United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

ROBINS AIR FORCE BASE, GA, Employer

__________________________________________

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Docket No. 19-1469

Issued: September 28, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On June 26, 2019 appellant, through counsel, filed a timely appeal from a May 23, 2019 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2and 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 May 23, 2019 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 OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $19,302.76, for which she was without fault, 

because she concurrently received FECA wage-loss compensation and Social Security 

Administration (SSA) age-related retirement benefits for the period October 1, 2004 through 

September 15, 2018; (2) whether it properly denied waiver of recovery of the overpayment; and 

(3) whether OWCP properly required recovery of the overpayment by deducting $300.00 from 

appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On May 3, 2004 appellant, then a 62-year-old office assistant, filed an occupational disease 

claim (Form CA-2) alleging that she developed pain in the shoulder, wrist, and hand due to 

repetitive employment activities. She noted that she first became aware of her condition in 

February 2004 and realized its relation to her federal employment on April 5, 2004. OWCP 

initially accepted the claim for right nontraumatic rotator cuff tear. It later expanded the

acceptance of the claim to include bilateral shoulder sprains, keloid scar, and a second-degree burn 

of the right upper extremity.4 Notification of Personnel Action forms (Form SF-50) dated April

19 and June 17 and 18, 2004 identified appellant’s retirement coverage as Federal Employees 

Retirement System (FERS), Code K. Her service computation date was reported as January

11, 1991. 

In August 2003, appellant became eligible to receive SSA age-related retirement benefits. 

Appellant stopped work on July 12, 2004. OWCP thereafter paid her wage-loss 

compensation. After initially placing her on the supplemental rolls, it placed her on the periodic 

compensation rolls, effective November 28, 2004. 

In EN1032 forms dated August 3, 2006 to August 1, 2018, appellant indicated that she had 

not received SSA benefits as part of an annuity for federal service.

On October 15, 2017 SSA forwarded a FERS/SSA dual benefits calculation to OWCP. 

The form provided information for the period October 1, 2004 through November 11, 2017

regarding appellant’s SSA rate with and without FERS. Based on this information, OWCP 

prepared an overpayment calculation worksheet. 

On December 1, 2017 OWCP issued a preliminary determination, finding that an 

overpayment of compensation in the amount of $21,013.76 had been created. It explained that the 

overpayment occurred because a portion of appellant’s SSA age-related retirement benefits that

she received for the period October 1, 2004 through November 11, 2017 were based on credits 

earned while working in the federal government, and that this portion of her SSA benefit was a 

prohibited dual benefit. OWCP found her at fault in the creation of the overpayment and provided 

an overpayment action request form and an overpayment recovery questionnaire (Form 

OWCP-20). It requested that appellant provide supporting financial documentation including 

 

4 Appellant had underwent right shoulder surgery on October 21, 2005 and April 7 and July 19, 2006. She 

underwent left shoulder surgery on October 26, 2006. 
3

income tax returns, bank account statements, bills, cancelled checks, and pay slips. OWCP also

explained its calculation of the overpayment, informed her of the actions she could take, and 

allotted 30 days for her to respond. It reduced appellant’s continuing wage-loss compensation,

effective January 6, 2018, to reflect an adjustment for SSA/FERS offset. 

On December 12, 2017 appellant requested a prerecoupment hearing before OWCP’s 

Branch of Hearings and Review. She indicated that she disagreed with the fact and amount of the 

overpayment. On January 9, 2018 appellant submitted a completed overpayment recovery 

questionnaire in which she indicated that she was receiving a widow’s benefit based on her 

deceased husband’s military and civil service career. She further noted that she began working for 

the employing establishment in 1981. Appellant indicated that she had monthly income of 

$1,255.00, monthly expenses of $1,484.00, and asset value of $42,000.00. 

During the hearing, held telephonically on June 14, 2018, counsel asserted that appellant’s 

SSA income was based on her husband’s earnings, stating that SSA told her that she was only 

receiving benefits due to her husband’s earnings, not her own. He asserted that OWCP had not 

established that she actually received SSA age-related retirement benefits based on her own 

retirement under FERS. OWCP’s hearing representative held the record open for 30 days for the 

submission of additional evidence. 

