United States Department of Labor

Employees’ Compensation Appeals Board

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B.W., Appellant

and

U.S. POSTAL SERVICE, PROCESSING &

DISTRIBUTION CENTER, Charleston, SC, 

Employer

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Docket No. 22-0042

Issued: July 29, 2022

Appearances: Case Submitted on the Record

Carl H. Jacobson, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On October 3, 2021 appellant, through counsel, filed a timely appeal from a June 23, 2021 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the 

Appellate Boards docketed the appeal as 22-0042.3

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 Appellant passed away after the filing of this appeal. As such, a substitute appellantis required to carry the appeal 

forward as the Board’s jurisdiction was invoked during her lifetime. See D.V., Docket No. 20-1291 (issued 

September 14, 2021; N.D., Docket No. 14-1757 (issued June 2, 2015); Albert F. Kimbrell, 4 ECAB 662, 666 (1952). 

Accordingly, counsel is recognized by the Board as the substitute appellant for the purposes of carrying the appeal 

forward.

3 The Board notesthat, followingthe June 23, 2021 decision, OWCP receivedadditional evidence. However, the 

Board’s Rules of Procedures 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.
2

On May 19, 1995 appellant, then a 56-year-old mail processor, filed an occupational 

disease claim (Form CA-2) alleging that she sustained left hand carpal tunnel syndrome as a result 

of pushing all-purpose containers weighing over 1,000 pounds, lifting heavy trays from an optical 

character recognition, and placing trays on and off the machines while in the performance of duty. 

She noted that she first became aware of her condition and its relationship to her federal 

employment on April 1, 1995. On June 8, 1995 appellant stopped work. On August 8, 1995 

OWCP accepted appellant’s claim for bilateral hand carpal tunnel syndrome. On March 1, 1996 

appellant returned to limited-duty work. OWCP paid appellant wage-loss compensation on the 

daily rolls for the period June 8, 1995 through March 25, 2000 and on the periodic rolls as of 

February 24, 2002.

On April 16, 2021 the Social Security Administration (SSA) forwarded a completed 

Federal Employees Retirement System (FERS)/SSA dual benefits form to OWCP, which indicated 

that appellant had been in receipt of SSA age-related retirement benefits since December 2002. 

SSA reported her SSA age-related retirement benefit rates with and without a FERS offset for the 

period December 2002 through December 2020.

In a FERS offset overpayment calculation worksheet dated May 17, 2021, OWCP used the 

information provided by SSA to calculate the 28-day FERS offset for the relevant periods and 

calculated a total overpayment in the amount of $42,673.51.

In a preliminary overpayment determination dated May 17, 2021, OWCP notified 

appellant that she had received an overpayment of compensation in the amount of $42,673.51 

because her wage-loss compensation benefits had not been reduced for the period May 1, 2002 

through April 24, 2021 by the portion of her SSA age-related retirement benefits that were 

attributable to her federal service. It calculated the overpayment amount by determining the 

difference between her SSA amount with and without FERS for the stated period and adding this 

amount to find a total overpayment of $42,673.51. OWCP further advised appellant of its 

preliminary determination that she was without fault in the creation of the overpayment and 

requested that she complete an overpayment action request form and an overpayment recovery 

questionnaire (Form OWCP-20), and submit supporting financial documentation, including copies 

of income tax returns, bank account statements, bills and canceled checks, pay slips, and any other 

records to support income and expenses. Additionally, it notified her that, she could request a 

telephone conference, a final decision based on the written evidence, or a prerecoupment hearing. 

OWCP allotted 30 days for appellant to respond. No response was received.

OWCP, by decision dated June 23, 2021, finalized the preliminary overpayment 

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

$42,673.51 for the period May 1, 2002 through April 24, 2021 for which she was not at fault, 

because her FECA compensation payments were not offset by the portion of her SSA age -related 

retirement benefits attributable to her federal service. It found that she was without fault in the 

creation of the overpayment, but denied waiver of recovery because the evidence of record was 

insufficient to establish that recovery of an overpayment would defeat the purpose of FECA or 

would be against equity and good conscience. OWCP noted that appellant did respond to its 

preliminary overpayment determination. It required recovery of the overpayment by deducting 

$415.51 from her continuing compensation payments.
3

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

the underlying issue of what portion, if any, of appellant’s SSA age-related retirement benefits 

were attributable to federal service.4

OWCP’s procedures provide that an overpayment occurs when FECA compensation is not 

reduced by an appropriate offset. Since the SSA will not report an offset amount until after the 

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/SSA dual benefits form.8 This form 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 

with and without FERS.9 Following receipt of the completed form from SSA, 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. 

Some FECA claimants are enrolled in another retirement program, such as the Civil Service 

Retirement System. 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. Thus, 

the information solicited on the FERS/SSA dual benefits form 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 enrolled in FERS. The 

record contains correspondence from a claims examiner to the employing establishment dated 

October 17, 1995, referencing the fact that appellant was employed on a temporary or part-time 

basis. The record also contains memoranda dated May 20, 1997 and December 6, 1999 from 

claims examiners, indicating that appellant had only casual or temporary appointments with the 

employing establishment. Additionally, in a rehabilitation report dated December 31, 2000, the 

4

See 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 (issued February 3, 1997).

8

Id.

9

Id.

10 J.L., supra note 4.
4

rehabilitation counselor noted that appellant had worked in temporary and/or transitional positions 

with the employing establishment. OWCP has not provided evidence to establish that appellant 

was enrolled in FERS or that she subsequently elected FERS coverage.11 The Board thus finds 

that OWCP improperly determined that appellant received an overpayment of compensation in the 

amount of $42,673.51 for the period May 1, 2002 through April 24, 2021. Accordingly,

IT IS HEREBY ORDERED THAT the June 23, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: July 29, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

11 Id.