United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Berkeley, CA, Employer

__________________________________________

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Docket No. 19-1164

Issued: March 16, 2021

Appearances: Case Submitted on the Record

Josefino C. Aguilar, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 30, 2019 appellant, through his representative, filed a timely appeal from an 

April 8, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

 

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 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, by order dated July 21, 2020, the Board denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 19-1164 (issued July 21, 2020).
2

Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.4

ISSUES

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

amount of $20,030.86, for the period June 1, 2017 through February 2, 2019, because he 

concurrently received Social Security Administration (SSA) age-related retirement benefits and 

FECA wage-loss compensation for this period without appropriate offset; (2) whether OWCP 

properly determined that appellant was at fault in the creation of the overpayment, thereby 

precluding waiver of recovery of the overpayment; and (3) whether OWCP properly required 

recovery of the overpayment by deducting $393.11 from appellant’s compensation payments every 

28 days.

FACTUAL HISTORY

On May 27, 2011 appellant, then a 59-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging injury due to twisting his left arm in an attempt to catch a falling mail tray 

while in the performance of duty. OWCP accepted his claim for sprains of the left elbow/forearm, 

left shoulder/upper arm (including rotator cuff), and left biceps. It paid appellant wage-loss 

compensation for disability from work on the supplemental rolls commencing September 10, 2011 

and on the periodic rolls commencing September 25, 2011. 

In a September 29, 2011 letter, OWCP advised appellant that he had been placed on the 

periodic rolls, effective September 25, 2011. It informed him that, if he was covered under the 

Federal Employees’ Retirement System (FERS), it was possible that he could receive a prohibited 

dual benefit upon future receipt of Social Security Administration (SSA) age-related retirement 

benefits. In a June 10, 2013 letter, OWCP advised appellant that section 8116(d)(2) of FECA 

required that a claimant’s continuing FECA compensation be reduced if he or she received SSA

age-related retirement benefits based on age or federal service. 

OWCP periodically required appellant to complete EN1032 forms, which contained 

language advising him what types of employment activities and earnings that he was required to 

report for each 15-month period prior to the time he signed each form. 

On January 24, 2019 OWCP received a FERS/SSA dual benefits calculation form 

completed by an SSA official on January 11, 2019. The form provided SSA benefit rates with a 

FERS offset and without a FERS offset for the period June 1, 2017 through December 2018. The 

form indicated that beginning June 1, 2017, the SSA rate with FERS was $1,733.00 and without 

FERS was $757.00; beginning December 1, 2017, the SSA rate with FERS was $1,768.00 and 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that following the April 8, 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.
3

without FERS was $772.10; and beginning December 1, 2018 the SSA rate with FERS was 

$1,817.00 and without FERS was $793.70.

OWCP completed a FERS offset calculation worksheet on February 21, 2019. It calculated 

the overpayment amount by determining the daily FERS offset amount and multiplying that 

amount by the number of days in each period from June 1, 2017 through February 2, 2019 for a 

total overpayment amount of $20,030.86. OWCP determined that during the period June 1 through 

November 30, 2017 appellant received an overpayment of $5,888.18; during the period 

December 1, 2017 through November 30, 2018 he received an overpayment of $11,983.63, and 

during the period December 1, 2018 through February 2, 2019 he received an overpayment of 

$2,159.05.

In a preliminary overpayment determination dated February 28, 2019, OWCP notified 

appellant that he received an overpayment of compensation in the amount of $20,030.86, for the 

period June 1, 2017 through February 2, 2019, because he received SSA age-related retirement 

benefits based on his age and attributable to his federal service, without an offset being made, 

while he received FECA compensation benefits. It also made a preliminary determination that 

appellant was at fault in the creation of the overpayment because he accepted payments he knew, 

or reasonably should have known, to be incorrect.5 OWCP advised him that he could submit 

evidence challenging the fact, amount, or finding of fault, and request waiver of the overpayment. 

It informed appellant that he could submit additional evidence in writing or at prerecoupment 

hearing, but that a prerecoupment hearing must be requested within 30 days of the date of the 

written notice of the overpayment. OWCP requested that appellant complete and return an 

enclosed financial information questionnaire (Form OWCP-20) within 30 days even if he was not 

requesting waiver of the overpayment.

In an overpayment action request form, signed on March 18, 2019, appellant indicated that 

he disagreed that the claimed overpayment occurred. In March 18 and 26, 2019 statements, he 

challenged OWCP’s preliminary overpayment determination and asserted that SSA never advised 

him that his SSA age-related retirement benefits would be “combined” with FERS.6 No additional 

evidence, including a completed Form OWCP-20, was received.

By decision dated April 8, 2019, OWCP finalized the preliminary overpayment 

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

of $20,030.86, for the period June 1, 2017 through February 2, 2019, because he received SSA 

age-related retirement benefits based on his age and attributable to his federal service, without an 

offset being made, while he received FECA compensation benefits. It found that appellant was at 

fault in the creation of the overpayment because he accepted payments he knew, or reasonably 

should have known, to be incorrect.7 OWCP determined that, therefore, waiver of recovery of the 

 

5 OWCP asserted that appellant misrepresented the type of SSA benefits he received as not being age related.

6 Appellant submitted several documents from SSA and OPM that were previously of record. He also submitted a 

June 1, 2017 SSA document informing him that he would receive SSA age-related retirement benefits effective 

June 1, 2017.