The record includes SSA information forwarded to OWCP’s hearing representative in 

July 2018. In a letter dated December 20, 2004, SSA advised appellant that, beginning in 

October 2004, she was entitled to monthly retirement benefits of $384.50 and survivor benefits of 

$3.40. In a letter dated July 12, 2005, it informed her that, based on the death of her husband in 

May 2005, she would no longer be entitled to survivor benefits, and that beginning in May 2005 

she would still receive monthly retirement benefits of $384.00, based on her own record. By letter 

dated September 18, 2007, SSA indicated that, based on information it had received from the

Office of Personnel Management, appellant was not currently receiving a pension from work not 

covered by SSA benefits. 

In correspondence dated July 12, 2018, the employing establishment maintained that the 

period of the overpayment was from October 1, 2004 to December 9, 2017. 

By decision dated August 22, 2018, OWCP’s hearing representative set aside the 

December 1, 2017 preliminary overpayment determination and remanded the case for further 

development. On remand OWCP was to obtain written clarification from SSA as to whether 

appellant continued to receive her own SSA retirement benefits after May 2005, whether the SSA 

rates they provided, effective October 1, 2004 through December 2016, were based solely on her

earnings as a federal employee, and to provide any applicable SSA rate with and without FERS 

effective December 2017. 

By letter dated September 4, 2018, OWCP requested that SSA provide the information as 

indicated by the August 22, 2018 decision.

On September 22, 2018 SSA explained that appellant began receiving SSA retirement 

benefits in October 2004 on her own record. Appellantalso began receiving auxiliary benefits in 

October 2004, which became survivor auxiliary benefits in May 2005. In January 2005, she began 

receiving SSA disability benefits on her own record, which SSA noted were not applicable to 

offset. Appellant stopped receiving SSA disability benefits in March 2007. She began receiving 
4

SSA retirement benefits again on her own record in April 2007 and ongoing. SSA provided the 

amount that appellant received in retirement benefits, with and without FERS. It indicated that 

the computations were based on appellant’s SSA benefits only, and that she had been receiving 

SSA benefits since October 2004 on her own record.

SSA also forwarded a FERS/SSA dual benefits calculation form. It indicated that 

beginning in October 2004 appellant’s SSA rate with FERS was $345.30 and without FERS

$252.60; beginning in December 2004, her rate with FERS was $354.30 and without FERS 

$259.40; beginning in April 2007, her SSA rate with FERS was $411.60 and without FERS

$278.80; beginning in December 2007, her SSA rate with FERS was $421.00 and without FERS

$285.10; beginning in December 2008 and December 2009, her SSA rate with FERS was $445.50 

and without FERS $301.60; beginning in December 2010, her SSA rate with FERS was $445.50 

and without FERS $312.50; beginning in December 2011, her SSA rate with FERS was $461.50 

and without FERS $317.70; beginning in December 2012, her SSA rate with FERS was $469.30 

and without FERS $317.70; beginning in December 2013, her SSA rate with FERS was $476.30 

and without FERS $322.50; beginning in December 2014 and December 2015, her SSA rate with 

FERS was $484.40 and without FERS $327.90; beginning in December 2016, her SSA rate with 

FERS was $485.80 and without FERS $328.80; and beginning in December 2017, her SSA rate 

with FERS was $495.50 and without FERS $335.30. 

A FERS calculation worksheet indicated that appellant received a $20,668.96 overpayment 

of compensation for the period October 1, 2004 through September 15, 2018. OWCP based its 

FERS offset overpayment calculation on the information SSA provided on September 27, 2018. 

It, however, incorrectly identified the October and December 2004 SSA rates with FERS as 

$354.30 and $353.40 whereas SSA reported these amounts as $345.30 and $354.30 respectively. 

On October 4, 2018 OWCP issued a preliminary determination, finding that an 

overpayment of compensation in the amount of $19,302.76 had been created because it had failed 

to reduce appellant’s FECA wage-loss compensation payments for the period October 1, 2004 

through September 15, 2018 to offset her SSA retirement benefits, which were a prohibited dual 

benefit. It calculated the overpayment by determining the difference between her SSA benefit 

amount with and without FERS for each period, which resulted in a total FERS/SSA offset for the 

entire period of $20,668.96. OWCP then subtracted $1,366.20 because it had deducted FERS/SSA 

offsets during the period December 10, 2017 through September 15, 2018. This yielded a total 

overpayment of compensation in the amount of $19,302.76. OWCP found appellant at fault in the 

creation of the overpayment. It explained its calculation of the overpayment and informed her of 

the actions she could take. OWCP attached an overpayment action request and an overpayment 

recovery questionnaire (Form OWCP-20) and advised appellant to provide supporting financial 

documentation. It afforded her 30 days to respond. 

