United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.V., Appellant

and

DEPARTMENT OF ENERGY, 

SOUTHEASTERN COURIER SECTION, 

Oak Ridge, TN, Employer

__________________________________________

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Docket No. 20-0952

Issued: February 2, 2022

Appearances: Case Submitted on the Record

Marshall Stair, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 23, 2020 appellant, through counsel, filed a timely appeal from a September 30, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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 yea r 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 Appellant died after the filing of this appeal. As such, a substitute appellant is required to carry the appeal forward 

as the Board’s jurisdiction was invoked during his lifetime. See D.V., Docket No. 20-1291 (issued September 14, 

2021; N.D., Docket No. 14-1757 (issued June 2, 2015); Albert F. Kimbrell, 4 ECAB 662, 666(1952). Accordingly, 

appellant’s spouse, E.V., is recognized by the Board as the substitute appellant for the purposes of carrying the appeal 

forward.
2

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.4

ISSUES

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

overpayment of compensation in the amount of $107,831.76, 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 November 1, 2005 through

August 17, 2019, 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 $500.00 from appellant’s continuing compensation payments every 28 

days.

FACTUAL HISTORY

On November 30, 1990 appellant, then a 50-year-old nuclear materials courier, filed a 

traumatic injury claim (Form CA-1) alleging that on November 26, 1990 he felt a sharp pain in his 

left knee and leg when jogging during an employing establishment-sanctioned physical fitness 

program while in the performance of duty. OWCP accepted the claim for herniated discs at L3-4 

and L4-5, and paid appellant wage-loss compensation on the periodic rolls as of June 16, 2002. 

On July 11, 2019 OWCP forwarded a Federal Employees Retirement System (FERS)/SSA 

dual benefits form to SSA to obtain appropriate information for determination as to whether an 

offset of compensation benefits was required. 

On July 24, 2019 OWCP received from SSA a completed FERS/SSA dual benefits form,

dated July 14, 2019, which indicated that appellant had been in receipt of SSA age-related 

retirement benefits since November 2005. The form reported appellant’s SSA age-related 

retirement benefit rates with and without a FERS offset. Beginning November 2005, the SSA rate 

with FERS was $1,590.50, and without FERS was $1,048.10; beginning December 2005, the SSA 

rate with FERS was $1,655.70, and without FERS was $1,091.00; beginning December 2006, the 

SSA rate with FERS was $1,710.30,and without FERS was $1,127.00; beginning December 2007, 

the SSA rate with FERS was $1,749.60, and without FERS was $1,152.90; beginning 

December 2008, the SSA rate with FERS was $1,851.00 and without FERS was $1,219.70;

beginning December 2009, the SSA rate with FERS was $1,851.00, and without FERS was 

$1,219.70; beginning December 2010, the SSA rate with FERS was $1,851.00, and without FERS 

was $1,219.70; beginning December 2011, the SSA rate with FERS was $1,917.60 and without 

FERS was $1,263.60; beginning December 2012, the SSA rate with FERS was $1,950.10, and 

without FERS was $1,285.00; beginning December 2013, the SSA rate with FERS was $1,979.30,

3

5 U.S.C. § 8101 et seq.

4 The Board notes that OWCP received additional evidence following the September 30, 2019 decision. 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

and without FERS was $1,304.20; beginning December 2014, the SSA rate with FERS was 

$2,012.90, and without FERS was $1,326.30; beginning December 2015, the SSA rate with FERS 

was $2,012.90, and without FERS was $1,326.30; beginning December 2016, the SSA rate with 

FERS was $2,018.90, and without FERS was $1,330.20; beginning December 2017, the SSA rate 

with FERS was $2,059.20, and without FERS was $1,356.80; and beginning December 2018, the 

SSA rate with FERS was $2,116.80, and without FERS was $1,394.70.

In an August 26, 2019 letter, OWCP informed appellant that, effective August 18, 2019, it 

would begin deducting the portion of SSA age-related retirement benefits attributable to his federal 

service from his 28-day periodic compensation benefits. It noted that his current monthly SSA 

age-related retirement benefit with FERS was $2,116.80 and without FERS was $1,394.70. 

