United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.S., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, INDIAN HEALTH SERVICE, 

ALASKA AREA NATIVE HEALTH SERVICE, 

Sitka, AK

__________________________________________

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Docket No. 21-0028

Issued: September 3, 2021

Appearances: Case Submitted on the Record

Sara Kincaid, 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 October 5, 2020 appellant, through counsel, filed a timely appeal from a July 29, 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 over 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 July 29, 2020 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

ISSUES

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

overpayment of compensation in the amount of $101,944.10, for which she was without fault, as 

she concurrently received Social Security Administration (SSA) age-related retirement benefits 

and FECA wage-loss compensation for the period June 1, 2009 through July 20, 2019 without 

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

FACTUAL HISTORY

On April 5, 2004 appellant, then a 56-year-old medical technician, filed a traumatic injury 

claim (Form CA-1) alleging that on April 1, 2004, she sustained a back injury when drawing blood 

from an infant while in the performance of duty. OWCP initially accepted the claim for lumbar 

strain, and later expanded its acceptance of the claim to include permanent aggravation of facet 

arthropathy, lumbar degenerative spondylosis at L4-5 and L5-S1, and radiculopathy of the left 

lower extremity. Appellant stopped work on March 5, 2007. OWCP paid her wage-loss 

compensation on the supplemental rolls as of March 11, 2007 and on the periodic rolls as of 

July 8, 2007.

On May 29, 2013 OWCP provided SSA with a Federal Employees Retirement System

(FERS)/SSA dual benefits calculation form for its completion. On July 3, 2013 it received a

FERS/SSA dual benefits calculation transmittal form indicating appellant’s SSA benefit rates with 

a FERS offset and without a FERS offset from June 2009 through December 2012. Beginning 

June 2009, December 2009, and December 2010, the SSA rate with FERS was $1,045.60 and 

without FERS was $433.00. Beginning December 2011, the SSA rate with FERS was $1,083.20 

and without FERS was $448.50. Beginning December 2012, the SSA rate with FERS was 

$1,101.60 and without FERS was $456.10.

On June 1, 2018 OWCP provided SSA with a FERS/SSA dual benefits calculation form 

for its completion, but no response was received. On June 3, 2019 it again provided SSA with a 

FERS/SSA dual benefits calculation form for its completion. 

On June 24, 2019 OWCP received the FERS/SSA dual benefits transmittal form indicating 

SSA benefit rates with a FERS offset and without a FERS offset from June 2009 through 

December 2018. Beginning June 2009, December 2009, and December 2010, the SSA rate with 

FERS was $1,045.60 and without FERS was $454.60. Beginning December 2011, the SSA rate 

with FERS was $1,083.20 and without FERS was $471.00. Beginning December 2012, the SSA 

rate with FERS was $1,101.60 and without FERS was $479.00. Beginning December 2013, the 

SSA rate with FERS was $1,482.70 and without FERS was $486.20. Beginning December 2014 

and December 2015, the SSA rate with FERS was $1,507.90 and without FERS was $494.40. 

Beginning December 2016, the SSA rate with FERS was $1,512.40 and without FERS was 

$495.80. Beginning December 2017, the SSA rate with FERS was $1,542.60 and without FERS 

was $505.70. Beginning December 2018, the SSA rate with FERS was $1,585.70 and without 

FERS was $519.80.

By letter dated July 30, 2019, OWCP notified appellant that, based on information

provided by SSA regarding the amount of her age-related retirement benefits attributable to her

federal service, it had adjusted her FECA wage-loss compensation and that she would now receive 

$2,460.09 every 28 days after the SSA offset.
3

In a worksheet dated July 29, 2019, OWCP calculated a total overpayment of $101,944.10 

for the period June 1, 2009 through July 20, 2019 due to its failure to apply the SSA/FERS offset 

to her wage-loss compensation for that period.

In a preliminary determination notice dated August 8, 2019, OWCP informed appellant 

that she had received an overpayment of compensation in the amount of $101,944.10 because the 

SSA/FERS offset was not applied to payments for the period June 1, 2009 through July 20, 2019. 

