 2017, SSA advised OWCP that appellant had concurrently received FECA 

wage-loss compensation benefits and SSA age-related retirement benefits through FERS for the 

period October 1, 2010 through March 4, 2017. Appellant cannot receive both wage-loss 

compensation and federal retirement benefits concurrently.13 Consequently, he received an 

overpayment of compensation.

OWCP calculated the amount of overpayment by determining the difference between the 

SSA amount with and without FERS for each period and multiplying the daily offset amount by 

the number of days in each period, to find a total overpayment of $28,949.55. The record includes 

an overpayment worksheet explaining the overpayment calculations. There is no contrary 

evidence of record and the Board, accordingly, finds that there was an overpayment of 

compensation in the amount of $28,949.55 for the period October 1, 2010 through March 4, 2017.

LEGAL PRECEDENT -- ISSUE 2

Section 8129(a) of FECA provides that an overpayment of 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 be against equity and 

good conscience.14 No waiver of payment is possible if appellant is with fault in helping to create 

the overpayment.15

Section 10.433(a) of OWCP’s regulations provides that OWCP: 

“[M]ay consider waiving an overpayment of compensation only if the individual to 

whom it was made was not at fault in accepting or creating the overpayment. Each 

recipient of compensation benefits is responsible for taking all reasonable measures

to ensure that payments he or she receives from OWCP are proper. The recipient 

must show good faith and exercise a high degree of care in reporting events which 

 

13 5 U.S.C. § 8116(d). See J.W., Docket No. 16-1355 (issued January 10, 2017); see also FECA Bulletin No. 97-9 

(February 3, 1997).

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

15 Robert W. O’Brien, 36 ECAB 541, 547 (1985).
6

may affect entitlement to or the amount of benefit. A recipient who has done any 

of the following will be found to be at fault in 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; or

(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.)”

16

To determine if an individual was at fault with respect to the creation of an overpayment, 

OWCP examines 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.17

When a claimant receives benefits from the SSA as part of an annuity under FERS

concurrently with disability/wage-loss compensation, the claimant should be found without fault 

unless there is evidence on file that the claimant was aware that the receipt of full SSA age-related 

retirement benefits concurrent with disability/wage-loss compensation was prohibited.18

OWCP’s procedures in effect at the time of the January 2, 2018 decision provided that in 

situations where an equally valid argument could be made both for “without fault” and “with fault,”

the benefit of the doubt should go to the claimant, and a finding of without fault should be made 

consistent with the nature of FECA as social legislation designed to benefit entitled employees.19

ANALYSIS -- ISSUE 2

The Board finds that OWCP improperly determined that appellant was at fault in the 

creation of the overpayment of compensation for the period October 1, 2010 through

March 4, 2017.

As noted above, the Federal (FECA) Procedure Manual identifies that, regarding an SSA 

dual benefits scenario, where the claimant receives SSA age-related retirement benefits as part of 

an annuity and wage-loss compensation under FECA, resulting in an overpayment, the claimant 

should be found not at fault unless there is evidence on file that the claimant was aware that the 

receipt of full SSA age-related retirement benefits concurrent with disability/wage-loss 

compensation was prohibited.20 Because of the complex nature of SSA benefits administration, 

 

16 20 C.F.R. § 10.433(a); see C.Y., Docket No. 18-0263 (issued September 14, 2018); see also 20 C.F.R. § 10.430.

17 Id. at § 10.433(b); see also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Determinations in an Overpayment, Chapter 6.300.4(d) (September 2018).

18 Id. at Chapter 6.300.4g(4) (September 2018).

19 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Fault Determinations, Chapter 6.200.5 

(June 2009).

20 Id.
7

appellant could not have been expected to be able to calculate the amount of an offset. Therefore, 

he could not reasonably have been aware during the relevant period that his concurrent receipt of 

SSA benefits constituted an actual prohibited dual benefit.21

As previously noted, to determine if an individual was at fault with respect to the creation 

of an overpayment, OWCP examines 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.22 Therefore, based on the circumstances 

described, the Board finds that OWCP has not met its burden of proof to establish that appellant 

was at fault in the creation of the overpayment for the period October 1, 2010 through

March 4, 2017.

As appellant was not at fault in the creation of the overpayment for the period October 1, 

2010 through March 4, 2017, the case will be remanded to OWCP to consider the issue of waiver 

of recovery of the overpayment.23

CONCLUSION

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

$28,949.55 because he concurrently received SSA age-related retirement benefits while also 

receiving FECA wage-loss compensation for the period October 1, 2010 through March 4, 2017, 

without appropriate offset. The Board further finds that OWCP improperly determined that 

appellant was at fault in the creation of the overpayment.

 

21 D.G., Docket No. 19-0684 (issued December 24, 2019) (The Board affirmed OWCP’s finding that, due to the 

complexity of SSA age-related retirement benefits administration, appellant was not with fault in the creation of the 

overpayment because he could not have reasonably known that an improper payment had occurred. OWCP 

determined that appellant was not expected to be able to calculate the amount of the offset.).

22 Supra note 17.

23 In light of the Board’s finding with regard to Issue 2, Issue 3 is rendered moot.
8

ORDER

IT IS HEREBY ORDERED THAT the January 2, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and reversed in part.

Issued: September 3, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board