United States Department of Labor

Employees’ Compensation Appeals Board

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R.H., Appellant

and

DEPARTMENT OF THE AIR FORCE, AIR 

FORCE SPACE COMMAND, MALMSTROM 

AIR FORCE BASE, MT, Employer

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Docket No. 21-0567

Issued: January 24, 2022

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 December 8, 2020 appellant filed a timely appeal from a November 4, 2020 merit 

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

Boards assigned Docket No. 21-0567.1

On January 3, 1995 appellant, then 46-year-old airfield clearing equipment operator, filed 

a traumatic injury claim (Form CA-1) alleging that on December 28, 1994 he sustained injuries 

when a two-ton concrete slab slid off a truck crushing both of his legs and pinning him to a wall 

while in the performance of duty. He stopped work on the date of injury. OWCP accepted the 

claim for closed fracture of tibia and fibula, shaft, bilateral; derangement of posterior horn of lateral 

meniscus, bilateral; derangement of posterior horn of medial meniscus, bilateral; effusion of joint, 

lower leg, bilateral; enthesopathy of left hip region; joint replacement, knee; late effect of 

dislocation, bilateral; late effect of fracture of lower extremities, bilateral; localized osteoarthritis, 

1 The Board notes that,following the November 4, 2020 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.
2

lower leg, bilateral; and osteoarthrosis lower leg, bilateral.

2

 On June 1, 2006 it expanded the 

acceptance of the claim to include left hip trochanteric bursitis secondary to rod placement.3 

OWCP paid him wage-loss compensation. 

On June 17, 2020 OWCP forwarded to SSA a Federal Employees Retirement System 

(FERS)/SSA dual benefits form. 

On July 11, 2020 SSA completed the FERS/SSA dual benefits form setting forth 

appellant’s SSA age-related retirement benefit rates with FERS and without FERS commencing

May 2014. Beginning May 2014, the SSA rate with FERS was $1,273.30 and without FERS was 

$1,174.30; beginning December 2014 and December 2015, the SSA rate with FERS was 

$1,294.90 and without FERS was $1,194.20; beginning December 2016, the SSA rate with FERS 

was $1,298.70 and without FERS was $1,197.70; beginning December 2017, the SSA rate with 

FERS was $1,324.60 and without FERS was $1,221.60; beginning December 2018, the SSA rate 

with FERS was $1,361.50 and without FERS was $1,255.80; and beginning December 2019, the 

SSA rate with FERS was $1,383.30 and without FERS was $1,275.80. 

OWCP completed a FERS offset overpayment calculation worksheet on August 26, 2020. 

It calculated the overpayment amount by determining the daily FERS offset amount and 

multiplying that amount by the number of days for the period May 1, 2014 through 

August 15, 2020. The form indicated that from May 1 through November 30, 2014 appellant 

received an overpayment of $698.44; from December 1, 2014 through November 30, 2015, he

received an overpayment of $1,211.72; from December 1, 2015 through November 30, 2016, he

received an overpayment of $1,215.04; from December 1, 2016 through November 30, 2017, he

received an overpayment of $1,215.33; from December 1, 2017 through November 30, 2018, he 

received an overpayment of $1,239.40; from December 1, 2018 through November 30, 2019, he

received an overpayment of $1,273.09; and from December 1, 2019 through August 15, 2020, he

received an overpayment of $917.88, for a total overpayment of $7,770.90. 

On August 26, 2020 OWCP issued a preliminary overpayment determination, finding that 

an overpayment of compensation in the amount of $7,770.90 had been created. It explained that 

the overpayment occurred because appellant’s SSA age-related retirement benefits that he received 

from May 1, 2014 through August 15, 2020 were partially based on credits earned while working 

for the Federal Government, and that this portion of his SSA benefit constituted a prohibited dual 

benefit. OWCP found appellant not at fault in the creation of the overpayment and forwarded an 

2 By decision dated February 8, 2000, OWCP granted appellant a schedule award for 42 percent permanent 

impairment of his right leg and 7 percent permanent impairment for his left leg. The schedule a ward ran for the period 

January 30, 2000 through October 14, 2002. 