It determined that she was without fault in the creation of the overpayment, because OWCP erred 

in not calculating her SSA/FERS offset and deducting the offset from her monthly compensation 

payments and it was not shown that she had actual knowledge of the calculation error. With its 

preliminary determination, OWCP provided a worksheet that used the figures provided by SSA 

noting each period of overpayment and providing calculations, resulting in a total overpayment 

amount of $101,944.10 for the period June 1, 2009 through July 20, 2019. OWCP requested that 

appellant submitted a completed overpayment recovery questionnaire (Form OWCP-20) to 

determine a reasonable repayment method, and advised her that she could request a waiver of 

recovery of the overpayment. It requested financial information, including copies of income tax 

returns, bank account statements, bills, pay slips, and any other records to support income and 

expenses. OWCP advised appellant that it would deny waiver if she failed to furnish the requested 

financial information within 30 days. It further notified her that, within 30 days of the date of the 

letter, she could contest the overpayment and request a telephone conference, a final decision based 

on the written evidence, or a prerecoupment hearing.

On August 19, 2019 appellant requested a telephonic prerecoupment hearing before a 

representative of OWCP’s Branch of Hearings and Review. She contested the fact and amount of 

the overpayment and requested waiver of recovery of the overpayment.

On August 26, 2019 appellant submitted a completed Form OWCP-20 and reported the 

income she received from SSA benefits, FECA benefits, her spouse’s employment income, and 

rental income, household monthly income was listed as totaling $11,448.09. Appellant also listed 

specific expense amounts for her monthly rent/mortgage, food, clothing, utilities, and other 

expenses, as well as debts being paid by monthly installments, monthly expenses were listed as 

totaling $8,033.73. Assets were listed as totaling $183,266.17. On January 14, 2020 appellant 

submitted supporting financial documentation regarding her reported income, expenses, assets, 

and debts.

A hearing was held on December 12, 2019.4

By decision dated February 12, 2020, the hearing representative finalized the preliminary 

determination notice dated August 8, 2019, finding that appellant had received an overpayment of 

compensation in the amount of $101,944.10 because the FERS offset was not applied to payments 

for the period June 1, 2009 through July 20, 2019. The representative further found that she was 

without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment.

The hearing representative required recovery of the overpayment by monthly payments of $900.00

with interest.

 

4 By decision dated February 4, 2020, OWCP terminated appellant’s wage-loss compensation benefits. Appellant’s 

claim remained open for payment of medical benefits. 
4

By decision dated February 19, 2020, OWCP finalized its determination that appellant had 

received an overpayment of compensation in the amount of $101,944.10 because the FERS offset 

was not applied to payments for the period June 1, 2009 through July 20, 2019. It further found 

that she was without fault in the creation of the overpayment, but denied waiver of recovery of the 

overpayment. OWCP required recovery of the overpayment by monthly payment of $900.00. It 

noted that interest would begin to accrue as of the debt of the letter at the rate of the U.S. Treasury 

Note.

On May 20, 2020 appellant, through counsel, requested a change in her repayment plan for 

the overpayment due to loss of rental income.

By decision dated July 20, 2020, a hearing representative noted that section 8128 of FECA 

provided that the Secretary of Labor, or his or her designee, may review an award for or against 

payment of compensation at any time on his or her motion. The hearing representative set aside 

the February 19, 2020 decision and remanded the case for an amended finalized overpayment 

decision, as there was a technical error regarding the interest rate. The hearing representative also 

altered the repayment schedule to $800.00 monthly in consideration of the reported loss of 

anticipated income from rental property.

By decision dated July 29, 2020, OWCP issued an amended overpayment decision that 

appellant had received an overpayment of compensation in the amount of $101,944.10 because the 

FERS offset was not applied to payments for the period June 1, 2009 through July 20, 2019. It 

further found that she was without fault in the creation of the overpayment, but denied waiver of 

recovery of the overpayment, referring to the July 20, 2020 decision. OWCP required recovery of 

the overpayment by monthly payments of $800.00.

