United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant 

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, ALASKA NATIVE MEDICAL 

CENTER, Anchorage, AK, Employer

__________________________________________

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Docket No. 19-0023

Issued: September 3, 2020

Appearances: Case Submitted on the Record

Anne M. Dressen, 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 October 3, 2018 appellant, through her representative, filed a timely appeal from a 

July 5, 2018 nonmerit decision and a July 17, 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 to consider 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 July 17, 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 OWCP properly determined that appellant received an

overpayment of compensation in the amount of $126,789.23 because she concurrently received 

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

retirement benefits without an appropriate offset for the period February 1, 2008 to March 31, 

2018; (2) whether OWCP properly determined that appellant was at fault in the creation of the 

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

properly required recovery of the overpayment by deducting $1,400.00 every 28 days from 

appellant’s continuing compensation payments; and (4) whether OWCP properly denied 

appellant’s request for a prerecoupment hearing.

FACTUAL HISTORY

On March 25, 1998 appellant, then a 60-year-old registered nurse, filed a traumatic injury 

claim (Form CA-1) alleging that on March 19, 1998 she injured the front of her body and chin 

when she slipped and fell forward on loose gravel while in the performance of duty. OWCP 

accepted her claim for multiple contusions, lacerations in the mouth, fractured jaw, and anxiety 

disorder. Appellant stopped work on the date of injury and did not return. OWCP paid wage-loss 

compensation on the supplemental rolls from May 4, 1998 on the periodic rolls effective 

March 31, 1999.

On EN1032 forms completed by appellant from March 4, 2008 to March 4, 2018, she 

indicated that she was not receiving SSA age-related retirement benefits as part of an annuity for 

federal service. 

On March 30, 2018 SSA forwarded a Federal Employees Retirement System (FERS)/SSA 

dual benefits calculation form to OWCP. The form indicated that, beginning in February 2008 

appellant’s SSA rate with FERS was $1,888.80 and without FERS $948.10; beginning in 

December 2008 through November 2011, her SSA rate with FERS was $1,998.30 and without 

FERS $1,003.10; beginning in December 2011, appellant’s rate with FERS was $2,070.20 and 

without FERS $1,039.10; beginning in December 2012, appellant’s rate with FERS was $2,105.20 

and without FERS $1,056.70; beginning in December 2013, appellant’s SSA rate with FERS was 

$2,136.80 and without FERS $1,072.40; beginning in December 2014 through November 2016, 

appellant’s SSA rate with FERS was $2,173.10 and without FERS $1,090.60; beginning in 

December 2016, appellant’s SSA rate with FERS was $2,179.50 and without FERS $1,093.70; 

and beginning in December 2017, appellant’s SSA rate with FERS was $2,223.00 and without 

FERS $1,115.50. 

In a letter dated April 5, 2018, OWCP informed appellant that she had been receiving a 

prohibited dual benefit. It noted that, pursuant to section 8116(d) of FECA, the portion of SSA 

benefits earned as a federal employee was part of her retirement, and that the receipt of wage-loss 

compensation under FECA and this portion of her SSA retirement was a prohibited dual benefit.

OWCP notified appellant that, based on information provided by SSA regarding the amount her 

SSA age-related retirement benefits were attributable to federal service, her FECA wage-loss 

compensation had been adjusted. An OWCP worksheet described its overpayment calculations. 
3

On April 16, 2018 OWCP issued a preliminary determination finding that an overpayment 

of compensation in the amount of $126,789.23 had been created. It explained that the overpayment 

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

from February 1, 2008 to March 31, 2018 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 because she failed to report on the annual 

EN1032 forms that she was in receipt of SSA benefits from 2008 to the present. It provided an 

overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20)

for appellant’s completion.

4

 OWCP explained that its calculation of the overpayment, informed 

her of the actions she could take, and allotted 30 days for her to respond. 

On May 22 2018 appellant faxed the overpayment action request to an OWCP senior 

claims examiner. She requested a prerecoupment hearing before OWCP’s Branch of Hearings and 

Review on the issues of fault and possible waiver of recovery of the overpayment. Appellant 

indicated that she believed that the overpayment occurred through no fault of her own, writing that 

she did not understand what the form was asking for when she filled it out. She did not submit an 

overpayment recovery questionnaire. In an attached letter, appellant’srepresentative reported that, 

because appellant and her husband required visits to an emergency room and the physician, she 

was unable to obtain the requested paperwork at that time. The representative also requested a 

hearing. 

In correspondence postmarked June 5, 2018, appellant’s representative also mailed a copy 

of the overpayment action request form and letter to OWCP’s Branch of Hearings and Review, 

noting that she had done so based on the instructions of the claims examiner. 

By decision dated July 5, 2018, OWCP denied appellant’s request for a prerecoupment 

hearing as untimely filed. It informed her that, as her request was not made within 30 days of the 

April 16, 2018 decision, she was not, as a matter of right, entitled to a prerecoupment hearing. 

By decision dated July 17, 2018, OWCP finalized the preliminary overpayment 

determination. It found that appellant was paid both FECA compensation and SSA age-related 

retirement benefits without a FERS adjustment for the period February 1, 2008 to March 31, 2018, 

a prohibited dual benefit. OWCP noted that she failed to report that she was receiving SSA benefits 

on the EN1032 forms she completed from 2008 to present, and that she had not submitted the 

requested overpayment questionnaire or financial information. It found appellant at fault in the 

creation of the overpayment because she knowingly accepted wage-loss compensation to which 

she was not entitled. OWCP determined that $1,400.00 would be deducted from her continuing 

compensation every 28 days. 

