United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.L., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

NEWBURGH SOCIAL SECURITY OFFICE, 

Newburgh, NY, Employer

__________________________________________

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Docket No. 21-0663

Issued: January 13, 2022

Appearances: Case Submitted on the Record

Sean P. Lahiff, 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 15, 2021 appellant, through counsel, filed a timely appeal from a November 27, 

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 to consider 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 November 27, 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

ISSUES

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

overpayment of compensation in the amount of $79,437.17, for the period February 27, 2006 through 

September 12, 2020, for which he was without fault, because he concurrently received Social Security 

Administration (SSA) age-related retirement benefits and FECA wage-loss compensation, without an

appropriate offset; and (2) whether OWCP properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On October 3, 2005 appellant, then a 66-year-old social insurance specialist, filed a traumatic 

injury claim (Form CA-1) alleging that on September 20, 2005 he sustained a low back injury when 

he bent and twisted numerous times to activate a numbering machine, while in the performance of 

duty. On November 29, 2005 OWCP accepted the claim for lumbar sprain/strain. It paid appellant 

wage-loss compensation on the supplemental rolls commencing February 27, 2006 and on the 

periodic rolls commencing March 19, 2006.

On April 18, 2006 appellant underwent an OWCP-authorized right L3-4 hemilaminectomy 

and partial discectomy, and “L4-5 laminectomy with in situ fusion and bone graft.”

On May 16, 2008 OWCP expanded its acceptance of the claim to include a lumbosacral disc 

herniation.

On October 12, 2009 appellant underwent an OWCP-authorized bilateral lumbar 

paravertebral injections.

On April 27, 2020 OWCP provided SSA a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form. It listed the computation period as February 27, 2006 to 

present. On July 13, 2020 OWCP received the completed dual benefits calculation form, wherein on 

June 24, 2020 SSA calculated SSA benefit rates with a FERS offset and without a FERS offset from 

January 1, 2004 through December 2019. Beginning January 1, 2004, the SSA rate with FERS was 

$520.70 and without FERS was $276.60. Beginning February 1, 2004, the SSA rate with FERS was 

$1,215.70 and without FERS was $971.60. Beginning July 1, 2004, the SSA rate with FERS was 

$1,222.70 and without FERS was $971.60. Beginning December 1, 2004, the SSA rate with FERS 

was $1,255.70 and without FERS was $997.80. Beginning January 1, 2005, the SSA rate with FERS 

was $1,308.60 and without FERS was $997.80. Beginning December 1, 2005, the SSA rate with 

FERS was $1,362.10 and without FERS was $1,038.70. Beginning January 1, 2006, the SSA rate 

with FERS was $1,418.70 and without FERS was $1,038.70. Beginning December 1, 2006, the SSA 

rate with FERS was $1,465.50 and without FERS was $1,073.00. Beginning January 1, 2007, the 

SSA rate with FERS was $1,476.10 and without FERS was $1,073.00. Beginning December 1, 2007, 

the SSA rate with FERS was $1,510.00 and without FERS was $1,097.60. Beginning December 1, 

2008, the SSA rate with FERS was $1,597.50 and without FERS was $1,161.20. Beginning 

December 1, 2011, the SSA rate with FERS was $1,655.00 and without FERS was $1,203.00. 

Beginning December 1, 2012, the SSA rate with FERS was $1,683.10 and without FERS was 

$1,223.40. Beginning December 1, 2013, the SSA rate with FERS was $1,708.20 and without FERS 

was $1,241.60. Beginning December 1, 2014, the SSA rate with FERS was $1,737.20 and without 

FERS was $1,262.70. Beginning December 1, 2016, the SSA rate with FERS was $1,742.40 and 

without FERS was $1,266.50. Beginning December 1, 2017, the SSA rate with FERS was $1,777.20 

and without FERS was $1,291.80. Beginning December 1, 2018, the SSA rate with FERS was 
3

$1,826.90 and without FERS was $1,328.00. Beginning December 1, 2019, the SSA rate with FERS 

was $1,856.00 and without FERS was $1,349.10.

