United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Newark, OH, Employer

__________________________________________

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Docket No. 19-0757

Issued: April 16, 2021

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 22, 2019 appellant filed a timely appeal from a January 17, 2019 merit 

decision 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 over the merits of this case.2

ISSUES

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

amount of $44,476.90 for the period July 1, 2014 through October 14, 2017 because she 

concurrently received FECA wage-loss compensation and Social Security Administration (SSA) 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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

age-related retirement benefits without an appropriate offset; (2) whether OWCP properly found 

appellant at fault in the creation of the overpayment, thereby precluding waiver of recovery of the 

overpayment; and (3) whether it properly required recovery of the overpayment by deducting 

$34.07 every 28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On October 7, 1998 appellant, then a 50-year-old rural mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 1, 1998 she injured her back while bending down to 

pick up a tray of mail while in the performance of duty. OWCP accepted the claim for lumbar 

sacral strain with radiculopathy and a herniated disc at L5-S1. Appellant stopped work on June 4, 

1999 and underwent an OWCP-authorized decompression, laminectomy, and discectomy at L4-5. 

On May 7, 2002 OWCP notified appellant of her placement on the periodic rolls, effective 

April 21, 2002. It advised her to report any retirement income she received from any federal 

agency, including benefits received under the Federal Employees Retirement System (FERS). 

OWCP noted that “If you are covered under FERS, OWCP must deduct from your compensation 

entitlement at least part of any Social Security Retirement benefits to which you are entitled based 

on age. This is because a portion of FERS benefits is included in Social Security retirement 

benefits.” By her signature dated May 14, 2002, appellant acknowledged the terms and conditions 

under which she could receive compensation. 

Appellant returned to part-time limited-duty work on September 21, 2004 and worked in a 

part-time capacity until her retirement, effective October 31, 2009. OWCP paid her wage-loss 

compensation on the periodic rolls.3

In an April 27, 2010 letter, OWCP issued an election letter to appellant advising her that 

she was not entitled to concurrently receive both FECA wage-loss compensation and Office 

Personnel Management retirement benefits and that she must elect which benefit to receive. It 

also advised her that “FECA benefits will be reduced by the Social Security Act benefits paid on 

the basis of age and attributable to your federal service.” In a June 1, 2010 letter, OWCP advised 

appellant that compensation benefits would be reduced if she began receiving SSA retirement 

benefits based upon her age and federal service. It noted that failure to report receipt of such 

retirement benefits could result in an overpayment of compensation which could be subject to 

recovery. In a June 7, 2012 letter, OWCP again advised appellant that FECA benefits would be 

reduced by SSA benefits paid on the basis of age and federal service. 

On August 24, 2017 OWCP requested that SSA provide information regarding appellant’s 

retirement benefits based upon age and federal service. On October 4, 2017 SSA provided OWCP 

with a FERS/SSA dual benefit calculation worksheet setting forth her SSA rates with FERS and 

without FERS from July 2014 through December 2016. The SSA rates with FERS/without FERS 

were reported as: $1,191.60/$86.50 for July 1, 2014; $1,211.80/$87.90 for December 1, 2014; 

$1,211.80/$87.90 for December 1, 2015; and $1,215.40/$88.10 for December 1, 2016.

 

3 Appellant continued to receive partial disability wage-loss compensation based upon her loss of wage-earning 

capacity.
3

Effective October 15, 2017, OWCP offset appellant’s FECA benefits by the amount of her 

SSA age-related retirement benefits attributable to her federal employment under FERS. 

OWCP also calculated an overpayment amount of $44,476.90 for the period covering 

July 1, 2014 through October 14, 2017. It found an overpayment of $5,574.08 resulted for the 

period July 1 to November 30, 2014; $13,523.85 for the period December 1 to November 30, 

2015; $13,560.90 for the period December 1, 2015 to November 30, 2016; and $11,818.07 for the 

period December 1, 2016 to October 14, 2017. The overpayment was determined by subtracting 

the SSA rate without FERS from the SSA rate with FERS to get the monthly FERS offset amount, 

which it then converted to the 28-day offset amount to be deducted from the periodic rolls

payments based on the number of days in each corresponding period. 

In a preliminary overpayment determination dated October 30, 2017, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $44,476.90 for 

the period July 1, 2014 through October 14, 2017 because it had failed to reduce her wage-loss 

compensation by the portion of her SSA age-related retirement benefits that were attributable to 

her federal service. It further advised her of its preliminary overpayment determination that she 

was without fault in the creation of the overpayment because she was not aware nor could she have 

been reasonably expected to know that OWCP had incorrectly paid compensation. 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.

Appellant subsequently submitted a completed Form OWCP-20 dated November 8, 2017. 

She indicated that, after she retired, she used her savings to pay down her bills. Appellant indicated 

that she was living month-to-month and still trying to pay off her bills. 

On March 6, 2018 OWCP issued two new preliminary overpayment determinations which 

superseded the initial October 30, 2017 preliminary overpayment determination. It made a 

preliminary overpayment determination that appellant was overpaid in the amount of $28,027.37 

for the period July 1, 2014 through July 28, 2016 because her FECA compensation was not 

reduced by the FERS portion of her SSA age-related retirement benefits. OWCP found that she 

was without fault in the creation of this overpayment. It also made a preliminary overpayment 

determination that appellant was overpaid in the amount of $16,449.52 from July 29, 2016 to 

October 14, 2017 because she also received FECA benefits that were not reduced by the FERS 

portion of her SSA age-related retirement benefits. OWCP found that she was with fault in the 

creation of the $16,449.52 as she knowingly accepted payments which she knew or reasonably 

should have known to be incorrect. It provided appellant with an overpayment action request form 

and a Form OWCP-20 for her completion. 

