United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.R., Appellant

and

DEPARTMENT OF THE TREASURY, OFFICE 

OF THRIFT SUPERVISION, Atlanta, GA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0159

Issued: August 6, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On November 9, 2020 appellant filed a timely appeal from a June 30, 2020 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

docketed the appeal as No. 21-0159.1

On July 24, 1992 appellant, then a 49-year-old receptionist, filed a traumatic injury claim

(Form CA-1) alleging that on July 17, 1992 she experienced sharp pain in her lower back, left arm, 

right hand, right foot, and both legs when the elevator that she was on suddenly dropped 51⁄2 to 6 

feet while in the performance of duty, and she had to climb out. She stopped work on 

July 20, 1992. OWCP accepted appellant’s claim for lumbar and cervical strains. It subsequently 

expanded acceptance of her claim to include displacement of cervical intervertebral disc without 

myelopathy, displacement of lumbar intervertebral disc without myelopathy, and major 

depression. OWCP paid appellant wage-loss compensation on the supplemental rolls, effective 

January 10, 1993, and placed her on the periodic rolls, effective June 16, 2002. 

 

1 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

A notification of personnel action form (SF-50), dated September 18, 1994, indicated that 

appellant’s retirement plan was under Federal Insurance Contributions Act (FICA) and Federal 

Employees Retirement System (FERS) with a computation date of January 16, 1990.

On April 11, 2019 OWCP provided SSA with a FERS/SSA dual benefits calculation form. 

It listed the computation period as July 17, 1992 to the present.

On April 19, 2019 an SSA representative completed the dual benefits calculation form. 

The SSA representative provided corresponding monthly SSA benefits rates beginning 

February 2009 with and without appellant’s FERS contributions. The form indicated that: 

beginning February 2009, appellant’s SSA rate with FERS was $1,000.20 and without FERS was 

$744.00; beginning December 2011, appellant’s SSA rate with FERS was $1,036.20 and without 

FERS was $770.70; beginning December 2012, appellant’s SSA rate with FERS was $1,053.80 

and without FERS was $783.80; beginning December 2013, appellant’s SSA rate with FERS was 

$1,069.50 and without FERS was $795.50; beginning December 2014, appellant’s SSA rate with 

FERS was $1,087.70 and without FERS was $809.00; beginning December 2016, appellant’s SSA 

rate with FERS was $1,090.90 and without FERS was $811.40; beginning December 2017, 

appellant’s SSA rate with FERS was $1,112.70 and without FERS was $827.60; and beginning 

December 2018, appellant’s SSA rate with FERS was $1,143.90 and without FERS was $850.70.

In a letter dated August 5, 2019, OWCP notified appellant that, based on information 

provided by SSA regarding the amount of her age-related retirement benefits, which was partially 

attributable to federal service, her FECA wage-loss compensation had been adjusted. It explained 

that she was in receipt of SSA age-related retirement benefits every four weeks amounting to 

$1,143.90. However, appellant’s federal service increased her monthly Social Security payment 

by $293.20, which must be offset by the portion of her SSA retirement benefits attributable to her 

federal service on account of age, resulting in a new net FECA compensation payment of 

$1,639.35, every 28 days. Appellant’s compensation benefits were adjusted effective 

July 21, 2019.

OWCP completed a FERS offset calculation worksheet dated August 5, 2019. It calculated 

the overpayment amount by determining the 28-day FERS offset amount for the days in each 

period and computed a total overpayment of $34,226.99. The form indicated that from February 1, 

2009 through November 30, 2011, appellant received an overpayment in the amount of $8,724.88,

from December 1, 2011 through November 30, 2012, she received an overpayment in the amount 

of $3,203.51, from December 1, 2012 through November 30, 2013, she received an overpayment 

in the amount of $3,248.90, from December 1, 2013 through November 30, 2014, she received an 

overpayment in the amount of $3,297.03 from December 1, 2014 through November 30, 2016, she 

received an overpayment in the amount of $6,716.36, from December 1, 2016 through 

November 30, 2017, she received an overpayment in the amount of $3,363.21, from December 1, 

2017 through November 30, 2018, she received an overpayment in the amount of $3,430.60, and 

from December 1, 2018 through July 20, 2019, she received an overpayment in the amount of 

$2,242.50.

