United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.V., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Washington, DC, Employer

__________________________________________

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Docket No. 21-0645

Issued: September 26, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 21, 2021 appellant filed a timely appeal from a March 15, 2021 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.

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation for which 

she was without fault in the amount of $1,572.18 for the period December 21, 2020 through 

January 2, 2021 because she concurrently received retirement benefits from the Office of 

Personnel Management (OPM) and FECA wage-loss compensation benefits; and (2) whether 

OWCP properly denied waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 20, 2018 appellant, then a 31-year-old financial program specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on October 18, 2018 she injured her right hip, 

right hand, fingers, wrist, neck, right shoulder, right knee, and low back when she fell on debris 

while in the performance of duty. She stopped work on October 19, 2018. OWCP accepted the 

claim for a sprain of an unspecified part of the right wrist and hand, a right hip contusion, and an 

unspecified sprain of the right wrist. It paid appellant wage-loss compensation for total disability 

on the supplemental rolls beginning December 3, 2018 and on the periodic rolls beginning 

June 23, 2019.2

A notification of personnel action, Standard Form (SF) 50) indicated that appellant had 

retired on disability effective October 26, 2019.

On October 20, 2020 appellant informed OWCP that she sought to elect disability

retirement benefits. In a December 15, 2020 response, OWCP requested that she complete an 

enclosed election of benefits form (Form CA-1105) specifying a date of election for OPM benefits.

In a December 21, 2020 Form CA-1105, appellant elected to receive benefits from OPM 

under Civil Service Retirement System (CSRS) or Federal Employees Retirement System (FERS)

in preference to any benefits to which she might be entitled to under FECA. She provided the 

effective date of her election as both October 21 and December 21, 2020.

On January 19, 2021 OWCP advised OPM that appellant had elected to receive retirement 

benefits, effective October 21, 2020, in lieu of workers’ compensation benefits under FECA. It 

indicated that OPM should commence monthly payments effective October 21, 2020 and process 

her health benefits enrollment forms. 

On January 19, 2021 OWCP issued a preliminary overpayment determination based on its 

finding that appellant had elected retirement benefits from OPM, effective October 21, 2020, but 

continued to receive FECA benefits.

On January 21, 2021 appellant advised that she had not received any benefits from OPM 

and that the date of her election of retirement benefits was December 21, 2020.

On January 26, 2021 OWCP notified OPM that appellant had elected to receive retirement 

benefits from OPM benefits in lieu of workers’ compensation benefits under FECA. It requested 

that it process the transfer of her health benefits.

Appellant, in a January 29, 2021 Form CA-1105, elected to receive retirement benefits 

from OPM, effective December 21, 2020. She also submitted an overpayment action request form 

contesting that an overpayment had occurred and requesting waiver of recovery.

On February 9, 2021 OWCP informed OPM that appellant had elected OPM benefits,

effective December 21, 2020, in lieu of FECA wage-loss compensation benefits. It advised that 

2 By decision dated April 29, 2019, OWCP denied appellant’s request for authorization for a right hip arthroplasty.
3

OPM should begin monthly annuity payments, effective December 21, 2020, and process her 

health benefit enrollment forms.

On February 9, 2021 OWCP issued a preliminary overpayment determination, which 

superseded the January 19, 2021 preliminary overpayment determination finding that appellant 

had received an overpayment of compensation in the amount of $1,572.18 for the period 

December 21, 2020 through January 2, 2021. It explained that the overpayment occurred because 

she concurrently received FECA wage-loss compensation benefits and OPM retirement benefits 

during this period, which resulted in a prohibited dual benefit payment. OWCP further advised 

appellant of its preliminary determination that she was without fault in the creation of the 

overpayment. It requested that she complete the enclosed overpayment action request form and 

overpayment recovery questionnaire (Form OWCP -20) and afforded her 30 days to respond. 

In a memorandum dated February 10, 2021, OWCP noted that appellant had requested 

waiver of recovery of the overpayment as she was without fault.

