United States Department of Labor

Employees’ Compensation Appeals Board

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P.C., claiming as widow of R.C., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

MONTANA AIR NATIONAL GUARD, 

Great Falls, MT, Employer

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Docket No. 20-1546

Issued: May 4, 2021

Appearances: Case Submitted on the Record

William O. Bronson, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On August 21, 2020 appellant, through counsel, filed a timely appeal from a February 26, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of 

the Appellate Boards assigned Docket No. 20-1546.

The issues on appeal before the Board relate to OWCP’s February 26, 2020 finding of an 

overpayment of wage-loss compensation in the amount of $15,287.31 for the period September 1, 

1995 through January 7, 2019 for which the employee2 was without fault, due to his alleged 

concurrent receipt of Federal Employees’ Compensation Act3(FECA) wage-loss compensation 

 

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 The record reflects that the employee passed away on December 7, 2019. (RD 12/31/19)

3 5 U.S.C. § 8101 et seq.
2

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

offset. OWCP also denied waiver of recovery of the overpayment. 

The Board finds that OWCP failed to properly develop the underlying issue of what portion 

of the employee’s SSA age-related retirement benefits were attributable to federal employment.4

OWCP’s procedures provide that an overpayment occurs when FECA compensation is not 

reduced by the Federal Employees Retirement System (FERS)/FECA offset amount. Since the 

SSA will not report an offset amount until after SSA benefits are received, an overpayment will 

almost always occur and will need to be calculated for each period in which the offset amount was 

not withheld from compensation.5 The offset provision of 5 U.S.C. § 8116(d)(2) and applicable 

regulations apply to SSA age-related retirement benefits that are attributable to federal service.6 

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 concurrent receipt of FECA benefits 

and federal retirement is a prohibited dual benefit.7 In identifying the fact and amount of 

overpayment of compensation following a claimant’s receipt of SSA age-related retirement 

benefits, the Board has observed that OWCP uses a FERS offset calculation worksheet.8 This 

calculation worksheet is sent to SSA and the completed form is returned to OWCP setting forth 

purported SSA calculations as to the effective date and rate of SSA benefits without FERS and the 

effective date and rate of SSA benefits with FERS.9 Following receipt of the purported SSA 

calculations, a preliminary determination of overpayment is issued if a prohibited dual benefit was 

received.10

The Board has observed, however, that not all federal employees are enrolled in FERS. 

Some FECA claimants are enrolled in another retirement program, such as the Civil Service 

Retirement System (CSRS). Other federal employees are not entitled to be enrolled in a federal 

retirement program. Therefore, OWCP’s procedures with regard to requesting offset information 

are not applicable to all recipients of FECA compensation and SSA age-related retirement benefits. 

The information solicited on the FERS offset calculation worksheet that OWCP sends to 

SSA is not applicable to non-FERS claimants and does not establish either the fact or amount of 

an overpayment.

 

4 See P.R., Docket No. 20-0851 (issued January 29, 2021); see also L.A., Docket No. 20-0949 (issued 

December 2, 2020).

5 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, 

Chapter 6.200.1(h) (September 2020).

6 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

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

8

Id. 

9

Id. 

10 Supra note 3.
3

In the present case, a notification of personnel action (Form SF-50), dated October 28, 

1985, indicates that the employee’s retirement plan was “CS,” not FERS. (RD 10/28/85) 

Furthermore, in a July 15, 1986 letter, OWCP advised the employee that he was receiving or may 

be entitled to receive benefits provided by the U.S. Civil Service Retirement Act. It requested that 

he complete the enclosed election forms indicating whether he preferred to receive FECA benefits 

or CSRS benefits for the same period of time.

Accordingly, the Board finds that the evidence of record does not establish that the 

employee was enrolled in FERS.11 As OWCP has not established that the employee received SSA 

age-related retirement benefits, based on his federal service, concurrently with FECA disability 

compensation from OWCP, without proper offset, it has not established that he received an 

overpayment of compensation. The Board therefore finds that the February 26, 2020 decision 

must be reversed.

IT IS HEREBY ORDERED THAT the February 26, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: May 4, 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

 

11 See D.B., Docket No. 18-0358 (issued January 21, 2020).