LEGAL PRECEDENT

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.5 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.6

Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount 

of compensation by the amount of SSA benefits that are attributable to federal service of the 

employee.7 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.8

 

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

8 FECA Bulletin No. 97-09 (February 3, 1997).
5

ANALYSIS -- ISSUE 1

The Board finds that fact of overpayment has been established.

The evidence of record indicates that, while appellant was receiving compensation for 

wage-loss compensation benefits under FECA, she was also receiving SSA age-related retirement 

benefits based upon her federal service. A claimant cannot receive both wage-loss compensation 

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

period.9 The information provided by SSA established that appellant received SSA age-related 

retirement benefits that were attributable to federal service during the period June 1, 2009 through 

July 20, 2019 without appropriate offset. Consequently, the fact of overpayment has been 

established.

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

to the amount of the overpayment.

To determine the amount of the overpayment, the portion of SSA’s benefits that were 

attributable to federal service must be calculated. OWCP received two conflicting dual benefits 

calculation worksheets from SSA with respect to the specific amount of SSA age-related 

retirement benefits that were attributable to federal service.

On July 3, 2013 OWCP received a form reporting appellant’s SSA benefit rates with a 

FERS offset and without a FERS offset from June 2009 through December 2012. Beginning 

June 2009, December 2009, and December 2010, the SSA rate with FERS was $1,045.60 and 

without FERS was $433.00. Beginning December 2011, the SSA rate with FERS was $1,083.20 

and without FERS was $448.50. Beginning December 2012, the SSA rate with FERS was 

$1,101.60 and without FERS was $456.10.

On June 23, 2019 OWCP received a form indicating SSA benefit rates with a FERS offset 

and without a FERS offset from June 2009 through December 2018. Beginning June 2009, 

December 2009, and December 2010, the SSA rate with FERS was $1,045.60 and without FERS 

was $454.60. Beginning December 2011, the SSA rate with FERS was $1,083.20 and without 

FERS was $471.00. Beginning December 2012, the SSA rate with FERS was $1,101.60 and 

without FERS was $479.00. Beginning December 2013, the SSA rate with FERS was $1,482.70 

and without FERS was $486.20. Beginning December 2014 and December 2015, the SSA rate 

with FERS was $1,507.90 and without FERS was $494.40. Beginning December 2016, the SSA 

rate with FERS was $1,512.40 and without FERS was $495.80. Beginning December 2017, the 

SSA rate with FERS was $1,542.60 and without FERS was $505.70. Beginning December 2018, 

the SSA rate with FERS was $1,585.70 and without FERS was $519.80.

The figures provided on July 3, 2013 differed from the figures provided on June 23, 2019

regarding appellant’s SSA benefit rates without FERS, but OWCP did not seek clarification from 

SSA as to which set of figures was correct or why they differed. The reason for the discrepancy 

is unclear from the record. Because of the unexplained discrepancy, the Board is not in a position 

to determine whether OWCP’s finding regarding the amount of overpayment ($101,944.10) is 

 

9

Id. See also P.B., Docket No. 20-0862 (issued November 25, 2020); N.B., Docket No. 18-0795 (issued 

January 4, 2019).
6

accurate.10 On remand, OWCP shall seek clarification from SSA regarding the conflicting 

information it provided regarding the SSA payments appellant was entitled to receive without 

FERS offset. It shall then issue a new preliminary overpayment determination with an 

overpayment action request form, a Form OWCP-20, and instructions for appellant to provide 

supporting financial information. After such further development as deemed necessary, OWCP 

shall issue a de novo decision.11

CONCLUSION

The Board finds OWCP has established that appellant received an overpayment of 

compensation. The Board also finds that this case is not in posture for decision regarding the 

amount of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the July 29, 2020 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further 

action consistent with this decision.

Issued: September 3, 2021

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

 

10 See R.C., Docket No. 17-0058 (issued August 3, 2017); E.H., Docket No. 16-1465 (issued December 19, 2016); 

K.G., Docket No. 16-0553 (issued June 21, 2016).

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