United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.K., Appellant

and

U.S. POSTAL SERVICE, OAK PARK 

STATION, Sacramento, CA, Employer

__________________________________________

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Docket No. 19-0713

Issued: October 20, 2020

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 19, 2019 appellant filed a timely appeal from a December 14, 2018 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.3

 

1 Appellant timely requested oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). By order dated 

July 17, 2020, the Board exercised its discretion and denied the request as the matter could be adequately addressed 

based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 19-0713 (issued 

July 17, 2020).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the issuance of the December 14, 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.
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ISSUES

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

amount of $136,711.48 for the period September 1, 2006 through October 13, 2018, for which she 

was without fault, because she concurrently received FECA wage-loss 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 $125.00 from appellant’s 

continuing compensation payments every 28 days. 

FACTUAL HISTORY

On February 3, 2005 appellant, then a 61-year-old modified window clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on January 31, 2005 she developed post-traumatic stress 

disorder (PTSD) when she was robbed at gunpoint while in the performance of duty. OWCP 

accepted her claim for PTSD. Appellant stopped work on February 1, 2005 and returned to fulltime modified-duty work on May 31, 2005. She stopped work again on May 11, 2006 and OWCP 

paid her wage-loss compensation on the periodic rolls, effective August 6, 2006. 

On December 14, 2006 OWCP received a Request for Withdrawal of Application form 

from SSA dated November 30, 2006. Appellant explained that her reason for withdrawing her 

application was because her SSA benefits would be deducted from her workers’ compensation 

benefits. She noted that she chose not to receive any benefits from SSA and would repay the 

benefits she had received for October to November 2006. Appellant submitted a receipt from SSA 

of a payment that she had made on November 30, 2006 in the amount of $1,730.00.

In a Form CA-1032 dated December 4, 2006, appellant responded “Yes” indicating that 

she had received retirement benefits from SSA as part of an annuity for federal service.

By decision dated June 4, 2007, OWCP advised appellant that it was reducing her wageloss compensation benefits pursuant to 5 U.S.C. § 8113(b) because she had failed, without good 

cause, to undergo vocational rehabilitation as directed. It noted that her compensation would be 

reduced to reflect what would have been her wage-earning capacity had she cooperated with the 

vocational rehabilitation efforts of OWCP.

In a letter dated August 9, 2007, C.M., an employing establishment injury compensation 

specialist, informed OWCP that appellant had been approved for retirement, effective 

August 31, 2007. She requested that OWCP provide appellant with an election form. 

In a letter dated September 5, 2007, OWCP advised appellant that her Federal Employees 

Retirement System (FERS) benefits would be reduced by the amount of SSA benefits that she 

received based on her age that were attributable to her federal service. It provided her with an 

election form. 

Appellant continued to complete CA-1032 forms dated November 25, 2007, January 7, 

2008, December 3, 2009, December 11, 2010, January 9 and December 3, 2012, December 12, 

2013, January 25 and November 30, 2015, December 20, 2016, and December 5, 2017. She 
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responded “Yes” indicating that she received retirement benefits from SSA as part of an annuity 

for federal service.

On October 18, 2018 an SSA representative provided OWCP with a FERS/SSA dual 

benefit calculation worksheet. The SSA representative provided corresponding monthly SSA 

benefits rates beginning September 2006 with and without appellant’s FERS contributions. The 

form indicated that beginning September 1, 2006, appellant’s SSA rate with FERS was $865.50 

and without FERS was $63.00; that beginning December 1, 2006, her SSA rate with FERS was 

$894.00 and without FERS was $65.00; that beginning January 1, 2007, her SSA rate with FERS 

was $905.50 and without FERS was $65.00; that beginning December 1, 2007, her SSA rate with 

FERS was $926.40 and without FERS was $66.50; that beginning December 1, 2008, her SSA 

rate with FERS was $980.00 and without FERS was $70.30; that beginning December 1, 2011, 

her SSA rate with FERS $1,015.30 and without FERS was $72.70; that beginning December 1, 

2012, her SSA rate with FERS $1,032.50 and without FERS was $73.90; that beginning 

December 1, 2013, her SSA rate with FERS $1,048.00 and without FERS was $75.00; that 

beginning December 1, 2014, her SSA rate with FERS was $1,065.80 and without FERS was 

$76.30; that beginning December 1, 2016, her SSA rate with FERS was $1,068.90 and without 

FERS was $76.40; and that beginning December 1, 2017, her SSA rate with FERS was $1,090.30 

and without FERS was $77.90. 

Effective October 14, 2018, OWCP paid appellant at the adjusted amount of $257.14 to 

include the offset of her SSA age-related retirement benefits attributable to her federal service. 

