United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Sunrise, FL, Employer

__________________________________________

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Docket No. 19-1082

Issued: October 29, 2019

Appearances: Case Submitted on the Record

Joanne Wright, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 17, 2019 appellant, through her representative, filed a timely appeal from a 

November 23, 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 November 23, 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 

additional evidence for the first time on appeal. Id.
2

ISSUES

The issues are: (1) whether appellant received a $48,649.60 overpayment of compensation 

for the period January 1, 2012 through February 3, 2018 because she concurrently received FECA 

wage-loss compensation and Social Security Administration (SSA) age-related retirement 

benefits; (2) whether OWCP properly found appellant at fault in the creation of the overpayment 

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

required recovery of the overpayment by deducting $450.00 every 28 days from appellant’s 

continuing compensation payments.

FACTUAL HISTORY

On July 23, 1994 appellant, then a 48-year-old mail carrier, filed an occupational disease 

claim (Form CA-2) alleging that she sustained stress, anxiety, and depression causally related to 

factors of her federal employment. She stopped work on June 24, 1994. OWCP accepted 

appellant’s claim for post-traumatic stress disorder (PTSD) and a single episode of moderate-tosevere major depression. OWCP paid her wage-loss compensation for total disability.

By decision dated September 30, 1999, OWCP reduced appellant’s wage-loss 

compensation as her actual earnings as a modified mail handler, effective March 1, 1999, fairly 

and reasonably represented her wage-earning capacity.4

The employing establishment subsequently withdrew appellant’s modified position under 

the National Reassessment Program (NRP). On April 18, 2011 OWCP modified the 

September 30, 1999 decision and paid her wage-loss compensation for total disability on the

periodic rolls beginning April 10, 2011.

In EN1032 forms signed February 4, 2012, February 7, and March 25, 2013, and 

February 6, 2014, appellant indicated that she was not receiving SSA retirement benefits as part 

of an annuity for federal service. 

In EN1032 forms dated February 12, 2015, February 3, 2016, February 22, 2017, and 

February 6, 2018, appellant advised that she received SSA benefits as part of an annuity for federal 

service and indicated the monthly amount of her benefits. 

On March 28, 2017 SSA provided OWCP with a FERS/SSA dual benefit calculation 

worksheet setting forth her SSA rate with FERS and her hypothetical rate without FERS from 

January 2012 through the present. With FERS, her SSA rate was $1,399.90 effective 

January 2012, $1,423.60 effective December 2012, $1,444.90 effective December 2013,

$1,469.40 effective December 2014 and December 2015, and $1,473.80 effective December 2016. 

Without FERS, appellant’s SSA rate was $759.10 effective January 2012, $772.00 effective 

December 2012, $783.50 effective December 2013, $796.80 effective December 2014 and 

December 2015, and $799.10 effective December 2016.

OWCP completed a FERS offset calculation form on February 7, 2018. It calculated the 

amount that it should have offset from appellant’s wage-loss compensation from January 10, 2012 

 

4

In decisions dated 1999 and 2000, OWCP denied appellant’s claim for intermittent wage-loss for various periods

of disability. 
3

through February 3, 2018. OWCP found that effective January 1, 2012, the monthly offset was 

$640.80 ($1,399.90-$759.10), or $591.51 every 28 days, effective December 1, 2013, the monthly 

offset was $651.60 ($1,423.60 - $772.00), or $601.48 every 28 days, effective December 1, 2014 

and 2015, the monthly offset was $672.60 ($1,469.40-$796.80) or $620.86 every 28 days, and 

effective December 1, 2016 the monthly offset was $674.70 ($1,473.80-$799.10), or $622.80 

every 28 days. It divided the 28-day offset amount to find the daily amount, which it multiplied 

by the number of days in each period from January 1, 2012 to December 1, 2016, to find the 

amount that it overpaid appellant for each period. OWCP added the amounts for each period and 

determined that it should have offset $48,649.60 from her wage-loss compensation.

In a preliminary overpayment determination dated February 22, 2018, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $48,649.60 

because it had failed to reduce her wage-loss compensation benefits for the period January 1, 2012

through February 3, 2018 by the portion of her SSA benefits that were attributable to federal 

service. It further advised her of its preliminary determination that she was at fault in the creation 

of the overpayment because she had accepted payments that she knew or reasonably should have 

known to be incorrect. OWCP provided appellant with an overpayment action request form and 

an overpayment recovery questionnaire (Form OWCP-20). Additionally, it notified her that, 

within 30 days of the date of the letter, she could request a telephone conference, a final decision 

based on the written evidence, or a prerecoupment hearing.

On March 12, 2018 appellant requested a telephonic prerecoupment hearing before a 

representative of OWCP’s Branch of Hearings and Review. In an accompanying Form OWCP20, she advised that she had monthly income of $4,008.11 and monthly expenses of $5,030.68. 

Appellant related that she had assets of $53.20. She asserted that she had received disability 

benefits from SSA until February 1, 2011 when she turned 65 years old. Appellant indicated that 

she had reported her SSA income to OWCP.

A telephonic prerecoupment hearing was held on August 14, 2018. Appellant related that 

SSA advised her on August 10, 2010 that it was reducing her benefits due to her receipt of workers’

compensation. On December 29, 2011 it advised her that her benefits had increased as she had 

reached the age of full retirement. Appellant applied for disability retirement in 2013, and 

provided her Civil Service Annuity (CSA) number on subsequent EN1032 forms. Appellant’s 

representative maintained that she had completed the EN1032s, which were updated in 2015 and 

2018, to the best of her ability.