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 OWCP explained that appellant was to attach supporting documentation to the Form OWCP-20 overpayment 

recovery questionnaire including income tax returns, bank account statements, bills and cancelled checks, pay slips, 

and any other records which supported income and expenses listed. 
4

performance of his or her federal employment.5 Section 8129(a) of FECA provides, in pertinent 

part: “When an overpayment has been made to an individual under this subchapter because of an 

error of fact or law, adjustment shall be made under regulations prescribed by the Secretary of 

Labor by decreasing later payments to which an individual is entitled.”

6

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

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

employee.7 FECA Bulletin No. 97-9 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 OWCP properly determined that appellant received an overpayment 

of compensation in the amount of $126,789.23 for the period February 1, 2008 to March 31, 2018.

In its July 17, 2018 decision, OWCP found that an overpayment of compensation was 

created for the period February 1, 2008 to March 31, 2018 based on the evidence OWCP received 

from SSA with respect to age-related retirement benefits paid to appellant. A claimant cannot 

receive both FECA compensation for wage loss and SSA age-related retirement benefits 

attributable to federal service for the same period.9 The information provided by SSA indicated 

that appellant received SSA age-related retirement benefits that were attributable to federal service 

during the period February 1, 2008 to March 31, 2018. 

To determine the amount of the overpayment, the portion of the SSA age-related retirement 

benefits that were attributable to federal service must be calculated. OWCP received 

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

benefits that were attributable to federal service. The SSA provided the compensation rate with 

FERS, and without FERS for specific periods February 1, 2008 to March 31, 2018. OWCP 

provided its calculations for each relevant period based on an SSA worksheet and in its April 16, 

2018 preliminary overpayment determination. No contrary evidence was provided.

The Board has reviewed OWCP’s calculations of the dual benefits received by appellant 

for the period February 1, 2008 to March 31, 2018 and finds that an overpayment of compensation 

in the amount of $126,789.23 was created.10

 

5 5 U.S.C. § 8102(a). 

6

Id. at § 8129(a). 

7 20 C.F.R. § 10.421(d); see D.W., Docket No. 19-0546 (issued March 4, 2020).

8 FECA Bulletin No. 97-9 (issued February 3, 1997).

9 5 U.S.C. § 8116(d)(2); see L.W., Docket No. 19-0787 (issued October 23, 2019).

10 R.D., Docket No. 19-1598 (issued April 17, 2020).
5

LEGAL PRECEDENT -- ISSUE 2

Section 8129(b) of FECA provides that “[a]djustment 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 this subchapter or would be against 

equity and good conscience.”

11

 On the issue of fault, section 10.433(a) of OWCP’s regulations

provides that an individual is with fault in the creation of an overpayment who: (1) made an 

incorrect statement as to a material fact which the individual knew or should have known to be 

incorrect; (2) failed to furnish information which the individual knew or should have known to be 

material; or (3) with respect to the overpaid individual only, accepted a payment which the 

individual knew or should have been expected to know was incorrect.12

Section 10.433(b) of OWCP’s regulations provides 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.13

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 benefits 

concurrent with disability/wage loss compensation was prohibited.14

OWCP’s procedures in effect at the time of the July 17, 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.15

ANALYSIS -- ISSUE 2

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

creation of the overpayment for the period February 1, 2008 to March 31, 2018.

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

dual benefits scenario, where the claimant receives SSA benefits as part of an annuity under FECA, 

which results 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.16 Because of the complex

 

11 5 U.S.C. § 8129(b).

12 20 C.F.R. § 10.433(a); see J.S., Docket No. 19-0824 (issued October 4, 2019).

13 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).

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

15 Id. at Chapter 6.200.5 (June 2009).

16 Id.
6

nature of SSA benefits administration, appellant could not have been expected to be able to 

calculate the amount of an offset. Therefore, she could not reasonably have been aware during the 

relevant period that her concurrent receipt of SSA age-related retirement benefits constituted an 

actual prohibited dual benefit.17

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.18 The Board finds that appellant was without 

other options to avoid a potential FECA overpayment. Therefore, based on the circumstances 

described, OWCP has not met its burden of proof to establish that she was at fault in the creation 

of the overpayment for the period February 1, 2008 to March 31, 2018.

19

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

2008 to March 31, 2018, the case will be remanded to OWCP to issue a new preliminary 

determination on the issues of waiver and, if warranted, recovery of the overpayment which affords 

her the right to request a prerecoupment hearing on those two issues.

20

CONCLUSION

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

$126,789.23 for the period February 1, 2008 to March 31, 2018. The Board further finds that she

was not at fault in the creation of the overpayment.

21

 

17 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 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).

18 Supra note 13.

19 See E.H., Docket No. 18-1009 (issued January 29, 2019).

20 See 20 C.F.R. §§ 10.431(d) and 10.439.

21 In light of the Board’s finding as to Issue 2, Issues 3 and 4 are rendered moot.
7

ORDER

IT IS HEREBY ORDERED THAT the July 17, 2018 decision of the Office of the 

Workers’ Compensation Programs is affirmed in part and reversed in part and the case is remanded 

for further proceedings consistent with this decision of the Board. The July 5, 2018 decision is set 

aside as moot.

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