United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

DEPARTMENT OF THE AIR FORCE, U.S. AIR 

FORCE ACADEMY, Colorado Springs, CO, 

Employer

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Docket No. 20-1189

Issued: January 27, 2021

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, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 20, 2020 appellant filed a timely appeal from a May 7, 2020 merit decision of the 

Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

 

1 Appellant submitted a timely requested for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to 

the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, she asserted that oral argument should be granted because she submitted 

all the evidence requested and OWCP did not review it. The Board, in exercising its discretion, denies appellant’s 

request for oral argument because the arguments on appeal can adequately be addressed in a decision based on a 

review of the case record. Oral argument in this appeal would further delay issuance of a Board decision and not serve 

a useful purpose. As such, the oral argument request is denied and this decision is based on the case record as 

submitted to the Board.
2

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

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $9,264.26, for which she was not at fault, because 

she concurrently received FECA wage-loss compensation benefits and Social Security 

Administration (SSA) age-related retirement benefits for the period December 1, 2018 through 

March 28, 2020 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 $319.00 from appellant’s continuing compensation payments every 28 

days.

FACTUAL HISTORY

On June 20, 1991 appellant, then a 38-year-old real property clerk, filed an occupational 

disease claim (Form CA-2) alleging that she developed bronchitis, sinus infections, and chest pain

due to factors of her federal employment. On August 20, 1991 OWCP accepted the claim for 

temporary exacerbation of allergic rhinitis. It later expanded the acceptance of the claim to include 

aggravation of reactive airway disease, aggravation of vocal cord dysfunction, other chronic 

sinusitis, recurrent candidal vulvovaginitis, recurrent urinary tract infection, myalgia and myositis, 

right shoulder sprain, esophagitis, chronic recurrent ear infections, bilateral chronic serous otitis 

media, other chest pain, and benign parxysmal positional vertigo. OWCP paid appellant wageloss compensation on the periodic rolls, beginning June 26, 1991. 

On an EN1032 form dated December 18, 2017, appellant indicated that she received 

monthly SSA disability benefits in the amount of $693.00. On an EN1032 form dated 

December 11, 2018, she indicated that she received SSA disability benefits in the amount of 

$841.00. 

On March 8, 2019 OWCP provided SSA with a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form. 

On March 18, 2019 SSA returned the dual benefits calculation form uncompleted, noting 

that SSA disability insurance benefits were involved. 

In an August 19, 2019 letter, an injury compensation management adviser reviewed the 

case record on behalf of the employing establishment and advised OWCP that appellant was 

receiving SSA disability benefits, which would soon be converted to SSA age-related retirement 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the May 7, 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.
3

benefits. The adviser noted that appellant would reach the normal retirement age of 66 on 

December 23, 2018.

In an EN1032 form dated December 19, 2019, appellant indicated that she received 

monthly SSA age-related retirement benefits in the amount of $865.00. 

OWCP again provided SSA with FERS/SSA dual benefits calculation forms on August 29 

and December 10, 2019 and January 14, 2020. 

In dual benefits calculation forms, dated September 3 and December 18, 2019 and 

February 11, 2020, SSA noted that appellant was only receiving SSA disability benefits and 

indicated that “no offset applied.”

On February 25, 2020 OWCP again provided SSA with a FERS/SSA dual benefits

calculation form. 

On March 10, 2020 SSA completed the dual benefits calculation form, which indicated 

appellant’s SSA benefit rates with a FERS offset and without a FERS offset from December 2018

through December 2019. Beginning December 2018, the SSA rate with FERS was $1,369.00 and 

without FERS was $790.70. Beginning December 2019, the SSA rate with FERS was $1,391.00

and without FERS was $803.30. 

On April 2, 2020 OWCP prepared a FERS offset calculation worksheet wherein it noted 

the calculation of appellant’s SSA offset overpayment from December 1, 2018 through 

March 28, 2020. It found that she received an overpayment of compensation in the amount of

$6,958.66 for the period December 1, 2018 through November 30, 2019 and an overpayment in 

the amount of $2,305.59 for the period December 1, 2019 through March 28, 2020. The total 

overpayment was determined to be $9,264.26.

In a letter dated April 2, 2020, OWCP notified appellant that, based on information 

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

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

On April 2, 2020 OWCP issued a preliminary determination, finding that an overpayment 

of compensation in the amount of $9,264.26 had been created because appellant received SSA 

age-related retirement benefits based upon her federal service, without appropriate offset at the 

same time she received FECA benefits for the period December 1, 2018 through March 28, 2020. 

It explained that the overpayment occurred because her compensation was not reduced by the 

FERS/FECA amount. OWCP found appellant not at fault in the creation of the overpayment and 

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

OWCP-20). It requested that she provide supporting financial documentation including income 

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

to support her reported income and expenses. OWCP afforded appellant 30 days to respond. No 

response was received. 

By decision dated May 7, 2020, OWCP finalized its preliminary determination that 

appellant had received an overpayment of compensation in the amount of $9,264.26, for the period 

December 1, 2018 through March 28, 2020, because it had failed to offset her compensation 
4

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

service. It further found that she 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 $319.00 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 OWCP to 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 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.7

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $9,264.26, for which she was without fault, 

because she concurrently received FECA wage-loss compensation benefits and SSA age-related 

retirement benefits for the period December 1, 2018 through March 28, 2020 without an 

appropriate offset.

As previously noted, OWCP is required to reduce the amount of compensation by the 

amount of any SSA age-related retirement benefits that are attributable to the employee’s federal 

service.8 On September 3 and December 18, 2019, and February 11, 2020, SSA noted in 

FERS/SSA Dual Benefit Calculation Forms that appellant was only receiving SSA disability 

benefits that she was entitled to and indicated that no offset applied. However, on March 10, 2020 

SSA completed a FERS/SSA Dual Benefit Calculation Form and reported that appellant had 

 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6 20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued 

October 23, 2019).

7 FECA Bulletin No. 97-09 (February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020).

8 Supra note 6.
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received SSA age-related retirement benefits subject to SSA/FERS offset from December 2018 

through March 10, 2019, the date of the response.

The Board has held that, in overpayment cases, it is essential that OWCP provide the 

recipient of compensation with a clear statement showing how the overpayment was calculated.9 

With respect to the period and amount of the overpayment, the Board finds that OWCP has not 

adequately explained how the overpayment was determined in light of the discrepancies in the 

evidence provided by SSA as to when appellant began receiving SSA age-related retirement 

benefits.

10

 As such, the Board is unable to verify the fact and amount of the overpayment of 

compensation in the amount of $9,264.26.11

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $9,264.26, for which she was without fault, 

because she concurrently received FECA wage-loss compensation benefits and SSA age-related 

retirement benefits for the period December 1, 2018 through March 28, 2020 without an 

appropriate offset.

 

9 See R.E., Docket No. 19-1583 (issued May 27, 2020); J.M., Docket No. 18-1505 (issued June 21, 2019); Teresa A. 

Ripley, 56 ECAB 528 (2005).

10 See R.E., id.; E.T., Docket No. 19-1046 (issued December 31, 2019).

11 As OWCP has not established fact and amount of the overpayment, the issues of waiver and recovery of the 

overpayment are rendered moot.
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ORDER

IT IS HEREBY ORDERED THAT the May 7, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: January 27, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board