On March 27, 2018 appellant, through counsel, requested a prerecoupment hearing on the 

March 6, 2018 preliminary overpayment determinations before a representative of OWCP’s 

Branch of Hearings and Review. 

By decision dated July 24, 2018, an OWCP hearing representative conducted a preliminary 

review and found that the case was not in posture for a hearing. She found that appellant had 
4

received a $44,476.90 overpayment of compensation as she concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation for the period July 1, 2014 to October 14, 

2017 without an appropriate offset. The hearing representative remanded the case for a proper 

analysis on the issue of fault for the period July 1, 2014 to July 28, 2016. 

In a September 13, 2018 preliminary overpayment determination, OWCP found that 

appellant received an overpayment of compensation in the amount of $28,027.37 for the period 

July 1, 2014 through July 28, 2016, for which she was with fault, because she concurrently 

received SSA age-related retirement benefits and FECA wage-loss compensation without an 

appropriate offset. It advised that she was provided notice on three separate occasions that her 

SSA age-related retirement benefits attributable to FERS were subject to offset and she had 

displayed her understanding of the subject when she completed her EN1032 forms. Thus, OWCP

found that appellant knowingly accepted compensation to which she was not entitled. It provided 

her with a new Form OWCP-20.

By decision dated January 17, 2019, OWCP finalized its March 6 and September 13, 2018 

preliminary overpayment determinations, finding an overpayment of compensation in the amount 

of $44,476.80 for the period July 1, 2014 through October 14, 2017 as appellant had received 

wage-loss compensation from OWCP without an appropriate offset for age-related SSA benefits 

attributable to FERS. It further found that she was at fault in the creation of the overpayment and 

thereby precluded from waiver of recovery of the overpayment. OWCP further determined that 

the overpayment would be recovered by withholding $34.07 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 

performance of his or her duty.4 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.5

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.6 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 

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6 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).
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federal employee is part of the FERS retirement package, and the receipt of FECA benefits and 

federal retirement concurrently is a prohibited dual benefit.7

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $44,476.90 for the period July 1, 2014 through October 14, 2017 

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

benefits.

OWCP paid appellant appropriate wage-loss compensation for total disability following 

her injury. It subsequently paid her wage-loss compensation for partial disability after her return 

to work. Beginning July 1, 2014, 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.8 The information provided by SSA 

indicated that a portion of appellant’s SSA age-related retirement benefits were attributable to her 

federal service. As OWCP neglected to offset her FECA benefits for the period July 1, 2014 

through October 14, 2017, she received an overpayment of wage-loss compensation.9

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

by determining the portion of SSA age-related retirement benefits that were attributable to 

appellant’s federal service. It received documentation from SSA with respect to the specific 

amount of SSA age-related retirement benefits that were attributable to federal service. SSA 

provided appellant’s SSA rate with FERS and without FERS for specific periods beginning 

July 1, 2014.10 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 

$44,476.90 creating an overpayment of compensation in that amount. 

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.”

11

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

 

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

8 Supra note 7; V.B., Docket No. 19-1082 (issued October 29, 2019); A.C., Docket No. 18-1550 (issued 

February 21, 2019).

9

Id.

10 SSA’s worksheet provided applicable rates effective the following dates: July 1 to November 30, 2014; 

December 1 to November 30, 2015; December 1, 2015 to November 30, 2016; and December 1, 2016 to 

October 14, 2017. 

11 5 U.S.C. § 8129(b).
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waiver.12 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.13

With respect to whether an individual is with 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.14

ANALYSIS -- ISSUE 2

The Board finds that OWCP has not met its burden of proof to establish that appellant was 

at fault in the creation of the overpayment for the period July 1, 2014 through October 14, 2017. 

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

dual benefits scenario, where the claimant receives SSA age-related retirement benefits as part of 

an annuity and wage-loss compensation under FECA, resulting 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.15 Because of the complex 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 benefits constituted an actual prohibited dual benefit.16

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.17 Therefore, based on the circumstances 

described, the Board finds that OWCP has not met its burden of proof to establish that appellant 

 

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

13 20 C.F.R. § 10.433(a).

14 Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

15 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Fault Determinations, Chapter 6.300.4g(4) 

(September 2018).

16 H.H., Docket No. 18-0674 (issued September 3, 2020); G.G., Docket No. 19-0684 (issued December 23, 2019) 

(The Board affirmed OWCP’s finding that, due to the complexity of SSA age-related retirement 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.).

17 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).
7

was at fault in the creation of the overpayment for the period July 1, 2014 through 

October 14, 2017.

As the Board finds that appellant was not at fault in the creation of the overpayment for the 

period July 1, 2014 through October 14, 2017, the case will be remanded to OWCP to consider the 

issue of waiver of recovery of the overpayment.18

CONCLUSION

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

$44,476.90 for the period July 1, 2014 through October 14, 2017 because she concurrently 

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

further finds that she was not at 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.

ORDER

IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of 

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

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

Issued: April 16, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

18 In light of the Board’s disposition of issue 2, issue 3 is rendered moot.