United States Department of Labor

Employees’ Compensation Appeals Board

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T.M., Appellant

and

SMALL BUSINESS ADMINISTRATION, 

Boston, MA, Employer

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Docket No. 20-0967

Issued: April 12, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 30, 2020 appellant filed a timely appeal from a January 9, 2020 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(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 appellant received an overpayment of compensation in the 

amount of $7,937.70 for the period August 3 through October 12, 2019 for which she was without 

fault because she concurrently received Office of Personnel Management (OPM) retirement 

benefits and FECA wage-loss compensation benefits; and (2) whether OWCP properly denied 

waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 2, 2017 appellant, then a 70-year-old business opportunity specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on January 12, 2017 she fell at work and 

fractured her left hip while in the performance of duty. She stopped work that day. On January 17, 

2017 appellant underwent a left total hip replacement. On February 23, 2017 OWCP accepted the 

claim for displaced femoral neck fracture of the left hip. It paid appellant wage-loss compensation 

on the supplemental rolls commencing March 19, 2017 and on the periodic rolls commencing 

April 2, 2017. Appellant returned to part-time light-duty work on November 19, 2018. 

In an August 20, 2019 e-mail, appellant’s vocational rehabilitation counselor noted that 

appellant had elected to retire, effective August 3, 2019. 

In a letter dated September 5, 2019, OWCP advised appellant that her period of entitlement 

to compensation was August 18 through September 14, 2019, that her weekly wage-loss 

compensation on the periodic rolls was $844.25, that her monthly compensation was $3,658.42, 

and that her payment every 28 days was $3,377.00. It noted that she was receiving or may be 

entitled to receive benefits provided by OPM under her retirement system. OWCP informed 

appellant that she was not entitled to receive annuity benefits from OPM and benefits for wage -

loss compensation from OWCP for the same period of time. It noted that she must elect which 

benefit to receive and provided her with an election form.

On September 12, 2019 OWCP received a notification of personnel action, Standard Form 

(SF) 50, indicating that appellant voluntarily retired effective August 3, 2019 and that she was 

under the Civil Service Retirement System (CSRS).

In a September 25, 2019 letter, OWCP again advised appellant that her weekly 

compensation amount on the periodic rolls for the period September 15 through October 12, 2019 

was $844.25. It further informed her that she must report any retirement income received from 

any federal agency, as federal employees who receive wage-loss compensation benefits under 

FECA are not permitted to concurrently receive benefits under certain other federa l programs, 

including CSRS or the Federal Employees Retirement System (FERS).

On October 15, 2019 OWCP received an election of benefits form signed by appellant on 

October 7, 2019 in which she indicated that, effective August 3, 2019, she was electing to receive 

benefits from OPM in preference to any benefits she might be entitled to under FECA. Appellant

noted that she had not yet been assigned a civil service active (CSA) number.

In a November 5, 2019 letter, OWCP requested that OPM reimburse it in the amount of 

$7,937.70 for FECA benefits paid to appellant during the period August 3 through 

October 12, 2019.

On November 22, 2019 OWCP issued a preliminary overpayment determination that an 

overpayment of compensation was created in the amount of $7,937.70 for the period August 3 

through October 12, 2019 because appellant “retroactively elected dual benefit (annuity 

payments)” via OPM while in receipt of disability compensation under FECA for the same period. 

It found that she was without fault in the creation of the overpayment. OWCP provided appellant
3

an overpayment action request form and an overpayment recovery questionnaire (Form 

OWCP-20) requesting financial information, including copies of income tax returns, bank account 

statements, bills, pay slips, and any other records to support income and expenses. It advised that, 

within 30 days of the date of the letter, she could contest the overpayment and request a telephone 

conference, a final decision based on the written evidence, or a prerecoupment hearing. 

In a completed overpayment action request form dated December 8, 2019 and received 

December 23, 2019, appellant requested that OWCP render a decision based on the written 

evidence and requested waiver of recovery of the overpayment. She noted that she had not yet 

received any retirement benefits. On an undated Form OWCP-20 received December 23, 2019,

appellant provided her financial information. She noted that she had continued to receive 

payments from OWCP, but had not received a retirement annuity. Appellant provided her 2018 

Federal tax return.

By decision dated January 9, 2020, OWCP finalized the November 22, 2019 preliminary 

overpayment determination, finding that appellant received an overpayment of compensation in 

the amount $7,937.70 for the period August 3 through October 12, 2019. It found that she was 

without fault in the creation of the overpayment of compensation, but denied waiver of recovery 

of the overpayment as she had not provided sufficient financial documentation. OWCP required 

that appellant repay the overpayment in full.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of his 

or her federal employment.2 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.3

Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may 

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity. 4 

The beneficiary must elect the benefit that he or she wishes to receive.5 OWCP’s procedures also 

explain that the employee must make an election between FECA benefits and OPM benefits. The 

employee has the right to elect the monetary benefit which is the more advantageous. This policy 

also applies to reemployed annuitants.6

2

5 U.S.C. § 8102(a).

3

Id. at § 8116.

4

20 C.F.R. § 10.421(a).

5

Id.

6 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (January 1997); L.H., 

Docket No. 19-1485 (issued August 14, 2020); R.S., Docket No. 11-0428 (issued September 27, 2011); Harold 

Weisman, Docket No. 93-1335 (issued March 30, 1994).
4

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant had received an 

overpayment of compensation in the amount of $7,937.70 for period August 3 through 

October 12, 2019. 

On October 7, 2019 appellant elected OPM retirement benefits, retroactive to 

August 3, 2019. OWCP, however, continued to pay her compensation on the periodic rolls 

through October 12, 2019. On November 5, 2019 it requested that OPM reimburse it in the 

amount of $7,937.70 for FECA benefits paid during the period August 3 through 

October 12, 2019. On November 22, 2019 OWCP issued a preliminary overpayment 

determination that an overpayment of compensation was created in the amount of $7,937.70 for 

the period August 3 through October 12, 2019 because appellant “retroactively elected dual 

benefit (annuity payments)” via OPM while in receipt of disability compensation under FECA for 

the same period. In a completed overpayment action request form dated December 8, 2019 and 

received December 23, 2019, appellant contended that she had not yet received any OPM

retirement benefits. OWCP, however,finalized the November 22, 2019 preliminary overpayment 

determination by decision dated January 9, 2020.

While the record reflects that appellant received FECA benefits for the period August 3 

through October 12, 2019, OWCP has not established that she also received OPM benefits for this 

period.

7

 The Board has previously held that the mere fact that a claimant received FECA benefits 

after the effective date of an OPM election will not establish receipt of a prohibited dual benefit. 8 

Therefore, the Board finds that OWCP has not met its burden of proof to establish that the 

overpayment occurred.

9

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $7,937.70 for the period August 3 through 

October 12, 2019.

10

7 C.P., Docket No. 19-0732 (issued September 5, 2019); M.C., Docket No. 18-0074 (issued August 1, 2019).

8 C.P., id.; J.M., Docket No. 15-1604 (issued May 23, 2016) B.H., Docket No. 13-1955 (issued January 29, 2014).

9

See C.P., supra note 7.

10 In light of the Board’s finding on Issue 1, Issue 2 isrendered moot.
5

ORDER

IT IS HEREBY ORDERED THAT the January 9, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: April 12, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board