United States Department of Labor

Employees’ Compensation Appeals Board

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A.P., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

DEFENSE COMMISSARY AGENCY, 

MAXWELL-GUNTER AIR FORCE BASE, 

Montgomery, AL, Employer

__________________________________________

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Docket No. 19-1671

Issued: February 22, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

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 August 5, 2019 appellant filed a timely appeal from July 1 and 2, 2019 merit decisions

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

consider the merits of this case.2

ISSUES

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

amount of $5,738.23 for which he was not at fault, because he concurrently received FECA wage-

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance of the July 2, 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

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

the period February 26, 2017 through December 31, 2018 without an appropriate offset; 

(2) whether OWCP properly denied waiver of recovery of the $5,738.23 overpayment; (3) whether 

appellant also received an overpayment of compensation in the amount of $1,594.07 for which he 

was not at fault because he concurrently received Office of Personnel Management (OPM) 

retirement benefits and FECA wage-loss compensation benefits for the period January 1 through 

April 27, 2019; and (4) whether OWCP properly denied waiver of recovery of the $1,594.07 

overpayment.

FACTUAL HISTORY

OWCP accepted that on November 15, 2015 appellant, then a 77-year-old store worker, 

sustained a strain of unspecified muscle(s) and tendon(s) at the “lower leg level, left leg,” initial 

encounter; other strain of the left hip, initial encounter; and lumbar radiculopathy as he removed a 

product from a stocking cart that tipped over and caused him to fall on the floor while in the 

performance of duty. He stopped work on February 26, 2017 and returned to work on 

September 14, 2017 in a modified-duty store worker position, four hours per day. OWCP paid 

appellant wage-loss compensation on the supplemental rolls from February 26 to June 24, 2017, 

on the periodic rolls from June 25 to September 16, 2017, and again on the supplemental rolls from 

September 19, 2017 to April 14, 2018. On April 15, 2018 it reduced his wage-loss compensation 

based on his actual earnings as a modified-duty store worker. 

In a February 21, 2019 memorandum of a telephone call (Form CA-110), appellant notified 

OWCP that he had retired on December 31, 2018 and that he was waiting to receive retirement 

benefits from the Office of Personnel Management (OPM).

On March 27, 2019 appellant signed a form electing retirement benefits through OPM in 

lieu of compensation under FECA. On April 23, 2019 he signed a separate form noting the 

election. Both forms listed the effective date of appellant’s election as January 1, 2019.

On April 10, 2019 OWCP provided SSA with a FERS/SSA dual benefits calculation form.

In an EN1032 form signed April 16, 2019, appellant indicated that he had not received 

disability or retirement benefits from OPM. He, however, noted that he received SSA retirement 

benefits due to his age.

On April 24, 2019 OWCP again requested that SSA provide a dual benefits calculation. 

SSA returned the form on that same day, indicating that: beginning in January 2017, appellant’s 

SSA rate was $1,041.00 with FERS and $648.20 without FERS; beginning in December 2017, his 

SSA rate was $1,061.80 with FERS and $661.00 without FERS; beginning in January 2018, his 

SSA rate was $1,070.80 with FERS and $661.00 without FERS; and beginning in December 2018, 

the SSA rate was $1,100.70 with FERS and $679.50 without FERS.

A May 1, 2019 Form CA-110 indicated that appellant called again to inform OWCP that 

he was regular “SS.” Another Form CA-110 of even date indicated that OWCP had requested that 

the employing establishment verify appellant’s retirement coverage and the employing 

establishment confirmed that he was under the FERS program.
3

In a letter dated May 1, 2019, OWCP informed OPM that appellant had elected to receive

OPM retirement benefits, effective January 1, 2019, in lieu of wage-loss compensation benefits 

under FECA. It requested that OPM commence monthly annuity payments, effective January 1, 

2019, and to process his health benefits enrollment forms, which it was transferring to OPM. 

OWCP also requested that OPM reimburse the amount of $1,594.07 in compensation appellant 

received during the period January 1 through April 27, 2019. It attached a copy of the election 

form completed by appellant on April 23, 2019.

On May 3, 2019 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $1,594.07 had been created because appellant received both FECA 

compensation benefits and OPM retirement benefits for the period January 1 through 

April 27, 2019. It further found that he was at fault in its creation because, “You recently elected 

OPM benefits in lieu of FECA benefits, but you did so retroactively. You should have reasonably 

known that the payments issued after the effective date of the election ... would be improper due 

to the overlapping dates with a period of benefits from OPM.” OWCP explained its calculation of 

the overpayment and provided appellant with an overpayment action request form and an 

overpayment recovery questionnaire (Form OWCP-20) for his completion. It also informed him

of the actions he could take, and allotted 30 days for him to respond.

