United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.S., Appellant

and

DEPARTMENT OF LABOR, EMPLOYMENT 

STANDARDS ADMINISTRATION, 

San Francisco, CA, Employer

__________________________________________

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Docket No. 22-1071

Issued: April 11, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 5, 2022 appellant filed a timely appeal from a March 16, 2022 merit decision and 

a May 9, 2022 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). Appellant 

asserted that oral argument was necessary so that she could argue that the basis of the overpayment was incorrect.

The Board, in exercising its discretion, denies her request for oral argument because the arguments on appeal can 

adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal would further 

delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied, and 

this decision is based on the case record as submitted to the Board.
2

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

ISSUES

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

overpayment of compensation in the amount of $24,990.63 for the period January 1, 2019 through 

June 19, 2021, for which she was without fault, because she concurrently received FECA wageloss compensation and Social Security Administration (SSA) age-related retirement benefits,

without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the 

overpayment; (3) whether OWCP properly required recovery of the overpayment by deducting 

$752.00 from appellant’s continuing compensation payments every 28 days; and (4) whether 

OWCP properly denied her request for a prerecoupment hearing.

FACTUAL HISTORY

On April 21, 2006 appellant, then a 50-year-old secretary, filed a traumatic injury claim 

(Form CA-1) alleging that on April 20, 2006 she injured her right elbow and tailbone when she

fell to the floor, while in the performance of duty, when the chair she was attempting to sit in rolled 

away. She stopped work on April 20, 2006. The claim form noted that appellant’s retirement 

system coverage was Federal Employees Retirement System (FERS). OWCP accepted the claim 

for buttock, right elbow, and right forearm contusions. It subsequently expanded acceptance of 

the claim to include lumbar sprain, left hip trochanteric bursitis, lumbar L3-4 stenosis, and L4-5

spondylolisthesis. OWCP paid appellant wage-loss compensation for total disability on the 

supplemental rolls, effective March 27, 2018, and on the periodic rolls, effective April 29, 2018.

On December 30, 2020 OWCP sent a FERS/SSA dual benefits calculation form to SSA 

for completion. 

On February 2, 2021 SSA notified OWCP that appellant’s monthly age-related retirement 

benefit rates with FERS were: $1,622.00, effective January 2019; $1,648.00 effective 

December 2019; and $1,669.00, effective December 2020. Without FERS, her monthly agerelated retirement benefit rates were: $795.00 effective January 2019; $808.00 effective 

December 2019; and $818.00, effective December 2020. SSA advised that appellant received 

disability benefits August 2018 through December 2019.

In a June 30, 2021 FERS offset overpayment calculation memorandum, OWCP calculated 

appellant’s FERS/SSA offset for each period from January 1, 2019 through July 16, 2021 and the 

amount of the overpayment for each period. It found that, from January 1 through November 30, 

2019, she received an overpayment in the amount of $9,216.25; from December 1, 2019 through 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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.
3

November 30, 2020, she received an overpayment in the amount of $10,135.32; and from 

December 1, 2020 through July 16, 2021, she received an overpayment in the amount of 

$6,396.54. OWCP added the amounts to find a total overpayment of $25,748.11.

In a June 30, 2021 letter, OWCP advised appellant that it was reducing her wage-loss 

compensation, effective July 17, 2021, by the amount of her SSA benefits attributable to her

federal service. It indicated that it would offset $851.00 from her continuing compensation 

payments, resulting in a new net wage-loss compensation payment amount of $3,084.74.

On June 30, 2021 OWCP issued a preliminary overpayment determination, finding that an 

overpayment of compensation in the amount of $25,748.11 had been created because appellant 

received wage-loss compensation payments for the period January 1, 2019 through July 16, 2021 

that had not been reduced to offset her SSA age-related retirement benefits attributable to her 

federal service. It determined that she was without fault in the creation of the overpayment. 

OWCP requested that appellant submit a completed overpayment recovery questionnaire (Form 

OWCP-20) to determine a reasonable payment method, and advised her that she could request 

waiver of recovery of the overpayment. It further requested that she provide supporting financial 

documentation, including copies of income tax returns, bank account statements, bills, and 

canceled checks, pay slips, and any other records, which support income and expenses. 

Additionally, OWCP provided an overpayment action request form and notified appellant that, 

within 30 days of the date of the letter, she could request a final decision based on the written 

evidence or a prerecoupment hearing. No response was received.