3 By decision dated November 2, 2007, OWCP granted appellant a schedule award for 8 percent additional 

permanent impairment of his right lower extremity and 43 percent additional permanent impairment of his left lower 

extremity. The award ran for 146.88 weeks for the period October 28, 2007 through August21, 2010. The case record 

contains a September 28, 2007 letter from appellant to OWCP, indicating, among other things, that appellant was not 

entitled to Office of Personnel Management (OPM) annuity benefits because he was “hired as a temporary overhire.” 

At the bottom of the November 1, 2007 schedule award payment plate, OWCP indicated that appellant was not entitled 

to an annuity from OPM. After payment of each schedule award OWCP resumed payment of wage-loss compensation 

on the periodic compensation rolls.
3

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

It requested that he provide supporting financial documentation, including income tax returns, 

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

his reported income and expenses. OWCP afforded appellant 30 days to respond. 

In an August 27, 2020 letter, OWCP notified appellant that, based on the information 

provided by SSA regarding the amount of his age-related retirement benefits, which were 

attributable to federal service, his FECA wage-loss compensation had been adjusted. It advised 

him that he would receive $2,811.77 in net FECA wage-loss compensation every 28 days after the 

SSA offset. 

On the overpayment action request form dated September 1, 2020, appellant disagreed that 

the overpayment occurred and requested waiver as he was found to be without fault in the creation 

of the overpayment. He asserted that he was given incorrect information. Appellant indicated that 

he was in receipt of workers’ compensation under OWCP, not retirement benefits. A completed 

Form OWCP-20 and financial information were not received.

By decision dated November 4, 2020, OWCP finalized its preliminary overpayment 

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

of $7,770.90 for the period May 1, 2014 through August 15, 2020, because it had failed to offset 

his compensation payments by the portion of his SSA age-related retirement benefits that were 

attributable to his federal service. It further found that he was without fault in the creation of the 

overpayment, but denied waiver of recovery of the overpayment because the evidence of record 

was insufficient to establish that recovery of an overpayment would defeat the purpose of FECA 

or would be against equity and good conscience. OWCP required recovery of the overpayment by 

deducting $703.00 every 28 days from appellant’s continuing compensation payments.

The Board finds that OWCP did not meet its burden of proof to establish that appellant 

received an overpayment of compensation.

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

reduced by the 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.4 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.5 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.6 In identifying the fact and amount of an overpayment of compensation following a 

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

Chapter 6.200.1 (h) (September 2018).

5

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

6 FECA Bulletin No. 97-09 (issued February3, 1997).
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claimant’s receipt of age-related SSA age-related retirement benefits, the Board has observed that 

OWCP uses a FERS offset overpayment calculation worksheet.7 The form sets forth the SSAreported information as to the effective date and rates of SSA age-related retirement benefits with 

and without FERS. Following receipt of the purported SSA calculations, a preliminary 

determination of overpayment is issued if a prohibited dual benefit was received. 8

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. 

Therefore, the information solicited on the FERS offset overpayment 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.

Herein, the evidence of record does not establish that appellant was enrolled in FERS. 

Appellant stated, in his September 1, 2020 overpayment action request form, that he was not in 

receipt of retirement benefits. The record contains correspondence from appellant dated 

September 28, 2007 in which appellant advised OWCP that he could not elect annuity benefits 

from OPM because he was hired by the employing establishment as a temporary employee and 

was not entitled to annuity benefits. Additionally, OWCP previously indicated, in November 2007 

payment records, that appellant was not entitled to an annuity from OPM. 

The Board thus finds that OWCP did not meet its burden of proof to establish that appellant 

received an overpayment of compensation during the period May 1, 2014 through 

August 15, 2020.

7

Id.

8

Supra note 2. 
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IT IS HEREBY ORDERED THAT the November 4, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: January 24, 2022

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