United States Department of Labor

Employees’ Compensation Appeals Board

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T.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

Buffalo, NY, Employer

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Docket No. 21-1376

Issued: April 8, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On September 14, 2021 appellant filed a timely appeal from an August 6, 2021 merit 

decision of the Office of Workers’Compensation Programs (OWCP).1 The Clerk of the Appellate 

Boards docketed the appeal as No. 21-1376.

On June 29, 1993 appellant, then a 33-year-old temporary carpenter, filed a traumatic 

injury claim (Form CA-1) alleging that on that dated he strained his left knee when he depressed 

the foot pedal of a metal shear while in the performance of duty. OWCP initially accepted this 

claim for left knee strain, and on April 10, 2013 expanded acceptance of the claim to include tear 

of the left medial meniscus, and osteoarthritis of the right lower leg. On February 16, 2016 it 

further expanded acceptance of his claim to include consequential dental and somatoform 

disorders. Appellant was terminated from the employing establishment on March 31, 1994. He 

1 The Board notes that,following the August 6, 2021 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

was rehired on November 13, 1994 and stopped work on August 14, 1995. OWCP paid appellant 

wage-loss compensation on the periodic rolls as of August 14, 1995.2

On June 9, 2019 OWCP received a completed FERS/SSA dual benefits form from SSA, 

which reported that appellant had been in receipt of SSA age-related retirement benefits since 

April 20, 2016. The form listed his SSA age-related retirement benefit rates with FERS and 

without FERS as follows: beginning April 2016, his monthly SSA rate with FERS was $1,067.30 

and without FERS was $786.40; beginning December 2016, his monthly SSA rate with FERS was 

$1,070.50 and without FERS was $788.70; beginning December 2017, his monthly SSA rate with 

FERS was $1,091.90 and without FERS was $804.40; beginning December 2018, his monthly 

SSA rate with FERS was $1,122.40 and without FERS was $826.90; beginning December 2019, 

his monthly SSA rate with FERS was $1,140.30 and without FERS was $840.10; and beginning 

December 2020 his monthly SSA rate with FERS was $1,155.10 and without FERS was $851.00.

OWCP completed a FERS offset overpayment calculation worksheet on June 17, 2021. It 

determined the overpayment amount by multiplying the daily FERS offset amount by the number 

of days in each period from April 1, 2016 through May 22, 2021, which resulted in a total 

overpayment of $19,147.48. The form indicated that: from April 1 through November 30, 2016, 

appellant received an overpayment in the amount of $2,259.55; from December 1, 2016 through 

November 30, 2017, appellant received an overpayment in the amount of $3,390.89; from 

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

of $3,459.48; from December 1, 2018 through November 30, 2019, appellant received an 

overpayment in the amount of $3,555.74; from December 1, 2019 through November 30, 2020, 

appellant received an overpayment in the amount of $3,622.19; and from December 1, 2020

through May 22, 2021 appellant received an overpayment in the amount of $2,859.63

On June 17, 2021 OWCP issued a preliminary overpayment determination finding that 

appellant had received an overpayment of compensation in the amount of $19,147.48 because he 

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

benefits for the period April 1, 2016 through May 22, 2021 for which he was without fault. It 

requested that he complete an enclosed overpayment recovery questionnaire (Form OWCP-20) 

and submit supporting financial documentation, including income tax returns, bank account 

statements, bills and cancelled checks, pay slips, and any other records to support h is reported 

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

advised appellant that, within 30 days of the date of the letter, he could request a final decision 

based on the written record or request a prerecoupment hearing.

In an overpayment action request form dated July 15, 2021, appellant requested waiver of 

recovery of the overpayment. He also requested that OWCP make a decision based on the written 

evidence. Appellant provided the first page of a Form OWCP-20.

2 By decision dated February 4, 1997, OWCP issued a retroactive loss of wage-earning capacity (LWEC) decision 

finding that the position of carpenter fairly and reasonably represented appellant’s wage-earning capacity with no loss 

of earnings. Appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review. 

By decision dated August27, 1997, the hearing representative reversed the February4, 1997 LWEC decision. OWCP 

reentered appellant on the periodic rolls.
3

By decision dated August 6, 2021, OWCP finalized the preliminary overpayment 

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

$18,032.123for the period April 1, 2016 through May 22, 2021. It found that he was without fault 

in the creation of the overpayment. OWCP denied waiver of recovery of the overpayment as 

appellant had not fully completed the Form OWCP-20 nor provided supporting financial 

documentation, so that there was insufficient evidence to establish that recovery would defeat the 

purpose of FECA or be against equity and good conscience. It required recovery of the 

overpayment by deducting $650.83 every 28 days from appellant’s continuing compensation 

payments beginning September 12, 2021.

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 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 

3 The Board notes that OWCP indicated that the overpayment amount was $18,032.71. However, this appears to 

be a typographical error as OWCP’s detailed calculations showan overpayment of $18,032.12. 

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 May13, 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.
4

receipt of the purported SSA calculations, a preliminary determination of overpayment is issued if 

a prohibited dual benefit was received.10

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, the documents of record establish that appellant was not under a federal retirement 

program. His March 2, 1999 Notification of Personal Action (Form SF-50) notes that appellant 

was a temporary employee covered only under the Federal Insurance Contributions Act (FICA). 

As OWCP has not established that he concurrently received SSA age-related retirement benefits, 

based in part on his service, and FECA disability compensation with appropriate offset, it has not 

established that he received an overpayment of compensation in the amount of $18,032.12 for the 

period April 1, 2016 through May 22, 2021. The Board, therefore, finds that the August 6, 2021 

decision must be reversed.12 

10 J.L., supra note 4.

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.
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IT IS HEREBY ORDERED THAT the August 6, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: April 8, 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