United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.M., Appellant

and

U.S. POSTAL SERVICE, GATLINBURG POST 

OFFICE, Gatlinburg, TN, Employer

__________________________________________

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Docket No. 20-1332

Issued: February 19, 2021

Appearances: Case Submitted on the Record

T. Scott Jones, Esq., for the appellant1

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 June 9, 2020 appellant, through counsel, filed a timely appeal from a May 20, 2020 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ 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

 

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 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the May 20, 2020 decision, appellant submitted additional evidence to OWCP.

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

ISSUE

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $32,335.88 for which he was without fault because he concurrently received FECA 

wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits 

for the period December 1, 2014 through March 29, 2020 without an appropriate offset; 

(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether it

properly required recovery of the overpayment by deducting $563.00 from appellant’s continuing 

compensation payments every 28 days.

FACTUAL HISTORY

On July 26, 1991 appellant, then a 42-year-old rural mail carrier, filed an occupational 

disease claim (Form CA-2). He noted that he first became aware of his condition and realized its 

relationship to his federal employment on October 27, 1988. Appellant stopped work on 

February 15, 1991. In an attached statement, he alleged that he developed “mental and emotional 

stress and conflict” due to factors of his federal employment. Appellant contended that he was 

unable to keep up with his daily duties as a rural mail carrier because the employing establishment 

changed its casing methods, was forced to work when he was sick, and was subjected to hazardous 

work conditions. He provided a chronological list of the employment factors, which he believed 

supported his claim for a work-related emotional condition. 

OWCP accepted appellant’s claim for conversion disorder and single episode of major 

depression. It paid him wage-loss compensation on the periodic rolls beginning 

December 11, 1994.

In a letter dated February 3, 1994, OWCP advised appellant that employees entitled to both 

OWCP and Office of Personnel Management (OPM) retirement benefits must elect which benefit 

to receive. It also advised appellant that, if he elected FECA benefits in lieu of OPM benefits, his 

FECA benefits would be reduced by the SSA age-related retirement benefits paid that were

attributable to his federal service. 

On February 23, 1994 appellant completed and signed a form, indicating that he elected to 

receive FECA benefits in lieu of OPM benefits effective February 19, 1991. 

On February 7, 2020 OWCP provided SSA with a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form. It listed the computation period as October 27, 1988 

to current. 

On March 6, 2020 an SSA representative completed the dual benefits calculation form. 

The SSA representative provided corresponding monthly SSA benefits rates beginning 

December 2014 that both included and excluded appellant’s FERS contributions. The form 

indicated that: beginning December 2014, his SSA rate with FERS was $1,208.90 and without 

FERS was $713.90; beginning December 2016, his SSA rate with FERS was $1,212.00 and 

without FERS was $716.00; beginning December 2017, his SSA rate with FERS $1,237.00 and 

without FERS was $731.00; beginning December 2018, his SSA rate with FERS was $1,271.50 

and without FERS was $751.50; and beginning December 2019, his SSA rate with FERS was 

$1,291.60 and without FERS was $762.60. 
3

Effective March 29, 2020, OWCP paid appellant at the adjusted amount of $2,552.63 to 

include the offset of his SSA age-related retirement benefits attributable to his federal service. 

OWCP completed a FERS offset calculation worksheet dated April 8, 2020. 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 $32,335.88. The form indicated that from 

December 1, 2014 through November 30, 2016, appellant received an overpayment in the amount 

of $11,928.96, from December 1, 2016 through November 30, 2017, he received an overpayment 

in the amount of $5,968.35, from December 1, 2017 through November 30, 2018, he received an 

overpayment in the amount of $6,088.68, from December 1, 2018 through November 30, 2019, he 

received an overpayment in the amount of $6,257.14, and from December 1, 2019 through 

March 29, 2020, he received an overpayment in the amount of $2,092.75. 