OWCP, in a FERS offset calculation worksheet dated May 20, 2019, found an 

overpayment of compensation in the amount of $3,599.95 for the period February 26 through 

November 30, 2017, $409.61 for the period December 1 through 31, 2017, and $1,405.03 for the 

period January 1 through April 14, 2018.

On May 22, 2019 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $5,738.23 had been created for the period February 26, 2017 

through December 31, 2018. It explained that the overpayment occurred because appellant 

received both FECA compensation benefits and OPM retirement benefits for the period 

February 26, 2017 through December 31, 20183 without appropriate FERS offset, which resulted 

in a prohibited dual benefit. OWCP also made a preliminary determination that he was without

fault in its creation, finding that, due to the complexity in benefits administration, he could not 

have reasonably known that an improper payment occurred. It explained its calculation of the 

overpayment and provided appellant with an overpayment action request form and a Form OWCP20 for his completion. OWCP also informed him of the actions he could take, and allotted 30 days 

for him to respond.

In an overpayment action request form completed by appellant on May 20, 2019 and 

received by OWCP on May 30, 2019, appellant requested waiver of recovery of the $1,594.07 

overpayment since the overpayment occurred through no fault of his own. He noted that on 

December 31, 2018 he spoke to Mrs. R. and told her to stop his compensation payment because 

he had retired. After appellant received another compensation payment in January 2019 he again 

called Mrs. R. to stop the payment for the same reason. Mrs. R. advised him that the payment 

could not be stopped until he made an election of benefits. Appellant indicated that he 

 

3 The Board notes that a typographical error was made by OWCP in its May 22, 2019 preliminary determination as 

it indicated that the overpayment period ended on December 31, 2019, rather than on December 31, 2018. The FERS 

offset calculation sheet indicates that the overpayment was calculated for the period February 26, 2017 through 

December 31, 2018.
4

subsequently selected OPM benefits. On an attached Form OWCP-20 dated May 20, 2019, 

appellant listed total monthly income of $734.00 and monthly expenses of $1,201.00. Het reported

assets of $6,000.00 from checking and savings accounts.

During a telephone conference held on June 14, 2019, an OWCP senior claims examiner 

addressed the issue of waiver of recovery of appellant’s $5,738.23 overpayment for the period 

February 26, 2017 through December 31, 2018 along with the separate overpayment of 

compensation in the amount of $1,594.07 that occurred for the period January 1 through 

April 27, 2019. He noted that appellant reported total monthly income of $2,503.004and monthly 

expenses of $1,858.50.5 The claims examiner determined that appellant’s monthly income

exceeded his monthly expenses by $644.50 per month ($2,503.00 monthly income - $1,858.50 

monthly expenses) and, thus, he was not entitled to waiver of recovery of the overpayment.

In an overpayment action request form signed June 21, 2019, appellant requested that 

OWCP issue a decision based on a review of the written record regarding the $5,738.23 

overpayment. He also requested a telephonic prerecoupment hearing before a representative of 

OWCP’s Branch of Hearings and Review. Additionally, appellant requested waiver of recovery 

of the overpayment as he believed that the overpayment occurred through no fault of his own. In 

a completed Form OWCP-20 dated June 21, 2019, he listed total monthly income of $1,234.00

and monthly expenses of $705.00.

OWCP, by decision dated July 1, 2019, finalized its determination that a $1,594.07 

overpayment of compensation was created for the period January 1 through April 27, 2019. It 

explained that the overpayment occurred because appellant received both FECA wage-loss 

compensation and OPM retirement benefits between February 26, 2017 and December 31, 2018. 

OWCP, however, modified its preliminary determination of fault, finding that appellant was 

without fault in creation of the overpayment because he did not understand the consequences of 

his decision to elect OPM retirement benefits in lieu of FECA benefits. It denied waiver of 

recovery of the overpayment of compensation as his monthly income exceeded his monthly 

expenses based on the sums provided during the June 14, 2019 telephone conference. OWCP 

ordered appellant to repay the $1,594.07 overpayment in full.

By decision dated July 2, 2019, OWCP also finalized its determination that a $5,738.23 

overpayment of compensation was created for the period February 26, 2017 through December 31, 

2018, because appellant was paid dual compensation under FECA and SSA without appropriate 

offset. It calculated the overpayment of compensation by determining the difference between 

appellant’s SSA benefit rates with and without FERS for each period, and then multiplying that 

 

4

In his calculation, OWCP’s senior claims examiner miscalculated the total amount of appellant’s monthly income 

as $2,513.00. Monthly income was reported as $965.00 from SSA, $1,269.00 in military retirement benefits, and 

$269.00 in VA disability benefits. This amounts to $2,503.00 as opposed to the $2,513.00 total found by the claims 

examiner.

