United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.N., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL SEA 

SYSTEMS COMMAND, PHILADELPHIA 

NAVAL SHIPYARD, PA, Employer

__________________________________________

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Docket No. 17-1890

Issued: November 26, 2019

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, 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 September 13, 2017 appellant, through counsel, filed a timely appeal from an August 3, 

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 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 August 3, 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

ISSUES

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

amount of $57,434.82 for the period August 1, 2008 to November 12, 2016 because he 

concurrently received FECA benefits and age-related benefits from the Social Security 

Administration (SSA) without an appropriate offset; (2) whether OWCP properly found appellant 

at fault in the creation of the overpayment, thereby precluding waiver of recovery; and (3) whether 

OWCP properly determined that it would recover the overpayment by deducting $500.00 per 

month from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

This case was previously before the Board.4 The facts of the case, as set forth in the prior 

decision, are incorporated herein by reference. The relevant facts are as follows.

On February 9, 1989 appellant, then a 43-year-old tool and parts attendant, filed a notice 

of traumatic injury (Form CA-1) alleging that he sustained a left shoulder and left knee injury on 

February 1, 1989 when he was involved in a motor vehicle accident while in the performance of 

duty. OWCP accepted the claim for cervical, lumbar, knee, and groin strains/sprains. It placed 

appellant on the periodic rolls effective July 25, 1989. Appellant returned to light-duty work on 

May 22, 1990. On June 6, 1990 appellant filed a notice of recurrence (Form CA-2a) alleging that 

he sustained a recurrence of disability on May 25, 1990. OWCP again placed appellant on the 

periodic rolls on July 2, 1990. By decision dated March 26, 1992, it terminated appellant’s 

compensation benefits because the weight of the medical evidence established that his disability 

resulting from the February 1, 1989 employment injury ceased on April 5, 1992. Appellant 

appealed to the Board.

By decision dated November 7, 1994, the Board remanded the case for further medical 

development to resolve the conflict in the medical opinion evidence regarding appellant’s 

continuing disability causally related to his February 1, 1989 employment injury. OWCP, by 

decision dated April 2, 2007, expanded the acceptance of appellant’s claim to include major 

depressive disorder and psychogenic pain.

In a letter dated May 10, 1990, OWCP informed appellant that he was being placed on the 

periodic compensation rolls and of his obligations regarding completing an EN1032 form, which 

required the reporting of retirement income, disability income, and/or compensation benefits he 

received from any federal agency.

In an EN1032 form dated August 3, 2008, appellant indicated that he was not receiving 

benefits from the SSA as part of an annuity for his federal service.

In an EN1032 form dated June 17, 2013, appellant indicated that he was receiving benefits 

from the SSA as part of an annuity for his federal service.

In a form dated October 14, 2016, SSA advised OWCP that appellant had concurrently 

received FECA benefits and age-related benefits through the Federal Employees Retirement 

 

4 Docket No. 93-0896 (issued November 7, 1994).
3

System (FERS) for the period August 1, 2008 to November 12, 2016. SSA provided the amount 

that appellant received in retirement benefits including the amount earned through FERS and the 

hypothetical amount that he would have received without FERS. Including FERS, it indicated that 

appellant was entitled to a monthly entitlement of $602.20, effective August 2008, $637.10,

effective December 2008, December 2009, and June 2010, $733.10, effective June 2011, $759.40,

effective December 2011, $772.30, effective December 2012, $783.90, effective December 2013, 

and $797.10, effective December 2014 and 2015.

In a November 15, 2016 correspondence, OWCP notified appellant that his compensation 

would be offset by the portion of his SSA age-related benefits attributable to his federal service. 

It indicated that he would receive net compensation of $2,068.86 every 28 days effective 

November 13, 2016.

In a preliminary determination dated March 9, 2017, OWCP notified appellant that he had 

received an overpayment of compensation in the amount of $57,434.82 because his compensation 

benefits had not been reduced for the period August 1, 2008 to November 12, 2016, 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 $57,434.82. It further made a preliminary determination that appellant 

was at fault in the creation of the overpayment because he knew or should have known that he 

accepted compensation to which he was not entitled. OWCP requested that he complete the 

enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial 

documentation. 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.