OWCP explained that the amount of FERS/SSA dual benefit to be deducted from appellant’s

FECA benefits was $722.10 per month, or $666.55 every 28 days. It explained that his new net 

compensation payment would be $1,979.21 every 28 days.

On August 26, 2019 OWCP issued a preliminary overpayment determination, finding that 

an overpayment of compensation in the amount of $10,831.76 had been created because it had 

failed to reduce appellant’s wage-loss compensation payments for the period November 1, 2005 

through August 17, 2019, to offset his SSA age-related retirement benefits that were attributable 

to federal service. It explained that it had reduced his ongoing OWCP benefits for the periodic 

rolls cycle effective August 18, 2019, and that an overpayment occurred for the period 

November 1, 2005 through August 17, 2019. OWCP determined that appellant was without fault 

in the creation of the overpayment because he relied on misinformation given in writing and there 

was no evidence to demonstrate that he knew, or should have known, that an improper payment 

had occurred. It informed him that, if he agreed with the overpayment amount, he could make a 

payment online or send a check or money order for the full amount to OWCP. OWCP further 

informed appellant that, if he disagreed with the overpayment amount, he could submit a 

completed overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable 

repayment method and request waiver of recovery of the overpayment. It noted that the Form 

OWCP-20 required that he provide supporting financial documentation, including copies of 

income tax returns, bank account statements, bills, pay slips, and any other records to support 

income and expenses. Additionally, OWCP provided an overpayment action request form and 

further notified appellant that, within 30 days of the date of the letter, he could request a telephone 

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

In an accompanying overpayment calculation memorandum, OWCP noted that the issue 

was whether appellant was overpaid compensation for the period November 1, 2005 to August 17, 

2019 in the amount of $10,831.76. It attached a FERS offset calculation worksheet, determined 

the 28-day FERS offset amount for the days in each period, and computed a total overpayment 

amount of $107,831.76. The offset calculation worksheet indicated that from November 1 through 

30, 2005, appellant received an overpayment in the amount of $536.44; from December 1, 2005 

through November 30, 2006, he received an overpayment in the amount of $6,795.02; from 

December 1, 2006 through November 30, 2007, he received an overpayment in the amount of 

$7,018.83; from December 1, 2007 through November 30, 2008, he received an overpayment in 

the amount of $7,199.74; from December 1, 2008 through November 30, 2009, he received an 

overpayment in the amount of $7,596.41; from December 1, 2009 through November 30, 2010, he 

received an overpayment in the amount of $7,596.41; from December 1, 2010 through 
4

November 30, 2011, he received an overpayment in the amount of $7,596.41; from December 1, 

2011 through November 30, 2012, he received an overpayment in the amount of $7,891.12; from 

December 1, 2012 through November 30, 2013, he received an overpayment in the amount of 

$8,003.13; from December 1, 2013 through November 30, 2014, he received an overpayment in 

the amount of $8,123.46; from December 1, 2014 through November 30, 2015, he received an 

overpayment in the amount of $8,261.84; from December 1, 2015 through November 30, 2016, he 

received an overpayment in the amount of $8,284.47; from December 1, 2016 through 

November 30, 2017, he received an overpayment in the amount of $8,267.10; from December 1, 

2017 through November 30, 2018, he received an overpayment in the amount of $8,451.96; and 

from December 1, 2018 through August 17, 2019, he received an overpayment in the amount of 

$6,189.43. OWCP determined that appellantwas without fault in the creation of the overpayment. 

It concluded that a preliminary overpayment determination was made that an overpayment had 

occurred for the period November 1, 2005 to August 17, 2019, in the amount of $10,831.76. 

On September 24, 2019 OWCP received a check from appellant in the amount of 

$10,831.76. 

By decision dated September 30, 2019, OWCP finalized the preliminary overpayment 

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

of $107,831.76 for the period November 1, 2005 through August 17, 2019, because he 

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

benefits without a proper offset. It also found that he was without fault in the creation of the 

overpayment, but denied waiver of recovery of the overpayment. OWCP noted that as of the date 

of the decision, no response had been received to the preliminary overpayment determination and 

appellant had not requested waiver. It required recovery of the overpayment by deducting $500.00 

every 28 days from his 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.5 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.6

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.7 FECA Bulletin No. 97-09 states that FECA 

benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA 

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August12, 2020); L.W., Docket No. 19-0787 (issued 

October 23, 2019).
5

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. 8

ANALYSIS -- ISSUE 1

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

November 1, 2005 through August 17, 2019, for which he was without fault, because he 

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

without an appropriate offset.

