United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

L.G., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRAITON, 

Miami, FL, Employer

__________________________________________

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Docket No. 21-1321

Issued: April 5, 2022

Appearances: Case Submitted on the Record

Edward Lee Daniel, for the appellant1

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On August 31, 2021 appellant, through his representative, filed a timely appeal from a 

March 25, 20212 merit decision of the Office of Workers’ Compensation Programs (OWCP). The 

Clerk of the Appellate Boards docketed the appeal as Docket No. 21-1321.

On April 16, 2007 appellant, then a 61-year-old air traffic control specialist, filed a 

traumatic injury claim (Form CA-1) alleging that he sustained an emotional condition due to three 

separate incidents during which aircraft came in close proximity to each other on April 12, 2007. 

He stopped work on April 16, 2007. OWCP accepted the claim for acute reaction to stress and 

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 The Board notes that the AB-1 Form references an April19, 2021 decision, which granted appellant’s “petition 

to withdraw” his request for a hearing before a representative of OWCP’s Branch ofHearings and Review. 
2

post-traumatic stress disorder. Itpaid appellantwage-loss compensation on the supplemental rolls 

commencing June 24, 2007 and on the periodic rolls commencing May 9, 2010. 

A notification of personnel action, Standard Form (SF) 50-B, dated June 30, 2007 noted 

appellant’s retirement plan as Code C, a code applicable to those under the Civil Service 

Retirement System and Federal Insurance Contributions Act (CSRS/FICA) CSRS Offset. 

An earnings and leave statement for the period ending September 15, 2007 noted 

deductions for full retirement under CSRS. 

In claims for compensation (Form CA-7) dated August 27 and September 3, 2009, 

appellant indicated that he was covered under the CSRS. 

In a form dated October 24, 2020, the Social Security Administration (SSA) advised 

OWCP that appellant had concurrently received Federal Employees’ Compensation Act3(FECA) 

benefits and retirement benefits through the Federal Employees Retirement System (FERS)

beginning July 2011. 

In a FERS offset overpayment calculation sheet dated December 11, 2020, OWCP 

calculated appellant’s total overpayment amount from August 1 through September 30, 2007, 

December 1 through 31, 2010, and July 1, 2011 through December 5, 2020 as $77,735.14. 

On December 14, 2020 OWCP issued a preliminary overpayment determination that 

appellant had received an overpayment of compensation, in the amount of $77,735.14, for which 

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

age-related retirement benefits for the period August 1, 2007 through December 5, 2020. It 

provided an overpayment calculation. OWCP requested that appellant submit a completed 

overpayment recovery questionnaire (Form OWCP-20) and provided him with an overpayment 

action request form containing appeal rights. It afforded him 30 days to respond. 

In an overpayment action request form dated December 28, 2020, appellant noted his 

disagreement with the preliminary overpayment determination. He asserted that his retirement 

plan was under CSRS not FERS. 

On January 25, 2021 appellant submitted a July 19, 2007 letter from the Office of 

Personnel Management (OPM) confirming that his retirement plan was CSRS. 

In a letter dated March 2, 2021, appellant disputed the overpayment asserting that he was 

covered under CSRS/FICA not FERS. 

In a letter dated March 9, 2021, OPM advised OWCP that appellant was covered under 

CSRS from May 5, 1969 through September 1, 1981 and under CSRS Offset from June 20, 1999 

through August 7, 2007. 

3

5 U.S.C. § 8101 et seq.
3

By decision dated March 25, 2021, OWCP finalized the December 14, 2020 preliminary 

overpayment determination that appellant had received an overpayment of compensation in the 

amount of $77,735.14 for the period August 1, 2007 through December 5, 2020 because it had 

failed to offset his compensation payments by the portion of his SSA age -related retirement 

benefits that were attributable to 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 failed 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 

repayment by withholding $1,818.76 from appellant’s continuing compensation payments every 

28 days.

The Board, having duly considered this matter, finds that OWCP failed to properly develop 

the underlying issue of whether appellant’s SSA age-related retirement benefits were attributable 

to federal employment.4

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.5 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.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 In identifying the fact and amount of an overpayment of compensation following a 

claimant’s receipt of SSA age-related retirement benefits, the Board has observed that OWCP uses 

a FERS Offset Calculation Worksheet.8 This calculation worksheet is sent to SSA and the 

completed form is returned to OWCP setting forth purported SSA calculations as to the effective 

date and rate of SSA benefits without FERS and the effective date and rate of SSA benefits with 

FERS.9 Following receipt of the purported SSA calculations, a preliminary determination of 

overpayment is issued if a prohibited dual benefit was received.10

4

See Order Reversing Case, D.S., Docket No. 21-0305 (issued November 12, 2021); Order Reversing Case, C.T., 

J.T., Docket No. 21-0153 (issued July 21, 2021); Order Reversing Case, W.G., Docket No. 20-1389 (issued June30, 

2021); Order Reversing Case, R.L., Docket No. 20-1333 (issued May 13, 2021); J.L., Docket No. 19-1806 (issued 

July 29, 2020);A.C., Docket No. 19-0174 (issued July 9, 2019).

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

Chapter 6.200.1(h), (September 2018).

6

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

7 FECA Bulletin No. 97-09 (February 3, 1997).

8

Id.

9

Id.

10 J.L., supra note 4.
4

The Board has observed, however, that not all federal employees are enrolled in FERS.11 

Some FECA claimants are enrolled in another retirement program, such as the 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. As such, the information 

solicited on the FERS Offset 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 covered under FERS. 

Rather, multiple documents of record establish that he was covered either under CSRS or 

CSRS/FICA (CSRS Offset) during his federal service. The Board therefore finds that the 

March 25, 2021 decision must be reversed.12

IT IS HEREBY ORDERED THAT the March 25, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: April 5, 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

11 See Order Reversing Case, W.G., supra note 4.

12 See Order Reversing Case, R.L., supra note 4; see also W.G., supranote 4.