On August 4, 2020 OWCP received a second completed FERS/SSA dual benefits calculation 

form, wherein on July 16, 2020, SSA calculated SSA benefit rates with a FERS offset and without a 

FERS offset from January 1, 2004 through December 2019. Beginning January 1, 2004, the SSA rate 

with FERS was $520.70 and without FERS was $971.60. Beginning December 1, 2004, the SSA rate 

with FERS was $1,255.70 and without FERS was $997.80. Beginning December 1, 2005, the SSA 

rate with FERS was $1,362.10 and without FERS was $1,038.70. Beginning December 1, 2006, the 

SSA rate with FERS was $1,465.50 and without FERS was $1,073.00. Beginning December 1, 2007, 

the SSA rate with FERS was $1,510.00 and without FERS was $1,097.60. Beginning December 1, 

2008, the SSA rate with FERS was $1,597.50 and without FERS was $1,161.20. Beginning 

December 1, 2011, the SSA rate with FERS was $1,655.00 and without FERS was $1,203.00. 

Beginning December 1, 2012, the SSA rate with FERS was $1,683.10 and without FERS was

$1,223.40. Beginning December 1, 2013, the SSA rate with FERS was $1,708.20 and without FERS 

was $1,241.60. Beginning December 1, 2014, the SSA rate with FERS was $1,737.20 and without 

FERS was $1,262.70. Beginning December 1, 2016, the SSA rate with FERS was $1,742.40 and 

without FERS was $1,266.50. Beginning December 1, 2017, the SSA rate with FERS was $1,777.20 

and without FERS was $1,291.80. Beginning December 1, 2018, the SSA rate with FERS was 

$1,826.90 and without FERS was $1,328.00. Beginning December 1, 2019, the SSA rate with FERS 

was $1,856.00 and without FERS was $1,349.10.

On August 12, 2020 OWCP requested that SSA clarify why the August 4, 2020 calculation 

form did not include the January 1, 2006 rate increase as set forth in the July 13, 2020 calculation 

form. SSA responded on August 19, 2020 that the August 4, 2020 calculation was correct and that 

OWCP should disregard the July 13, 2020 calculation form. 

In a FERS offset overpayment calculation form dated September 23, 2020, OWCP used the 

information provided by SSA in the July 13, 2020 dual benefits calculation form to calculate the 28-

day FERS offset for the relevant periods, and calculated a total overpayment in the amount of 

$79,437.17. It found that, during the period February 27 through November 30, 2006, appellant 

received an overpayment of compensation in the amount of $3,470.11. During the period 

December 1 through 31, 2006, he received an overpayment in the amount of $401.13; during the 

period January 1 through November 30, 2007, appellant received an overpayment in the amount of 

$4,483.53; during the period December 1, 2007 through November 30, 2008, he received an 

overpayment in the amount of $4,975.99; during the period December 1, 2008through November 30, 

2009, appellant received an overpayment in the amount of $5,249.98; during the period December 1, 

2009 through November 30, 2010, he received an overpayment in the amount of $5,249.98; during 

the period December 1, 2010 through November 30, 2011, appellant received an overpayment in the 

amount of $5,249.98; during the period December 1, 2011 through November 30, 2012, he received

an overpayment in the amount of $5,453.80; during the period December 1, 2012 through

November 30, 2013, appellant received an overpayment in the amount of $5,531.55; during the period 

December 1, 2013 through November 30, 2014, he received an overpayment in the amount of 

$5,614.58; during the period December 1, 2014 through November 30, 2015, appellant received an 

overpayment in the amount of $5,709.64; during the period December 1, 2015 through November 30, 

2016, he received an overpayment in the amount of $5,725.29; during the period December 1, 2016 

through November 30, 2017, appellant received an overpayment in the amount of $5,726.49; during 

the period December 1, 2017 through November 30, 2018, appellant received an overpayment in the 

amount of $5,840.80; during the period December 1, 2018 through November 30, 2019, he received 
4

an overpayment in the amount of $6,003.25; and during the period December 1, 2019 through 

September 12, 2020, appellant received an overpayment in the amount of $4,796.05.