Appellant is precluded from simultaneously receiving FECA wage-loss compensation and 

SSA age-related retirement benefits based on his federal service.9 On July 13, 2019 SSA reported 

that a portion of appellant’s monthly retirement benefit was attributable to his federal service. 

Consequently, OWCP was obliged to offset his FECA wage-loss compensation by the amount of 

SSA age-related retirement benefits attributable to his federal service.10 Therefore, the Board finds 

that fact of overpayment is established.

The Board further finds that this case is not in posture for decision with respect to the 

amount of the overpayment. 

In overpayment cases, it is essential that OWCP provide the recipient of compensation with 

a clear statement showing how the overpayment was calculated. 11 The Board notes that in the 

August 26, 2019 preliminary overpayment determination, OWCP informed appellant that an 

overpayment of compensation in the amount of $10,831.76 had been created because it had failed 

to reduce his wage-loss compensation payments for the period November 1, 2005 through 

August 17, 2019, to offset his SSA age-related retirement benefits that were attributable to federal 

service. OWCP explained that he was without fault and that the overpayment occurred because 

he relied on misinformation given in writing and there was no evidence to demonstrate he knew 

or should have known that an improper payment had occurred. In the overpayment memorandum, 

it also noted that the issue was whether appellant was overpaid compensation for the period

November 1, 2005 to August 17, 2019 in the amount of $10,831.76.

OWCP then completed a FERS offset calculation worksheet and computed a total 

overpayment amount of $107,831.76. It concluded that appellant was without fault in the creation 

of the overpayment due to the complexity in benefits administration, and that there was no 

evidence to demonstrate that he knew, or should have known, that an improper payment had 

occurred. OWCP further concluded that an overpayment had occurred for the period November 1, 

2005 to August 17, 2019, in the amount of $10,831.76.

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

9

Id. 

10 5 U.S.C. § 8116(d)(2); 20 C.F.R. § 10.421(d).

11 See S.H., Docket No. 20-1189 (issued January 27, 2021); 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).
6

Appellant subsequently remitted a check for $10,831.76. The full amount of the 

overpayment noted in the preliminary overpayment determination.

In the September 30, 2019 decision, OWCP finalized the overpayment determination and 

found that an overpayment in the amount of $107,831.76 had occurred. It also noted that no 

response had been received to the preliminary overpayment determination. However, the Board 

notes that this was incorrect, as appellant responded to the preliminary overpayment determination

by remitting a check in the amount of $10,831.76.

The Board finds that OWCP has not adequately explained how the overpayment was 

determined in light of the above-noted discrepancies in the determination of the overpayment 

amount. The Board notes that OWCP did not acknowledge receipt of that check or subtract the

amount remitted from the overpayment due. The Board finds that appellant might have requested 

a prerecoupment hearing, and or submitted financial documentation, if he had been clearly 

informed that the amount of the overpayment was $107,831.76, rather than $10,831.76. It is

essential that OWCP provide the recipient of compensation with a clear statement showing how 

the overpayment was calculated.12 As the calculation of the overpayment was unclear, the Board 

finds that OWCP has not met its burden of proof to establish amount of the overpayment.

13

Accordingly, the Board finds that the case must be remanded to OWCP. On remand,

OWCP shall determine the proper amount of the overpayment of compensation based on the 

correct rates provided by SSA for the period during which the overpayment occurred. It shall then 

issue a new preliminary overpayment determination, with an overpayment action request form, a 

Form OWCP-20, and instructions for appellant to provide supporting financial information. After 

this, and other such further development as necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

was without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period November 1, 2005 through August 17, 2019, without an 

appropriate offset. The Board also finds that the case is not in posture for decision regarding the 

amount of the overpayment.

12 See id.

13 In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.
7

ORDER

IT IS HEREBY ORDERED THAT the September 30, 2019 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 2, 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