United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.L., Appellant

and

DEPARTMENT OF AGRICULTURE, FOREST 

SERVICE, HEBER RANGER DISTRICT, 

Overgaard, AZ, Employer

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Docket No. 20-0444

Issued: October 16, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 16, 2019 appellant filed a timely appeal from a November 20, 2019 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 found that appellant received an overpayment 

of compensation in the amount of $11,956.17, for which he was not at fault, because he 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the November 20, 2019 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

concurrently received FECA wage-loss compensation benefits and Social Security Administration 

(SSA) age-related retirement benefits during the period February 1, 2017 to March 30, 2019

without 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 

$225.00 from appellant’s continuing compensation payments every 28 days.

FACTUAL HISTORY

On October 26, 1989 appellant, then a 34-year-old forestry technician, filed a traumatic 

injury claim (Form CA-1) alleging that on October 25, 1989 he twisted his lower back when 

jumping out of the way of a falling tree while in the performance of duty. OWCP accepted the 

claim for low back strain. It paid appellant wage-loss compensation on the periodic rolls effective 

March 10, 1991.

In an EN1032 form dated January 20, 2017, appellant indicated that he received SSA 

disability benefits in the amount of $372.00 monthly. In an EN1032 form dated January 25, 2018, 

he indicated that he received SSA benefits in the amount of $1,118.00 monthly. In an EN1032

form dated January 13, 2019, appellant indicated that he received SSA benefits in the amount of 

$1,117.00 monthly prior to January 3, 2019 and he received benefits of $1,149.00 monthly after 

January 3, 2019.

On February 26, 2019 OWCP provided SSA with a Federal Employees Retirement System 

(FERS)/SSA dual benefits calculation form.

On March 4, 2019 SSA completed the dual benefits calculation form, which indicated 

appellant’s SSA benefit rates with a FERS offset and without a FERS offset from February 2017 

through December 2018. Beginning February 2017, the SSA rate with FERS was $632.30 and 

without FERS was $468.00. Beginning December 2017, the SSA rate with FERS was $1,118.10 

and without FERS was $477.40. Beginning December 2018, the SSA rate with FERS was 

$1,149.30 and without FERS was $490.70.

On April 9, 2019 OWCP prepared a FERS offset calculation worksheet wherein it noted 

the calculation of appellant’s SSA offset overpayment from February 1, 2017 through 

March 30, 2019. The total overpayment was determined to be $11,956.17. OWCP found that 

appellant received an overpayment of compensation in the amount of $1,641.19 for the period 

February 1, 2017 through November 30, 2017; an overpayment in the amount of $7,709.52 for the 

period December 1, 2017 through November 30, 2018; and an overpayment in the amount of 

$2,605.45 for the period December 1, 2018 through March 30, 2019.

On April 19, 2019 OWCP issued a preliminary determination finding that an overpayment 

of compensation in the amount of $11,957.17 had been created because appellant received SSA 

age-related retirement benefits based upon his federal service, without appropriate offset at the 

same time he received FECA benefits. It explained that the overpayment occurred because he 

relied on misinformation given in writing by OWCP as to the interpretation of FECA or its 

regulations, there was documentation to substantiate that the misinformation was communicated 

to him, and there was no evidence in the case file to demonstrate that he knew or should have 

known the proper course of action to be followed. OWCP found appellant not at fault in the 
3

creation of the overpayment and forwarded an overpayment action request form and an 

overpayment recovery questionnaire (Form OWCP-20). It requested that he provide supporting 

documentation including income tax returns, bank account statements, bills and cancelled checks, 

pay slips, and any other records to support income and expenses. OWCP afforded him 30 days to 

respond.

On May 10, 2019 appellant requested a prerecoupment hearing before a representative of 

OWCP’s Branch of Hearings and Review. He requested waiver of recovery of the overpayment 

and asserted that he had claimed SSA benefits on his EN1032 forms since 2015 to avoid any 

overpayments.

In response to the Form OWCP-20, appellant indicated that he had a monthly income of 

$1,149.00 and listed total monthly expenses of $2,078.57. He advised that he had $20.00 in cash 

and $12.00 in a checking account. In an accompanying statement, appellant noted that he owed 

$500.00 to his sister to repay a loan. He advised that his water line needed repairing with costs 

between $900.00 and $1,500.00. Appellant further indicated that he had six years left on his 

Recreational Vehicle (RV) loan and submitted a statement, dated April 23, 2019, showing a 

monthly payment of $775.90 and a principal balance of $46,210.26. He also advised that his rain 

gutters needed replacing and that he needed between $4,500.00 and $5,500.00 for dental work. 