On September 29, 2020 OWCP issued a preliminary overpayment determination that 

appellant received an overpayment of compensation in the amount of $79,437.17, for the period 

February 27, 2006 through September 12, 2020, because the SSA/FERS offset was not applied to 

payments for this period. It determined that he was without fault in the creation of the overpayment. 

OWCP requested that appellant submit a completed overpayment recovery questio nnaire (Form 

OWCP-20) to determine a reasonable repayment method, and advised him that he could request a 

waiver of recovery of the overpayment. Itfurtherrequested 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 advised appellant that it would deny waiver of recovery 

of the overpayment if he failed to furnish the requested financial information within 30 days. It 

provided an overpayment action request form and further notified him that, within 30 days of the date 

of the letter, he could contest the overpayment and request a telephone conference, a final decision 

based on the written evidence, or a prerecoupment hearing. Appellant did not respond.

By decision dated November 27, 2020, OWCP finalized the September 29, 2020 preliminary 

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

the amount of $79,437.17, for the period February 27, 2006 through September 12, 2020, because 

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

retirement benefits that were attributable to federal service and that he did not have actual knowledge 

of the calculation error. 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 as he had not responded to the 

request for financial information. OWCP required recovery of the overpayment in full.

LEGAL PRECEDENT -- ISSUE 1

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. 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 that OWCP reduce the 

amount of compensation by the amount of SSA age-related retirement benefits that are attributable to 

federal service of the employee.6 FECA Bulletin No. 97-09 provides that FECA benefits have to be 

adjusted for the FERS portion of SSA 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

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); M.R., Docket No. 20-1622 (issued June 30, 2021); S.S., Docket No. 19-1945 (issued March 25, 

2021); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

7 FECA Bulletin No. 97-09 (issued February3, 1997).
5

ANALYSIS -- ISSUE 1

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

compensation for the period February 27, 2006 through September 12, 2020, for which he was 

without fault, because he concurrently received SSA age-related retirement benefits and FECA wageloss compensation, without an appropriate offset.

Appellant received SSA age-related retirement benefits while also receiving FECA wage-loss 

compensation, without an appropriate offset, for the period February 27, 2006 through 

September 12, 2020. As noted above, a claimant cannot receive concurrent FECA wage-loss 

compensation and SSA age-related retirement benefits attributable to federal service for the same 

period.8 Therefore, fact of overpayment has been established for the period February 27, 2006 

through September 12, 2020.

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

the amount of the overpayment. SSA provided SSA/FERS offset calculations dated July 13, and 

August 4, 2020, which listed differing benefit amounts. On August 12, 2020 OWCP requested that 

SSA clarify why the August 4, 2020 dual benefits calculation form did not include the January 1, 

2006 rate increase as set forth in the July 13, 2020 dual benefits calculation form. Although SSA 

indicated in an August 19, 2020 response that OWCP should rely on the August 4, 2020 dual benefits 

calculation form, OWCP instead based its overpayment determination on the July 13, 2020 dual 

benefits calculation form that SSA noted was incorrect. The Board finds, therefore, that the case is 

not in posture for decision with regard to the amount of the overpayment in question.9

The case will be remanded to OWCP for recalculation of the amount of the overpayment, to 

be followed by a new preliminary determination of overpayment and a de novo overpayment 

decision.10

CONCLUSION

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

compensation for the period February 27, 2006 through September 12, 2020, for which he was 

without fault, because he concurrently received SSA age-related retirement benefits and FECA wageloss compensation, without an appropriate offset. The Board further finds, however, that this case is 

not in posture for decision regarding the amount of the overpayment. 11

8

See id.; M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., Docket No. 18-0795 (issued January 4, 

2019); A.C., Docket No. 18-1550 (issued February 21, 2019).

9 D.D., Docket No. 20-1172 (issued September 29, 2021).

10 Id. Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Overpayment Action, Chapter 6.200.1 (September 2018).

11 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
6

ORDER

IT IS HEREBY ORDERED THAT the March 15, 2021 merit decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: January 13, 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