On April 7, 2017 appellant requested a prerecoupment hearing before a hearing 

representative of OWCP’s Branch of Hearings and Review. He requested a waiver of recovery on 

the basis that OWCP was aware of the offset and should have prevented the overpayment of 

compensation. Appellant further submitted an overpayment recovery questionnaire which listed 

monthly income of $5,244.43 and expenses of $3,917.25. Appellant noted that he had assets of 

$61,316.53. He also submitted credit card bills in support of his claim.

A telephonic prerecoupment hearing was held on August 3, 2017.

By decision dated August 3, 2017, OWCP found an overpayment of compensation in the 

amount of $57,434.82 for the period August 1, 2008 to November 12, 2016 because OWCP had 

failed to offset appellant’s compensation payments for the portion of his age-related SSA benefits 

that were attributable to his federal service. It found that he was at fault in the creation of the 

overpayment and denied waiver of recovery of the overpayment as his income exceeded his 

expenses. OWCP determined that it would recover the overpayment by deducting $500.00 every 

28 days from appellant’s 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 
4

performance of duty.5 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.6

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.7 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.8

Section 404.310 of SSA regulations provides that entitlement to SSA age-based benefits 

begins at 62 years of age.9 

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

determining whether the claimant was at fault or not at fault, issuing a preliminary finding, and 

unless a hearing is requested, OWCP is responsible for issuing a final decision.10 These procedures 

note that, if the claimant is determined to be at fault, a Form CA-2201 (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 fault 

must be clearly stated. A Form CA-2201 informs the claimant of the right to submit evidence and 

the right to a prerecoupment hearing on the issue of: (a) fact and amount of overpayment; (b) 

fault; and (c) waiver of recovery of the overpayment. Along with the Form CA-2201, OWCP 

should provide a clearly written statement explaining how the overpayment was created.11

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of wage-loss compensation in the amount of $57,434.82, for the period August 1, 

2008 to November 12, 2016 by the portion of his age-related SSA benefits which were attributable 

to his federal service.

Beginning August 1, 2008, appellant received age-related benefits from SSA, while he 

continued to receive FECA wage-loss compensation. As noted, a claimant cannot receive 

 

5 5 U.S.C. § 8102(a).

6

Id. at § 8116.

7 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

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

9 20 C.F.R. § 404.310.

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

6.200.4(a)(1) (May 2004).

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

concurrent compensation for wage loss and SSA age-related benefits attributable to federal service 

for the same period.12 

The Board finds, however, that OWCP failed to follow its own procedures in issuing the 

March 9, 2017 preliminary overpayment determination.13 As noted, OWCP’s procedures provide 

that a Form CA-2201 (preliminary finding notice) must be released along with an OWCP-20 

within 30 days of the date the overpayment is identified.14 

OWCP was notified by SSA in a form received by OWCP on August 19, 2016 that 

appellant had concurrently received FECA benefits and age-related SSA benefits with a FERS 

component since August 1, 2008. SSA informed OWCP of the amounts of SSA benefits appellant 

was entitled to receive with the FERS component, and without, during the period August 1, 2008 

through August 12, 2016. However, OWCP did not issue a preliminary notice regarding the 

overpayment until March 9, 2017. This preliminary notice was therefore not issued within 30 days 

after the overpayment was identified. 

The Board concludes that OWCP did not follow its own procedures and did not issue a 

preliminary notice of overpayment within 30 days of identifying an overpayment based upon 

appellant’s receipt of SSA age-based benefits.15 

CONCLUSION

The Board finds that OWCP failed to follow its established procedures in determining that 

appellant received an overpayment of compensation in the amount of $57,434.82 during the period 

August 1, 2008 through November 12, 2016.

 

12 See supra note 7; D.M., Docket No. 17-0983 (issued August 3, 2018).

13 P.H., Docket No. 18-1539 (issued August 2, 2019). 

14 Supra note 10. 

15 Based on the Board’s disposition of whether an overpayment of compensation was created, the issues of fault, 

waiver and recovery are moot. 
6

ORDER

IT IS HEREBY ORDERED THAT the August 3, 2017 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: November 26, 2019

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