In a preliminary determination dated August 5, 2019, OWCP notified appellant that she 

had received an overpayment of compensation in the amount of $34,226.99 because it had failed 

to reduce her wage-loss compensation benefits for the period February 1, 2009 through July 20, 

2019 by the portion of her SSA age-related retirement benefits that were attributable to federal 

service. It found her without fault in the creation of the overpayment and forwarded an 
3

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

OWCP requested that appellant provide supporting documentation including income tax returns, 

bank account statements bills and cancelled checks, pay slips, and any other records which 

supported income and expenses. Additionally, it notified her that within 30 days of the date of the 

letter she could request a teleconference, a final decision based on the written evidence, or a 

prerecoupment hearing.

In a memorandum of telephone call (Form CA-110) dated August 14, 2019, appellant 

indicated that she did not understand how the overpayment had occurred. She alleged that the 

money she was receiving from SSA was from her husband’s Social Security benefits, and not from 

her federal work. 

Appellant continued to contact OWCP requesting clarification about her overpayment and 

what information was needed to dispute the overpayment. A Form CA-110 dated August 30, 2019 

notes that appellant informed OWCP of her disagreement with the information that SSA had 

provided. OWCP advised appellant that if the information was incorrect, then SSA needed to 

provide the corrected information to OWCP in writing. As indicated in a Form CA-110 dated

September 5, 2019, appellant contacted OWCP to discuss the specifics regarding what was needed 

to clear up the overpayment. A September 6, 2019 Form CA-110 documents that appellant 

informed OWCP that OPM advised her that she has never received any money under FERS and 

she was waiting for a letter from OPM confirming this information.

On September 10, 2019 OWCP received appellant’s request for a prerecoupment hearing, 

postmarked September 4, 2019. She indicated that she disagreed with the fact and amount of 

overpayment. Appellant also requested a waiver because she was found without fault in the 

creation of the overpayment. 

In an October 24, 2019 Form CA-110, appellant informed OWCP’s claims examiner that 

she had two documents showing that she was not on FERS. She was advised to submit a copy of 

the documents to OWCP. 

On January 6, 2020 a telephonic hearing was held. Appellant disputed the fact and amount 

of overpayment. She noted a discrepancy in the amount she was receiving from SSA. 

By decision dated March 2, 2020, OWCP’s hearing representative finalized the 

preliminary overpayment determination that appellant had received an overpayment of 

compensation in the amount of $34,226.99 for the period February 1, 2009 through July 20, 2019. 

He determined that she was without fault in the creation of the overpayment. OWCP’s hearing 

representative denied waiver of recovery of the overpayment as there was no evidence that 

recovery would defeat the purpose of FECA. He also found that there was no evidence that 

recovery would be against equity and good conscience. OWCP’s hearing representative required 

recovery of the overpayment by deducting $408.75 every 28 days from appellant’s continuing 

compensation payments.

By decision dated June 30, 2020, OWCP’s hearing representative set aside the March 2, 

2020 decision. He finalized the August 5, 2019 preliminary determination that appellant had 

received an overpayment of compensation in the amount of $34,226.99 for the period February 1, 

2009 through July 20, 2019. OWCP’s hearing representative also denied waiver of recovery of 

the overpayment as there was no evidence that recovery would defeat the purpose of FECA or that 
4

recovery would be against equity and good conscience. He noted that appellant’s husband had 

testified that they had $13,200.00 in their checking and savings accounts, which exceeded the 

resource base of $10,300.00 to qualify for waiver of an overpayment. OWCP’s hearing 

representative also indicated that appellant had not completed and returned Form OWCP-20 or 

other financial documentation to support her assets, income, and expenses. He required recovery 

of the overpayment by deducting $408.75 from her continuing compensation payments every 28 

days. 

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

received an overpayment of compensation.

OWCP determined that appellant received an overpayment of compensation during the 

period February 1, 2009 through July 20, 2019 because she concurrently received FECA wageloss compensation and SSA age-related retirement benefits without an appropriate offset. The 

case record, however, contains CA-110 forms documenting appellant’s notification to OWCP that 

the overpayment was erroneous, that she was not a FERS recipient, and that she had obtained 

written confirmation that she was not a FERS recipient. It therefore remains unclear whether 

appellant was covered under a federal annuity program during the period of the overpayment.

As OWCP has not established that appellant received an overpayment of compensation 

during the period February 1, 2009 through July 20, 2019, the Board finds that OWCP has not met 

its burden of proof. 

IT IS HEREBY ORDERED THAT the June 30, 2020 decision of the Office of Workers’

Compensation Programs is reversed.
5

Issued: August 6, 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