In an updated FERS offset overpayment calculation memorandum dated March 16, 2022 

OWCP calculated appellant’s FERS/SSA offset for each period from January 1, 2019 through 

June 19, 2021 and the amount of the overpayment for each period. It found that, from January 1 

through November 30, 2019, she received an overpayment in the amount of $9,216.20; from 

December 1, 2019 through November 30, 2020, she received an overpayment in the amount of 

$10,135.38; and from December 1, 2020 through June 19, 2021, she received an overpayment in 

the amount of $5,639.04. OWCP added the amounts to find a total overpayment of $24,990.63.

By decision dated March 16, 2022, OWCP finalized the preliminary overpayment 

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

of $24,990.63 for the period January 1, 2019 through June 19, 2021 because it failed to offset her 

compensation payments by the portion of her SSA age-related retirement benefits that were 

attributable to her federal service. It found that she was without fault in the creation of the 

overpayment, but denied waiver of recovery of the overpayment, noting that she had not responded 

to the preliminary overpayment determination. OWCP required recovery of the overpayment by 

deducting $752.00 from appellant’s continuing compensation payments every 28 days.

On April 9, 2022 appellant requested a prerecoupment hearing, arguing that she was 

without fault and, thus, was not responsible for the creation of the overpayment. She asserted that 

OWCP erroneously issued the March 16, 2022 overpayment determination without a hearing.

By decision dated May 9, 2022, OWCP denied appellant’s request for a prerecoupment 

hearing as it was made after the final overpayment determination.
4

LEGAL PRECEDENT -- ISSUE 1

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.4 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.5

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

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

federal service of the employee.6 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.7

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation, for which she was without fault, because she concurrently received FECA wageloss compensation benefits and SSA age-related retirement benefits without an appropriate offset. 

OWCP paid appellant wage-loss compensation for total disability, effective 

March 27, 2018. The record indicates that appellant received SSA age-related retirement benefits 

beginning January 2020. As noted, a claimant cannot receive concurrent FECA compensation for 

wage-loss and SSA age-related retirement benefits attributable to federal service.

8

 The 

information provided by SSA indicated that a portion of appellant’s SSA age-related retirement 

benefits were attributable to her federal service. Accordingly, the Board finds that fact of 

overpayment has been established.

9

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

to the period and amount of the overpayment. To determine the amount of the overpayment, the 

portion of SSA age-related retirement benefits attributable to federal service must be calculated. 

SSA provided appellant’s SSA age-related retirement benefit rates with and without FERS for the 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.

6 20 C.F.R. § 10.421(d); see T.T., Docket No. 20-1257 (issued July 29, 2022); L.W., Docket No. 19-0787 (issued 

October 23, 2019); S.M., Docket No. 17-1802 (issued August 20, 2018).

7 FECA Bulletin No. 97-09 (issued February 3, 1997); see also T.T., id.; N.B., Docket No. 18-0795 (issued 

January 4, 2019).

8 Supra note 6. See F.K., Docket No. 20-1609 (issued June 24, 2021); A.C., Docket No. 18-1550 (issued 

February 21, 2019).

9 See T.T., supra note 7; L.K., Docket No. 20-1574 (issued June 23, 2021); S.H., Docket No. 20-1157 (issued 

December 23, 2020).
5

period January 1, 2019 through June 19, 2021. However, SSA noted on the February 2, 2021 form 

that appellant received disability benefits from August 2018 through December 2019. It, 

therefore, remains unclear whether the reported benefit rates represent appellant’s SSA disability 

benefits or her SSA age-related retirement benefits. 

Accordingly, the Board finds that this case must be remanded to OWCP.10 On remand,

OWCP shall recalculate the period and amount of the overpayment of compensation and issue a 

new preliminary overpayment determination, with an overpayment action request form, a new 

Form OWCP-20, and instructions for appellant to provide updated supporting documentation. 

Following this, and other such further development as deemed necessary, OWCP shall issue a 

de novo decision.11

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment 

of compensation, for which she was without fault, as she concurrently received SSA age-based 

retirement benefits and FECA wage-loss compensation without appropriate offset. The Board 

further finds, however, that the case is not in posture for decision with regard to the period and 

amount of the overpayment. 

10 See P.W. (A.W.), Docket No. 20-1131 (issued November 30, 2022).

11 In light of the Board’s disposition of Issue 1, Issues 2, 3, and 4 are rendered moot. 
6

ORDER

IT IS HEREBY ORDERED THAT the March 16, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board. 

Issued: April 11, 2023

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