United States Department of Labor

Employees’ Compensation Appeals Board

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P.W., widow of A.W., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

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Docket No. 20-1131

Issued: November 30, 2022

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On May 7, 2020 appellant filed a timely appeal from an April 24, 2020 merit decision of 

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

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

ISSUES

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

overpayment of compensation in the amount of $84,820.09 for which she was without fault, as she 

concurrently received Social Security Administration (SSA) survivor benefits and FECA survivor

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the April24, 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

benefits during the period August 1, 2004 through January 4, 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 $299.00 every 28 days from 

appellant’s continuing compensation payments.

FACTUAL HISTORY

Appellant filed a claim for compensation by widow, widower, and/or children (Form 

CA-5) on March 26, 1999. She alleged that the employee, then a 44-year-old marine machinery 

mechanic, sustained severe steam burns to over 70 percent of his body on March 13, 1999 when 

he was exposed to residual hot water and steam while working on a low-pressure steam piping 

system while in the performance of duty and that he subsequently passed away as a result of this 

injury on March 15, 1999.

By decision dated April 29, 1999, OWCP accepted appellant’s claim for survivor benefits. 

It paid appellant survivor benefits on the periodic compensation rolls beginning April 25, 1999. 

The employee’s retirement coverage was indicated as under the Federal Employees 

Retirement System (FERS) in a checklist for disability roll cases dated October 25, 1999. 

On December 13, 2019 SSA forwarded a completed Federal Employees Retirement 

System (FERS)/SSA dual benefits form to OWCP. This form indicated SSA benefit rates with 

and without FERS for effective dates from August 2004 through December 2019. SSA noted on 

the form that appellant received “disabled benefits” from August 2004 through June 2016 and 

began to receive “widow’s benefits” in July 2016.

In a FERS offset overpayment calculation form dated January 10, 2020, OWCP found that 

during the period August 1 to November 30, 2004 the overpayment amount was $1,608.79, from 

December 1, 2004 to November 30, 2005 $4,957.58, from December 1, 2005 to November 30, 

2006 $5,150.11, from December 1, 2006 to June 30, 2007 $3,089.14, from July 1, 2007 to 

November 30, 2007 $2,062.98,from December 1, 2007 to November 30, 2008 $5,055.63, from 

December 1, 2008 to November 30, 2011 $15,991.81, from December 1, 2011 to November 30, 

2012 $5,538.26, from December 1, 2012 to November 30, 2013 $5,619.40, from December 1, 

2013 to November 30, 2014 $5,703.63, from December 1, 2014 to May 31, 2015 $2,892.00, from 

June 1, 2015 to November 30, 2016 $8,723.67, from December 1, 2016 to November 30, 2017 

$5,811.92, from December 1, 2017 to November 30, 2018 $5,932.25, from December 1, 2018 to 

November 30, 2019 $6,088.68, and from December 1, 2019 until January 4, 2020 $594.23.

On January 30, 2020 OWCP issued a preliminary finding that an overpayment of 

compensation in the amount of $84,820.09 had been created. It explained that the overpayment 

occurred because appellant received SSA benefits from the employee’s FERS retirement annuity 

during the period August 1, 2004 through January 4, 2020, based on credits the employee earned 

while working for the Federal Government, and that this portion of his SSA benefits was a 

prohibited dual benefit. OWCP provided appellant a copy of the overpayment calculation 

worksheet. It found appellant not at fault in the creation of the overpayment. OWCP requested 

that appellant submit a completed overpayment recovery questionnaire (Form OWCP-20) to 

determine a reasonable recovery method and advised herthat she could request waiver of recovery 
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of the overpayment. It further requested that she provide supporting financial documentation, 

including copies of income tax returns, bank account statements, bills and canceled checks, pay 

slips, and any other records, which support income and expenses. Additionally, OWCP further 

provided an overpayment action request form and notified appellant that, within 30 days of the 

date of the letter, she could request a telephone conference, a final decision based on the written 

evidence, or a prerecoupment hearing. No response was received. 

By decision dated March 3, 2020, OWCP finalized the preliminary determination of an 

$84,820.09 overpayment of compensation. It determined that appellant was without fault in the 

creation of the overpayment, but denied waiver of recovery of the overpayment because no 

financial information had been submitted. OWCP advised that $299.00 would be withheld from 

appellant’s continuing compensation benefits every 28 days beginning March 29, 2020. Itreissued 

this final decision to appellant on April 24, 2020. 

LEGAL PRECEDENT

Section 8102 of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of 

duty.3 Section 8116(d) of FECA requires that compensation benefits be reduced by the portion of 

SSA benefits based on age or death that are attributable to federal service. 4

Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount 

of compensation by the amount of SSA age-related or death benefits that are attributable to federal 

service of the employee.5 

ANALYSIS

The record establishes that appellant concurrently received FECA survivor benefits and 

SSA survivor benefits attributable to the employee’sfederal service, without an appropriate offset. 

The portion of the SSA survivor benefits earned through federal employment was part of the 

employee’s FERS retirement package, and the widow’s receipt of benefits under FECA and SSA

benefits based on death concurrently, without an appropriate offset, was a prohibited dual benefit.6 

Thus, the Board finds that OWCP properly determined that appellant received an overpayment of 

compensation.7

The Board further finds, however, that the case is not in posture for decision with regard 

to the period and amount of the overpayment. SSA provided a dual benefits form reporting SSA 

3

5 U.S.C. § 8102(a).

4

Id. at § 8116(d); E.H., Docket No. 16-1465 (issued December 19, 2016); see also JanetK. George (Angelos 

George), 54 ECAB 201 (2002).

5

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802 

(issued August 20, 2018).

6

See L.A., Docket No. 19-0708 (issued August 12, 2019); P.G.,Docket No. 13-0589 (issued July 9, 2013).

7

See W.D., Docket No. 13-1974 (issued May 15, 2014).
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rates with and without FERS for effective dates from August 2004 through December 2019. SSA 

noted on the form that appellant received “disabled benefits” from August 2004 through June 2016 

and began to receive “widow’s benefits” in July 2016. It remains unclear whether the reported 

benefit rates represent the SSA survivor benefit rates received by appellant or the employee’s SSA 

age-related retirement benefits. It also remains unclear whether appellant’s own SSA disability 

benefits were incorporated in the reported rates. Furthermore, OWCP calculated that appellant 

received an overpayment of compensation from August 1, 2004 through January 4, 2020. It 

appears from the record, however, that appellant was not in receipt of SSA survivor benefits based 

on the employee’s FERS retirement account until on or about July 2016. SSA has indicated that 

appellant first received survivor benefits after June 2016. 

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

OWCP shall recalculate the period and amount of the overpayment of compensation and issue a 

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

Form OWCP-20, and instructions for appellant to provide updated supporting documentation.

Following this, and other such further development as deemed necessary, OWCP shall issue a 

de novo decision.8

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation for which she was without fault, as she concurrently received SSA survivor

benefits and FECA survivor benefits without an appropriate offset. The Board further finds, 

however, that the case is not in posture for decision with regard to the period and amount of the 

overpayment.

8

In light of the Board’s disposition of Issue 1, Issues 2 and 3 are renderedmoot. 
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ORDER

IT IS HEREBY ORDERED THAT the April 24, 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: November 30, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board