5 The Board notes that the claims examiner incorrectly calculated a total of $1,852.50 for appellant’s monthly 

expenses. The monthly expenses were reported as: $605.00 for rent or mortgage; $200.00 for food; $57.00 for 

electricity; $55.00 for water; $75.00 for insurance; $108.50 for a telephone combined with cable/internet; $200.00 for 

a vehicle payment; $200.00 for vehicle fuel/oil; $60.00 for vehicle insurance; $20.00 for medication; $26.00 for a 

membership; $26.00 for accident insurance; $100.00 for a bank credit card; $31.00 for another bank credit card; $25.00 

for a store credit card; and $70.00 for a another store credit card. This amounts to $1,858.50 rather than the $1,852.50 

total found by the claims examiner.
5

amount by the number of days in each period. OWCP utilized the 28-day FERS offset amount for 

the 278 days from February 26 through November 30, 2017, 31 days from December 1 through 

31, 2017, and January 1 through April 14, 2018, and found corresponding overpayments of 

$3,599.95, $409.61, and $1,405.03, respectively, for a total overpayment amount of $5,414.59. It 

did not utilize the 28-day FERS offset for the period April 15 through December 31, 2018 because 

the amount of the 28-day offset exceeded the amount of compensation actually paid to appellant 

when his compensation was reduced on April 15, 2018. OWCP indicated that the total 

compensation paid for this period was $2,200.50. It then concluded that the total FERS/SSA 

offsets for all the periods that should have been withheld from appellant’s wage-loss compensation 

was $5,738.23 for the period February 26, 2017 through December 31, 2018. OWCP found that 

he was without fault in the creation of the overpayment, but denied waiver of recovery of the 

overpayment because he failed to establish that he needed substantially all of his monthly income 

to meet current ordinary and necessary living expenses. It ordered appellant to repay the $5,738.23 

overpayment in the amount of $250.00 per month, commencing August 19, 2019.

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 retirement benefits that are 

attributable to the employee’s federal service.8 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 

age-related retirement 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

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation for the period 

February 26, 2017 through December 31, 2018. 

The record establishes that appellant received SSA age-related retirement benefits 

attributable to his federal service beginning February 26, 2017, in addition to FECA wage-loss 

compensation. Appellant is precluded from simultaneously receiving FECA wage-loss 

 

6 5 U.S.C. § 8102(a).

7

Id. at § 8116.

8 20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued 

August 20, 2018).

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

compensation and SSA age-related retirement benefits based on his federal service.10 On April 24, 

2019 SSA represented that a portion of appellant’s monthly retirement benefit was attributable to 

his federal service. Consequently, OWCP was obliged to offset appellant’s FECA wage-loss 

compensation by the amount of SSA age-related retirement benefits attributable to his federal 

service.11

Although the Board finds that the fact of overpayment has been established, the Board 

further finds that the case is not in posture for decision with respect to the amount of the 

overpayment. OWCP is required by statute and regulation to make findings of fact and provide a 

statement of reasons.12 Further, the Board has held that, in overpayment cases, it is essential that 

OWCP provide the recipient of compensation with a clear statement showing how the 

overpayment was calculated.13 As noted, the record establishes that appellant received SSA agerelated retirement benefits, which were attributable to his federal service. However, it is not clear 

how the amount of the overpayment was derived. OWCP received documentation from SSA with 

respect to the specific amount of age-related SSA retirement benefits that were attributable to 

federal service. SSA provided the SSA rate with FERS and without FERS for specific periods 

commencing January 2017 through December 2018. 

For the period February 26, 2017 through April 14, 2018, SSA provided appellant’s SSA 

rate with FERS and without FERS. OWCP provided its calculations of the amount that it should 

have offset for each relevant period based on the SSA worksheet and determined that he received 

an overpayment in the amount of $5,414.59 for the period February 26, 2017 through 

April 14, 2018. For the period April 15 through December 31, 2018, it found that use of the 

applicable SSA rates were not warranted because the amount of the 28-day offset amount exceeded 

the amount of compensation appellant received as a result of its April 15, 2018 loss of wageearning capacity determination. While OWCP determined that appellant received wage-loss 

compensation in the amount of $2,200.00 and concluded that the total overpayment amount for 

the period February 26, 2017 through December 31, 2018 was $5,738.23, the record reveals that 

he actually received $3,591.91 in wage-loss compensation. Additionally, it did not explain how it 

added $2,200.00 to obtain the total overpayment amount. For these reasons, the Board finds that 

the record does not support that the overpayment was calculated correctly for the period April 15 

through December 31, 2018.