Appellant submitted a bank statement for the period March 21 through April 18, 2019, which 

showed an ending balance of $1,403.02.

A prerecoupment hearing was held on September 10, 2019. At the hearing, appellant 

testified that his only income was Social Security benefits totaling $1,149.00 and workers’

compensation benefits totaling $1,245.06. The hearing representative did not question appellant 

regarding the significant change in his reported Social Security benefits from his January 2017 

EN1032 form to his January 2018 EN1032 form. In response to questioning by the hearing 

representative, appellant confirmed his monthly expenses.

In an undated statement, appellant noted that he believed that he could repay $250.00 to 

$350.00 a month on the overpayment if OWCP did not grant a waiver. He again explained his 

financial circumstances and submitted extensive documentation of his income and expenses.

By decision dated November 20, 2019, OWCP’s hearing representative finalized the 

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

the amount of $11,957.17, for the period February 1, 2017 through March 30, 2019 because 

OWCP had failed to offset his compensation payments by the portion of his SSA benefits that 

were attributable to his federal service. She 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 or 

would be against equity and good conscience. The hearing representative noted that appellant’s

total monthly income of $2,497.82 exceeded his necessary total monthly recurring expenses of 

$2,150.77 by more than $50.00. She found that OWCP would recover the overpayment by 

deducting $225.00 every 28 days from appellant’s continuing compensation payments.

On appeal appellant explained that as of the date of the overpayment, he received SSA 

benefits based upon his deceased wife’s record, as he was entitled to a higher benefit amount based 
4

upon her record. He noted that he had notified OWCP of this change of benefits on his EN1032 

forms.

LEGAL PRECEDENT -- ISSUE 1

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

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

performance of his or her duty.3 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.4

Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the 

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

attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 states 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.6

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $11,956.17, for which he was not at fault, because 

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

benefits, based upon his federal service, without appropriate offset for the period February 1, 2017 

to March 30, 2019.

As previously noted, OWCP is required to reduce the amount of compensation by the 

amount of any SSA age-related retirement benefits that are attributable to the employee’s federal 

service.7 The record however, does not support a finding that appellant was in receipt of SSA agerelated retirement benefits attributable to his own federal service during the period of the 

overpayment. Before OWCP and on appeal appellant contends that as of the date of the 

overpayment he began receiving SSA benefits based upon his deceased wife’s Social Security

record, which entitled him to greater benefits. This allegation is supported by appellant’s report 

of SSA benefits on his EN1032 forms, which reported a substantial increase in SSA benefits in 

2018. This allegation is also supported by SSA’s March 4, 2019 dual benefits calculation form, 

which indicated a substantial increase in appellant’s SSA rate with FERS from February 2017 to

December 2017 and December 2018. OWCP premised its finding of an overpayment solely based 

 

3 5 U.S.C. § 8102(a).

4

Id. at § 8116.

5 20 C.F.R. § 10.421(d); see J.R., Docket No. 17-0181 (issued August 12, 2020); L.W., Docket No. 19-0787 (issued 

October 23, 2019).

6 FECA Bulletin No. 97-09 (February 3, 1997); see also S.M., Docket No. 20-0152 (issued August 10, 2020).

7 Supra note 5. 
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on a March 4, 2019 dual benefits calculation form from SSA. The Board finds, however, that this 

form does not establish that appellant was in receipt of SSA age-related retirement benefits 

attributable to his own federal service.8 OWCP’s preliminary determination of an overpayment 

cites to no other documentation to establish that appellant was in receipt of dual benefits from SSA 

and OWCP. As such, OWCP has failed to establish fact of overpayment.9

The Board will therefore reverse the November 20, 2019 overpayment decision.10 

CONCLUSION

The Board finds that OWCP improperly found that appellant received an overpayment of 

compensation in the amount of $11,956.17.

ORDER

IT IS HEREBY ORDERED THAT the November 20, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: October 16, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

8 See J.M., Docket No. 15-1604 (issued May 23, 2016).

9

Id.

10 As OWCP has not established fact and amount of the overpayment, the issues of waiver and recovery are moot.