7 OWCP also briefly discussed appellant’s completion of EN1032 forms and generally noted without elaboration, 

“You made an incorrect statement as to a material fact which you knew or should have known to be incorrect.”
4

overpayment was precluded. It required repayment of the overpayment by deducting $393.11 

from appellant’s continuing compensation payments 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 

performance of his or her duty.8 However, 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.9

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.10 FECA Bulletin No. 97-09 provides that FECA 

benefits have to be adjusted for the FERS portion of SSA age-related retirement 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.11

ANALYSIS -- ISSUE 1

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

$20,030.86, for the period June 1, 2017 through February 2, 2019, because he concurrently 

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

an appropriate offset.12

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 explained, a claimant cannot receive both wage-loss 

compensation benefits under FECA and SSA age-related retirement benefits attributable to federal 

service for the same period.13 The information provided by SSA established that appellant 

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

period while he was receiving wage-loss compensation on the periodic rolls. Consequently, the 

fact of overpayment has been established.

To determine the amount of the overpayment, the portion of SSA’s benefits that were 

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

 

8 5 U.S.C. § 8102.

9

Id. at § 8116.

10 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

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

12 E.L., Docket No. 20-0723 (issued October 15, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020); A.F., 

Docket No. 19-0054 (issued June 12, 2019).

13 E.L., id.
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respect to the specific amount of SSA age-related retirement benefits that were attributable to 

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

June 1, 2017 through February 2, 2019. OWCP properly calculated the amount that it should have 

offset during the relevant period based on SSA’s documentation.

The Board thus finds that an overpayment of compensation in the amount of $20,030.86 

was created.

14

On appeal appellant’s representative suggests that appellant did not receive an 

overpayment of compensation because he did not receive SSA age-related retirement benefits as 

part of an annuity for federal service. However, as explained above, the evidence of record 

demonstrates that appellant did in fact receive SSA age-related retirement benefits as part of an 

annuity for federal service for the period June 1, 2017 through February 2, 2019.

LEGAL PRECEDENT -- ISSUE 2

Section 8129(a) of FECA provides that an overpayment of compensation shall be 

recovered by OWCP unless incorrect payment has been made to an individual who is without fault 

and when adjustment or recovery would defeat the purpose of FECA or be against equity and good 

conscience.15 No waiver of payment is possible if appellant is with fault in helping to create the 

overpayment.16

Section 10.433(a) of OWCP’s regulations provides that OWCP:

“[M]ay consider waiving an overpayment of compensation only if the individual to 

whom it was made was not at fault in accepting or creating the overpayment. Each 

recipient of compensation benefits is responsible for taking all reasonable measures 

to ensure that payments he or she receives from OWCP are proper. The recipient 

must show good faith and exercise a high degree of care in reporting events which 

may affect entitlement to or the amount of benefit.... A recipient who has done 

any of the following will be found to be at fault in creating an overpayment:

(1) Made an incorrect statement as to a material fact which he or she 

knew or should have known to be incorrect; or

(2) Failed to provide information which he or she knew or should 

have known to be material; or

 

14 See E.L., id.; L.W., Docket No. 19-0787 (issued October 23, 2019); L.L., Docket No. 18-1103 (issued 

March 5, 2019). 

15 5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017).

16 J.S., Docket No. 19-1363 (issued April 10, 2020); Robert W. O’Brien, 36 ECAB 541, 547 (1985).
6

(3) Accepted a payment which he or she knew or should have known 

to be incorrect. (This provision applies only to the overpaid 

individual.)17

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

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 age-related 

retirement benefits concurrent with disability/wage-loss compensation was prohibited.19

OWCP’s procedures in effect at the time of the April 8, 2019 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.20

ANALYSIS -- ISSUE 2 

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

creation of the overpayment of compensation.

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.21 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, he could not reasonably have been aware during the 

 

17 20 C.F.R. § 10.433(a); see C.Y., Docket No. 18-0263 (issued September 14, 2018); see also 20 C.F.R. § 10.430.

18 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).

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

20 Id. at Chapter 6.300.4(c) (September 2018).

21 Id.
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relevant period that his concurrent receipt of SSA age-related retirement benefits constituted an 

actual prohibited dual benefit.22

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.23 Therefore, based on the circumstances 

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

of the overpayment for the period June 1, 2017 through February 2, 2019.

As appellant was not at fault in the creation of the overpayment for the period June 1, 2017 

through February 2, 2019, 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 

him the right to request a prerecoupment hearing on those two issues.24

CONCLUSION

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

$20,030.86, for the period June 1, 2017 through February 2, 2019, because he concurrently 

received SSA age-related retirement benefits and FECA wage-loss compensation for this period 

without appropriate offset. The Board further finds however, that OWCP improperly determined 

that appellant was at fault in the creation of the overpayment of compensation.

 

22 R.B., Docket No. 19-0023 (issued September 3, 2020) (issued December 23, 2019) (OWCP found that appellant 

was without fault in the creation of an overpayment caused by dual receipt of SSA age-related retirement benefits and 

FECA wage-loss compensation because he could not have known the amount of offset to be applied to his wage-loss 

compensation payments). See also 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).

23 Supra note 21.

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

IT IS HEREBY ORDERED THAT the April 8, 2019 decision of the Office of Workers’

Compensation Programs is affirmed in part and reversed in part.

Issued: March 16, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board