By decision dated November 23, 2018, OWCP’s hearing representative found that 

appellant had received a $48,649.60 overpayment of compensation as she received wage-loss 

compensation from OWCP from January 1, 2012 through February 3, 2016

5 without an 

appropriate offset. She further found that she was at fault in the creation of the overpayment and 

thereby precluded from waiver of recovery of the overpayment. The hearing representative 

determined that the overpayment would be recovered by withholding $450.00 every 28 days from 

appellant’s continuing compensation payments.

 

5 The Board notes that OWCP’s hearing representative likely made a typographical error by using the date 

February 3, 2018 rather than February 3, 2016.
4

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 his or her 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 OWCP’s implementing regulations requires OWCP to reduce the 

amount of compensation by the amount of any SSA age-related benefits that are attributable to the 

employee’s federal service.8 FECA Bulletin No. 97-09 states 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’s regulations provides that entitlement to SSA compensation

begins at 62 years.10 Section 404.409 of SSA regulations provides that for individuals born from 

1943 to 1954, full retirement age is 66 years.11

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $48,649.60 for the period January 1, 2012 through February 3, 

2018 because she concurrently received FECA wage-loss compensation and SSA age-related 

retirement benefits.

OWCP paid appellant wage-loss compensation for total disability following her injury. It 

subsequently paid her wage-loss compensation for partial disability based on her loss of wageearning capacity effective March 1, 1999, and again for total disability beginning April 10, 2011. 

Beginning January 1, 2012, appellant received SSA age-related retirement benefits. As noted, a 

claimant cannot receive compensation for wage-loss compensation and SSA retirement benefits 

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

that a portion of appellant’s age-related SSA benefits were attributable to her federal service. As 

OWCP neglected to offset her FECA benefits for the period January 1, 2012 to February 3, 2018, 

she received an overpayment of wage-loss compensation.13

 

6

5 U.S.C. § 8102.

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August20, 2018).

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

10 20 C.F.R. § 404.310.

11 Id. at § 404.409.

12 Supra note 10; A.C., Docket No. 18-1550 (issued February 21, 2019).

13 Id.
5

Based on the rates provided by SSA, OWCP calculated the overpayment of compensation 

by determining the portion of SSA benefits that were attributable to appellant’s federal service. It 

received documentation from SSA with respect to the specific amount of age-related SSA 

retirement benefits that were attributable to federal service. SSA provided appellant’s SSA rate 

with FERS and without FERS for specific periods beginning January 1, 2012.14 OWCP provided 

its calculations of the amount that it should have offset for each relevant period based on the SSA 

worksheet. The Board has reviewed OWCP’s calculations and finds that it properly determined 

that appellant received prohibited dual benefits totaling $48,649.60, creating an overpayment of 

compensation in that amount.15

LEGAL PRECEDENT -- ISSUE 2

5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be 

made when 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.”

16

 A claimant who is at fault in the creation of the overpayment is not entitled to 

waiver.17 On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at 

fault if he or she has done any of the following: (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 was incorrect.18

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

regulations provide 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.19

ANALYSIS -- ISSUE 2

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

of the overpayment for the period January 1, 2012 through February 3, 2018.

OWCP determined that appellant was at fault in the creation of the overpayment as she 

accepted a payment that she knew or should have known was incorrect. It must thus establish that, 

 

14 SSA’s worksheet provided applicable rates effective the following dates: January 2012, December 2012, 

December 2013, December 2014, December 2015, and December 2016.

15 A.S., Docket No. 19-0171 (issued June 12, 2019).

16 5 U.S.C. § 8129(b).

17 See C.Y., Docket No. 18-0263 (issued September 14, 2018).

18 20 C.F.R. § 10.433(a).

19 Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August3, 2018).
6

at the time she received the compensation in question, she knew or should have known that the 

payment was inaccurate.20

Appellant advised that she had been eligible for disability benefits from SSA prior to 

receiving age-related benefits and that she had applied for retirement benefits in 2013. She 

maintained that after she received a CSA number, she provided it on subsequent EN1032 forms. 

In EN1032 forms dated February 4, 2012, February and March 2013, and February 6, 2014, 

appellant indicated that she was not receiving SSA retirement benefits. In EN1032 forms dated 

February 12, 2015, February 3, 2016, February 22, 2017, and February 6, 2018, she advised that 

she received SSA benefits as part of an annuity for federal service.

Effective September 2018, OWCP’s procedures provide that a claimant should be found 

without fault in a dual benefits scenario where the claimant receives SSA benefits as part of an 

annuity under FERS 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.21 The Board 

finds that OWCP has not sufficiently explained how the completed EN1032 forms established that 

appellant knew or should have known that she was receiving wage-loss compensation benefits 

without an appropriate offset due to her SSA retirement benefits.22 Therefore, based on the 

circumstances described above, OWCP has not established that appellant was at fault in the 

creation of the overpayment for the period January 1, 2012 through February 3, 2018.23

As the Board finds that appellant was without fault in the creation of the overpayment for 

the period February 1, 2012 through February 3, 2018, the case will be remanded to OWCP to 

consider the issue of waiver of recovery of the overpayment.24

CONCLUSION

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

$48,649.60 for the period January 1, 2012 to February 3, 2018 because she concurrently received 

FECA wage-loss compensation and SSA age-related retirement benefits. The Board further finds 

that she was without fault in the creation of the overpayment during the above-noted period and 

that the case will be remanded to OWCP to consider waiver of recovery of the overpayment. 

 

20 See G.D., Docket No. 18-0510 (issued August6, 2018); E.M., Docket No. 17-1987 (issued July 25, 2018).

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

Chapter 6.300.4g (4) (September 2018).

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

23 See B.M., id.

24 In light of the disposition of Issue 2, Issue 3 is rendered moot. 
7

ORDER

IT IS HEREBY ORDERED THAT the November 23, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is 

remanded for further proceedings consistent with this opinion of the Board.

Issued: October 29, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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