On October 29, 2018 appellant requested a prerecoupment hearing before OWCP’s Branch 

of Hearings and Review. She disagreed with the fact and amount of the overpayment. 

During the hearing, held telephonically on March 12, 2019, appellant testified that she had 

only two years of earnings under FERS, from January 2002 through July 2004, and that she was 

under the Civil Service Retirement System for most of her federal employment. She stated that 

she had not drawn any retirement based on her own record and maintained that the information 

from SSA was incorrect. Counsel indicated that he would submit a new overpayment recovery 

questionnaire. OWCP’s hearing representative indicated that the financial documentation was 
5

needed and, if not submitted, he would base his determination on the record. He held the record 

open for 30 days for the submission of additional evidence. No further evidence was submitted.

By decision dated May 23, 2019, OWCP’s hearing representative finalized the

overpayment determination. He found that appellant received an overpayment of compensation 

in the amount of $19,302.76 for the period October 1, 2004 through September 15, 2018 because 

she received a prohibited dual benefit from SSA while she concurrently received FECA 

compensation without appropriate offset. The hearing representative referenced section 8129 of 

FECA and section 10.433(a) of OWCP’s regulations. He found appellant without fault in the 

creation of the overpayment, but denied waiver of recovery of the overpayment, explaining that 

she did not submit any financial documentation to support her reported income, expenses, and 

resources. The hearing representative required recovery by deducing $300.00 every 28 days from 

her continuing FECA compensation.

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.5 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.6

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

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

employee.7 FECA Bulletin No. 97-09 provides 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

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision. 

Beginning October 1, 2004, appellant received FECA wage-loss compensation while

receiving age-related retirement benefits from SSA without appropriate offset. As noted, a 

claimant cannot receive concurrent FECA compensation for wage-loss and age-based SSA 

 

5 5 U.S.C. § 8102(a).

6

Id. at § 8116.

7 20 C.F.R. § 10.421(d); see J.S., Docket No. 19-0824 (issued October 4, 2019); S.O., Docket No. 18-0254 (issued 

August 2, 2018); L.J., 59 ECAB 264 (2007).

8 FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
6

retirement benefits attributable to federal service for the same period.9 Consequently, the fact of 

overpayment has been established.

10

The Board finds, however, that OWCP improperly calculated appellant’s overpayment. To 

determine the amount of the overpayment, the portion of the SSA benefits that were attributable 

to federal service must be calculated. OWCP received documentation from SSA with respect to 

the specific amount of age-based SSA retirement benefits that were attributable to federal service. 

The SSA provided the SSA rate with FERS and without FERS for specific periods from October 1, 

2004 to September 15, 2018. OWCP provided its calculations for each relevant period based on 

the SSA worksheet and in its October 4, 2018 preliminary overpayment determination. However, 

in setting forth the FERS offset amounts on its FERS calculation worksheet, OWCP entered 

incorrect amounts for SSA rates with FERS for the periods beginning October 1 and 

December 1, 2004. As the amount of overpayment for these two periods has not been established, 

the amount of the total overpayment has not been established.11 

As such, the Board finds that the case must be remanded to OWCP. On remand OWCP 

shall determine the proper amount of the overpayment of compensation based on the correct rates 

provided by SSA for the period during which the overpayment occurred. It shall then issue a new 

preliminary overpayment determination, with an overpayment action request form, an 

overpayment recovery questionnaire, and instructions for appellant to provide supporting financial 

information. After this, and other such further development as deemed necessary, OWCP shall 

issue a de novo decision.12

CONCLUSION

The Board finds this case is not in posture for decision.

 

9 See D.C., Docket No. 19-0118 (issued January 15, 2020).

10 Id.

11 See L.B., Docket No. 19-1322 (issued January 27, 2020).

12 As the case is not in posture for decision regarding the amount of overpayment, the issues of waiver of recovery 

and repayment of the overpayment are rendered moot.
7

ORDER

IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part and the case is remanded to OWCP 

for proceedings consistent with this decision of the Board.

Issued: September 28, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board