By letter dated October 24, 2018, OWCP advised appellant that it was adjusting her 

compensation to offset the portion of her SSA age-related retirement benefits attributable to her 

federal service. It informed her that she would receive net compensation of $257.14 every 28 days.

OWCP completed a FERS offset calculation worksheet on October 24, 2018. 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 September 1, 2006 through October 31, 2018 

for a total overpayment amount of $136,711.48.

In a preliminary overpayment determination dated November 2, 2018, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $136,711.48 

because it had failed to reduce her wage-loss compensation benefits for the period September 1, 

2006 through October 13, 2018 by the portion of her SSA benefits that were attributable to federal 

service. It further advised her of its preliminary determination that she was not at fault in the 

creation of the overpayment because she could not have reasonably known that an improper 

payment had occurred. OWCP provided appellant 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. No response was received.

By decision dated December 14, 2018, OWCP finalized the preliminary overpayment 

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

of $136,711.48 for the period September 1, 2006 through October 13, 2018 because she received 

SSA benefits in addition to her wage-loss compensation benefits under FECA without an 
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appropriate offset. It also found that appellant was without fault in the creation of the overpayment, 

but denied waiver of recovery of the overpayment because she had not completed and returned 

OWCP’s Form OWCP-20. OWCP determined that recovery of the overpayment would require 

deducting $125.00 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 that OWCP reduce the 

amount of compensation by the amount of any SSA age-related retirement benefits that are 

attributable to the employee’s federal service.6 FECA Bulletin No. 97-09 states 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.7

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation because she 

concurrently received FECA benefits and SSA age-related retirement benefits without an 

appropriate offset, and accordingly, fact of overpayment has been established. Appellant 

completed CA-1032 forms dated December 4, 2006 to December 5, 2017 and responded “Yes”

indicating that she had received retirement benefits from SSA as part of an annuity for federal 

service. As noted, a claimant cannot receive concurrent FECA compensation for wage-loss and 

SSA age-related retirement benefits attributable to federal service.8 The evidence of record has 

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

her own federal service during a period of time that she received FECA wage-loss compensation. 

The Board finds that fact of overpayment, therefore, is established.

The Board further finds, however, that this case is not in posture for decision regarding the 

amount of the overpayment. 

The evidence of record does not contain evidence to support a finding that appellant was 

in receipt of SSA benefits beginning September 1, 2006. According to the November 2, 2018 

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018); L.J., 59 ECAB 264 (2007).

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

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Id. See also A.C., Docket No. 18-1550 (issued February 21, 2019).
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preliminary overpayment determination, OWCP premised its finding of an overpayment on the 

October 18, 2018 letter that it had received from the SSA regarding appellant’s age-related 

retirement benefits for the period September 1, 2006 through October 13, 2018. The Board finds, 

however, that the October 18, 2018 letter alone does not establish that appellant was in receipt of

SSA/FERS benefits, effective September 1, 2006.

9

 OWCP received a Request for Withdrawal of 

Application form from SSA dated November 30, 2006, which noted that appellant was 

withdrawing her application for SSA. Appellant submitted a receipt from SSA of a payment that 

she had made on November 30, 2006 in the amount of $1,730.00, purportedly covering the period 

October to November 2006. She also completed CA-1032 forms dated December 3, 2006 to 

December 5, 2017 and indicated that she was in receipt of SSA retirement benefits. The evidence 

of record further includes a letter dated August 9, 2007 from the employing establishment, which 

informed OWCP that appellant had been approved for retirement, effective August 31, 2007. 

Given the conflicting information of record regarding when appellant began to receive SSA agerelated retirement benefits, the case must be remanded to OWCP for further development of the 

factual evidence. 

On remand OWCP shall consult with OPM and SSA in order to determine the exact amount 

of the overpayment of compensation and the correct dates during which the overpayment 

occurred.10 It shall then issue a new preliminary overpayment determination, with an overpayment 

action request form, an overpayment recovery questionnaire, and instructions for appellant to 

provide supporting financial information. After this and other such further development as deemed 

necessary, it shall issue a de novo decision.11

CONCLUSION

The Board finds that, although fact of the overpayment for which appellant was not at fault 

has been established, the case is not in posture for decision regarding the amount and period(s) of 

the overpayment.

 

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

10 See J.H., Docket No. 19-1887 (issued June 16, 2020).

11 In light of the Board’s disposition of issue 1, the issues of waiver and recovery of the overpayment are rendered 

moot.
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ORDER

IT IS HEREBY ORDERED THAT the December 14, 2018 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: October 20, 2020

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