In a preliminary determination dated April 8, 2020, OWCP notified appellant that he had 

received an overpayment of compensation in the amount of $32,335.88 because it had failed to 

reduce his wage-loss compensation benefits for the period December 1, 2014 through March 29, 

2020 by the portion of his SSA age-related retirement benefits that were attributable to federal 

service. It further advised him of its preliminary determination that he was not at fault in the 

creation of the overpayment. OWCP requested that appellant submit a completed overpayment

recovery questionnaire (Form OWCP-20), with supporting financial documentation, to determine 

a reasonable payment method, and advised him that he could request waiver of recovery of the 

overpayment. Additionally, it notified him that, within 30 days of the date of the letter, he could 

request a teleconference, a final decision based on the written evidence, or a prerecoupment 

hearing. 

On May 6, 2020 appellant requested a prerecoupment hearing before a representative of 

OWCP’s Branch of Hearings and Review. He noted his disagreement with the fact and the amount 

of the overpayment and requested waiver of recovery of the overpayment. Appellant asserted that 

he had correctly reported his SSA benefits to OWCP and that any errors were solely attributable 

to OWCP. He also submitted a completed Form OWCP-20, which included financial information 

for consideration of waiver. 

By decision dated May 20, 2020, OWCP finalized the April 8, 2020 preliminary 

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

of $32,335.88 for the period December 1, 2014 through March 29, 2020 because he concurrently 

received SSA age-related retirement benefits and FECA wage-loss compensation without 

appropriate offset. It also found that appellant was without fault in the creation of the overpayment, 

but denied waiver of recovery of the overpayment. OWCP determined that recovery of the 

overpayment would require deducting $563.00 from appellant’s continuing compensation 

payments every 28 days. 

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 

 

4 5 U.S.C. § 8102(a).
4

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 that OWCP 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 concurrent receipt of FECA benefits and federal retirement is a prohibited dual benefit.7

ANALYSIS -- ISSUE 1

The Board finds that appellant received an overpayment of compensation for which he was 

without fault, because he concurrently received FECA wage-loss compensation benefits and SSA 

age-related retirement benefits without appropriate offset.

As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA 

age-related retirement benefits attributable to federal service without an appropriate offset.

8

 The 

evidence of record has established that, beginning December 1, 2014, appellant received SSA agerelated retirement benefits that were attributable to his federal service during a period of time that 

he also received FECA wage-loss compensation. The Board finds that fact of overpayment is, 

therefore, established.

The Board further finds, however, that OWCP improperly calculated the amount of the 

overpayment for the period December 1, 2014 through March 29, 2020.

The evidence of record indicates that, beginning March 29, 2020, appellant began to 

receive FECA wage-loss compensation at the adjusted amount of $2,552.63 to include the offset 

of his SSA age-related retirement benefits attributable to his federal service. As he was no longer 

receiving dual benefits as of March 29, 2020, this date should not have been included in the 

overpayment calculation. OWCP improperly calculated appellant’s overpayment based on his 

dual SSA and FECA benefits through March 29, 2020, rather than the appropriate date of

March 28, 2020.9

On remand OWCP shall determine the exact amount of the overpayment of compensation 

for the period December 1, 2014 through March 28, 2020. It shall then issue a new preliminary 

overpayment determination, with an overpayment action request form, a Form OWCP-20, and 

 

5

Id. at § 8116.

6 20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018); L.J., 59 ECAB 264 (2007).

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

8

Id. See also A.C., Docket No. 18-1550 (issued February 21, 2019).

9 See R.L., Docket No. 20-0539 (issued September 15, 2020); L.B., Docket No. 19-1322 (issued January 27, 2020).
5

instructions for appellant to provide supporting financial documentation. After this and other such 

further development as deemed necessary, it shall issue a de novo decision.10

CONCLUSION

The Board finds that appellant received an overpayment of compensation for the period 

December 1, 2014 through March 28, 2020 for which he was without fault because he concurrently 

received FECA wage-loss compensation and SSA age-related retirement benefits without an

appropriate offset. The Board further finds, however, that this case is not in posture for decision 

with regard to the amount of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the May 20, 2020 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further

proceedings consistent with this decision of the Board.

Issued: February 19, 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

 

10 In light of the Board’s disposition of issue 1, issues 2 and 3 are rendered moot.