United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.M., Appellant

and

U.S. POSTAL SERVICE, WAPPINGERS FALLS 

POST OFFICE, Wappingers Falls, NY, Employer

__________________________________________

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Docket No. 19-1914

Issued: April 9, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 16, 2019 appellant filed a timely appeal from an August 26, 2019 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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.

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an

overpayment of compensation in the amount of $17,634.11 for the period January 1, 2018 through 

March 2, 2019, for which he was not at fault, as he concurrently received FECA wage-loss 

 

1 The Board notes that, following the August 26, 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 5 U.S.C. § 8101 et seq.
2

compensation and Social Security Administration (SSA) age-related retirement benefits without 

an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; 

and (3) whether OWCP properly required recovery of the overpayment by deducting $489.84 

every 28 days from appellant’s continuing compensation payments.

FACTUAL HISTORY

On December 7, 2011 appellant, then a 55-year-old rural letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he injured his lower back when lifting the rear 

cargo door of his truck while in the performance of duty. He stopped work on that date. On 

December 19, 2011 OWCP accepted appellant’s claim for lumbar sprain. On December 13, 2013 

it entered him on the periodic rolls for wage-loss compensation effective January 22, 2012. 

On February 8, 2019 OWCP received a completed Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form from SSA, which reported that appellant had been in 

receipt of SSA age-related retirement benefits since January 2018. The form indicated that 

beginning January 2018 appellant’s SSA benefit rate with FERS was $2,081.10 and without FERS 

was $833.00. The form further indicated that beginning December 2018 his SSA rate with FERS 

was $2,139.30 and without FERS was $856.30.

In a letter dated March 20, 2019, OWCP advised appellant that he had been receiving a 

prohibited dual benefit. It noted that the SSA had confirmed that a portion of his SSA benefits 

were attributed to his years of federal service as an employee under the FERS retirement program 

and that portion required an offset of his FECA compensation benefits. Specifically, OWCP 

indicated:

“According to the Social Security Administration your current monthly benefit 

amount is $2,139.30. However, the Social Security Administration has also 

determined that, if your Federal service was not included in your [S]ocial [S]ecurity 

computation, you would only be entitled to $856.30. Therefore, your Federal 

service has increased your monthly [S]ocial [S]ecurity payment by $1,283.00. This 

difference of $1,283.00 is the portion of [S]ocial [S]ecurity benefit amount 

attributed to Federal services and is the amount that must be offset against your 

compensation benefits.” (Emphasis in the original.)

OWCP further indicated:

“Since [S]ocial [S]ecurity benefits are paid monthly (12 payments per year), and 

compensation benefits are paid every 28 days (13 payments per year), the monthly 

offset amount of $1,283.00 must be adjusted to a 28[-]day payment cycle of 

$1,184.31. Accordingly, the offset of your compensation payments in the amount 

of $184.3[0] will begin with your payment dated 03/30/2019. Your new net 

compensation payment will be $1,509.59.”

On May 22, 2019 OWCP issued a preliminary overpayment determination notifying

appellant that he had received an overpayment of compensation in the amount of $17,634.11 

because he received FECA wage-loss compensation benefits concurrently with SSA age-related 
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retirement benefits for the period January 1, 2018 through March 2, 2019, without an appropriate 

offset. It explained that it had calculated the overpayment of compensation by determining the 

difference between his SSA amount with and without FERS for each period, and then multiplying 

that amount by the number of days in each period. The FERS offset calculation worksheet 

indicated that OWCP had utilized a 28-day FERS offset amount of $1,152.09 from January 1

through November 30, 2018, and $1,184.31 from December 1, 2018 through March 2, 2019. 

Using these figures, OWCP calculated that the total overpayment amount was $17,634.11. It 

further found that appellant was without fault in the creation of the overpayment. OWCP requested 

that he complete an 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 final decision based on the written record or request a 

prerecoupment hearing.

In an overpayment action request form dated June 4, 2019, appellant requested that OWCP 

make a decision based on the written evidence, disagreed with the amount of the overpayment, 

and requested waiver as he was found without fault. At the bottom of the form appellant indicated 

that he received $1,595.00 per month from SSA, not $2,139.30. In support of his contention, 

appellant submitted a May 22, 2019 letter from SSA indicating that, beginning December 2018, 

his full monthly SSA benefit before any deduction was $1,595.50, and that, because SSA must 

round down to the whole dollar, appellant’s regular monthly SSA payment was $1,595.00. 