By decision dated March 15, 2021, OWCP finalized its preliminary overpayment 

determination finding that appellant received a $1,572.18 overpayment of compensation for the 

period December 21, 2020 through January 2, 2021 because she concurrently received retirement 

benefits from OPM and FECA wage-loss compensation. It indicated that it had calculated the 

overpayment based on the net wage-loss compensation it had paid her for the period December 21, 

2020 through January 2, 2021. OWCP found that appellant was without fault in the creation of 

the overpayment, but denied waiver of recovery, noting that she had not submitted a completed 

OWCP-20 form or provided any financial documentation. It determined that she should forward 

the full amount of the overpayment, $1,572.18, within 30 days, as repayment.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA3 provides that the United States shall pay compensation for the 

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

or her federal employment.4 Section 8116 of FECA defines the limitations on the right to receive 

compensation benefits.5 Section 8116(a) provides that, while an employee is receiving workers’

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from 

the United States, except in return for services actually performed or for certain payments related 

to service in the Armed Forces, including benefits administered by the Department of Veterans 

Affairs, unless such benefits are payable for the same injury or the same death being compensated 

for under FECA.6

3

Supra note 1.

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8116(a).
4

Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may 

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity. 7 

The beneficiary must elect the benefit that he or she wishes to receive. 8

OWCP’s procedures also explain that the employee must make an election between FECA 

benefits and OPM benefits. The employee has the right to elect the monetary benefit which is the 

more advantageous.9

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $1,572.18 for the period December 21, 2020 

through January 2, 2021.

On January 29, 2021 appellant notified OWCP of her election of retirement benefits from 

OPM effective December 21, 2020. OWCP, however, paid her wage-loss compensation for 

temporary total disability for the period December 21, 2020 through January 2, 2021.

A FECA beneficiary may not receive wage-loss compensation concurrently with a federal 

retirement or survivor annuity.10 The clear language of section 8116(a) of FECA, section 

10.421(a) of OWCP’s implementing regulations, and OWCP’s procedures prohibit the concurrent 

receipt of FECA wage-loss benefits and a federal annuity.11

OWCP based its overpayment findings on its determination that appellant had received 

prohibited dual OPM and FECA benefits for the period December 21, 2020 through 

January 2, 2021. However, there is no evidence of record establishing that she actually received 

OPM retirement benefits during this period.12 On January 26, 2021 OWCP advised OPM that 

appellant had elected OPM retirement benefits, but failed to specify the date of her election. On 

February 9, 2021 it notified OPM that she had elected retirement benefits, effective December 21, 

2020, in lieu of FECA wage-loss compensation benefits and requested that it commence annuity 

payments effective to that date. The Board has previously held, however, that the mere fact that a 

claimant received FECA benefits after the effective date of an OPM election will not establish 

receipt of a prohibited dual benefit.13 While the record reflects that appellant received FECA 

7

20 C.F.R. § 10.421(a).

8

Id.

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4a (January 1997);see also 

D.J., Docket No. 20-0004 (issued May21, 2020); Harold Weisman, Docket No. 93-1335 (issued March 30, 1994).

10 5 U.S.C. § 8116(a).

11 Id. at § 8116(a); 20 C.F.R. § 10.421(a); Federal (FECA) Procedure Manual,supra note 9.

12 See V.B., Docket No. 19-1874 (issued June 4, 2020); C.P., Docket No. 19-0732 (issued September 5, 2019); J.M., 

Docket No. 15-1604 (issued May 23, 2016).

13 V.C., Docket No. 20-0852 (issued January 28, 2021); E.B., Docket No. 20-0183 (issued May 20, 2020).
5

benefits for this period, the Board finds that OWCP had not established that she also received OPM 

benefits for that same period.14

Therefore, the Board finds that OWCP has not met its burden of proof to establish fact of 

overpayment.15

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $1,572.18 for the period December 21, 2020 

through January 2, 2021.

16

ORDER

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

Workers’ Compensation Programs is reversed.

Issued: September 26, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

14 The election form signed by appellant on January29, 2021 is insufficient to show that she actually began 

receiving OPM benefits at any time. See R.R.,Docket No. 18-0032, n.12(issued May2, 2018).

15 C.P., supra note 12; J.A., Docket No. 18-0259 (issued August 5, 2019).

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