Accordingly, 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, a 

Form OWCP-20, and instructions for appellant to provide supporting financial information. After 

 

10 Id.

11 5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

12 Id. at § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or against 

payment of compensation. Id. at § 10.126 provides that its final decision shall contain findings of fact and a statement 

of reasons. See also H.B., Docket No. 19-0356 (issued March 20, 2020); Order Remanding Case, H.O., Docket No. 

19-0198 (issued July 3, 2019).

13 J.M., Docket No. 18-1505 (issued June 21, 2019); Teresa A. Ripley, 56 ECAB 528 (2005).
7

this, and other such further development as deemed necessary, OWCP shall issue a de novo

decision.14

LEGAL PRECEDENT -- ISSUE 3

Section 8102 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.15 Section 8116(a) states that while an employee is receiving workers’

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the armed forces, including benefits administered by the VA, unless such benefits are 

payable for the same injury or the same death being compensated for under FECA.16

Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may 

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity.17 

The beneficiary must elect the benefit that he or she wishes to receive.18 OWCP’s procedures also 

explain that the employee must make an election between OWCP benefits and OPM benefits. The 

employee has the right to elect the monetary benefit which is the more advantageous.19

ANALYSIS -- ISSUE 3

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $1,594.07 for the period January 1 through 

April 27, 2019.

On March 27 and April 23, 2019 appellant completed forms indicating his election of OPM 

retirement benefits effective January 1, 2019. OWCP, however, continued to pay him wage-loss 

compensation for temporary total disability for the period January 1 through April 27, 2019. It 

calculated that an overpayment of $1,594.07 was therefore created.

A FECA beneficiary may not receive wage-loss compensation concurrently with a federal 

retirement or survivor annuity.20 The clear language of section 8116(a) of FECA, section 

 

14 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot. 

15 5 U.S.C. § 8102(a).

16 Id. at § 8116(a).

17 20 C.F.R. § 10.421(a).

18 Id.

19 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also 

R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued 

March 30, 1994).

20 Supra note 19.
8

10.421(a) of OWCP’s implementing regulations, and OWCP’s procedures prohibit the concurrent 

receipt of FECA wage-loss benefits and a federal annuity.21

However, there is no evidence of record establishing that appellant actually received OPM 

retirement benefits for the period January 1 through April 27, 2019.

22

 It was not until May 1, 2019

that OWCP informed OPM that appellant had elected to receive retirement annuity benefits 

effective January 1, 2019 in lieu of FECA wage-loss compensation and requested that OPM 

commence annuity payments effective retroactively to that date.

OWCP based its overpayment findings on its determination that appellant had received 

prohibited dual OPM and FECA benefits for the period January 1 through April 27, 2019. The 

Board has previously held that the mere fact that a claimant received FECA benefits after the 

effective date of an OPM election will not establish receipt of a prohibited dual benefit.

23

 While 

the record reflects that appellant received FECA benefits for this period, the Board finds that 

OWCP had not established that he also received OPM retirement benefits for that same period.24

The Board, thus, finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $1,594.07 for the period January 1 through 

April 27, 2019.25

CONCLUSION

With regard to the July 2, 2019 OWCP decision, the Board finds that appellant received an 

overpayment of compensation for the period February 26, 2017 through December 31, 2018 for 

which he was not at fault, because he concurrently received FECA wage-loss compensation and 

SSA age-related retirement benefits without appropriate offset. The Board further finds, however, 

that the case is not in posture for decision regarding the amount of that overpayment. With regard 

to the July 1, 2019 decision, the Board finds that OWCP improperly determined that appellant 

received an overpayment of compensation in the amount of $1,594.07 for the period January 1 

through April 27, 2019.26

 

21 5 U.S.C. § 8116(a); 20 C.F.R. § 10.421(a); Federal (FECA) Procedure Manual, supra note 19.

22 See V.B., Docket No. 19-1874 (issued June 4, 2020); C.P., Docket No. 19-0732 (issued September 5, 2019); 

J.M., Docket No. 15-1604 (issued May 23, 2016).

23 Id. See also B.H., Docket No. 13-1955 (issued January 29, 2014).

24 R.R., Docket No. 18-0032 (issued May 3, 2018) (the election form signed by appellant on December 21, 2018 

was insufficient to show that he actually began receiving OPM retirement benefits). See also E.R., Docket No. 18-

0084 (issued July 27, 2018).

25 See V.B., supra note 22; J.A., Docket No. 18-0259 (issued August 5, 2019).

26 In light of the Board’s disposition of Issue 3, Issue 4 is rendered moot.
9

ORDER

IT IS HEREBY ORDERED THAT the July 2, 2019 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further 

proceedings consistent with this decision of the Board. The July 1, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

27

Issued: February 22, 2021

Washington, DC

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

27 Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer 

a member of the Board after January 20, 2021.