In a completed Form OWCP-20 dated June 9, 2019, appellant indicated that he had total 

monthly income of $11,895.00 including his spouse’s income of $9,800.00, SSA benefits of 

$1,595.00, and Department of Veterans Affairs (VA) benefits of $500.00. He listed monthly 

expenses of $10,745.00, including property tax of $1,250.00, food for $1,000.00, utilities in the 

amount of $1,000.00, miscellaneous expenses of $1,000.00, and clothing for $500.00, as well as 

college expenses for his children in the amounts of $5,995.00. Appellant indicated that he had 

available funds of $4,725.57. He provided financial information including a portion of his 2018 

federal income tax return, credit card statements, bank account balances, and tuition bills for his 

two children.

On August 26, 2019 OWCP considered the financial information that appellant provided 

and completed a worksheet listing his total income of $13,405.19, which included $1,595.50 in 

SSA benefits, his spouse’s income of $9,800.00, FECA benefits of $1,509.69, as well as VA

benefits of $500.00. It subtracted his total expenses and determined that he had a monthly excess 

of more than $2,000.00.

By decision dated August 26, 2019, OWCP finalized the preliminary overpayment 

determination that appellant had received an overpayment of compensation in the amount of 

$17,634.11 for the period January 1, 2018 through March 2, 2019 as he had received wage-loss 

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

attributable to FERS. It noted his contention that an incorrect SSA rate was used in the 

overpayment calculations. OWCP determined, however, that “the amounts of $2,081[.00] and 

$2,139.30 [are] your FERS amounts. These amounts are not your monthly SSA benefit, but rather 

the amounts that are offset by your workers’ compensation benefits due to your work in Federal 

service.” It found that appellant was without fault in the creation of the overpayment. OWCP 

denied waiver of recovery of the overpayment as there was no evidence that recovery would defeat 
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the purpose of FECA, finding he currently had approximately $2,000.00 income over debt each 

month, which exceeded the statutory amount of $50.00 and therefore was not against equity and 

good conscience. It directed recovery of the overpayment by deducting $489.84 every 28 days

from his continuing compensation benefits.

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.3 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.4

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.5 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.6

ANALYSIS -- ISSUE 1

The Board finds that fact of overpayment has been established. 

The evidence of record indicates that, while appellant was receiving wage-loss 

compensation benefits under FECA, he was also receiving SSA age-related retirement benefits 

based upon his federal service. As noted above, a claimant cannot receive both FECA 

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

for the same period.7 The information provided by SSA indicated that appellant received SSA 

age-related retirement benefits that were attributable to federal service during the period January 1, 

2018 through March 2, 2019. Consequently, the fact of overpayment has been established.

The Board further finds, however, 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 

 

3

Id. at § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued 

August 20, 2018).

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

7 5 U.S.C. § 8116(d)(2); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued 

May 17, 2019).
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of fact and provide a statement of reasons.8 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.9 Although the record establishes that appellant received SSA 

age-related retirement benefits which were attributable to his federal service, it is not clear how 

the amount of the overpayment was derived. 

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 SSA age-related retirement benefits that were attributable to 

federal service. SSA provided the SSA rates with FERS and without FERS for the period

January 1, 2018 through March 2, 2019. OWCP provided its calculations for each relevant period 

based on SSA’s worksheet and determined that appellant received an overpayment of 

compensation in the amount of $17,634.11. However, appellant submitted documentation from 

the SSA indicating that his actual SSA benefit amount differed from the amounts shown on the 

SSA/FERS dual benefits calculation form. While OWCP offered an “explanation” for the 

discrepancy in the SSA benefit figures used in its calculations, that explanation did insufficiently 

clarify the discrepancy and contained no supporting citations to legal authority. Additionally, that 

explanation differs from statements made in OWCP’s March 20, 2019 letter to appellant.

For these reasons, the Board finds that the record does not support that the overpayment 

was calculated correctly for the period January 1, 2018 through March 2, 2019. Accordingly, the 

Board finds that the case must be remanded to OWCP. On remand OWCP shall clarify the 

discrepancy between the figures provided by SSA to OWCP and appellant. It shall then determine 

the amount of the overpayment of compensation and issue a new preliminary overpayment 

determination. Following this, and other such further development as deemed necessary, OWCP 

shall issue a de novo decision.10

CONCLUSION

The Board finds that fact of overpayment has been established. The Board further finds 

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

 

8 5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or 

against payment of compensation. 20 C.F.R. § 10.126 provides that OWCP’s final decision shall contain findings of 

fact and a statement of reasons. See also H.B., Docket No. 19-0356 (issued March 20, 2020).

9

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

10 In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.
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ORDER

IT IS HEREBY ORDERED THAT the August 26, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. This case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: April 9, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board