United States Department of Labor

Employees’ Compensation Appeals Board

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A.A., Appellant

and

DEPARTMENT OF THE AIR FORCE, AIR 

EDUCATION & TRAINING COMMAND, 

KEESLER AIR FORCE BASE, Biloxi, MS, 

Employer

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Docket No. 21-1181

Issued: May 13, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 July 29, 2021 appellant filed a timely appeal from an April 26, 2021 merit decision of 

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

docketed the appeal as No. 21-1181.2

On March 15, 1989 appellant, then a 49-year-old food service worker, filed a traumatic 

injury claim (Form CA-1) alleging that on March 8, 1989 she sustained a muscle strain in her 

lower back when pulling a food cart off an elevator, while in the performance of duty. She stopped 

1 The Board notes that, following the April 26, 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 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). In light 

of the Board’s disposition of this case, the request for oral argument is denied.
2

work on March 15, 1989. OWCP accepted the claim for lumbosacral strain and aggravation of 

preexisting degenerative disc disease.

By letter dated October 28, 1993, the Office of Personnel Management (OPM) provided 

information to OWCP concerning appellant’s federal employment history. OPM noted that she

was employed by the employing establishment from September 1976 to May 1980. In June 1980, 

appellant accepted a temporary appointment, which was converted to reinstated career conditional 

status effective May 1981. 

The record reflects that OWCP paid appellant wage-loss compensation on the periodic 

rolls, effective June 16, 2002. 

On February 4, 2021 OWCP forwarded a Federal Employees Retirement System (FERS)/

Social Security Administration (SSA) dual benefits form to SSA to obtain information regarding 

appellant’s receipt of SSA age-related retirement benefits. It listed the computation period as 

March 8, 1989 to the present. 

On March 17, 2021 OWCP received the completed FERS/SSA dual benefits form, wherein

SSA noted that appellant had received disability benefits through May 2002, and age-related 

retirement benefits as of June 2002. SSA reported her SSA age-related retirement benefit rates 

with and without a FERS offset from June 2002 through December 2020. 

In a FERS offset overpayment calculation worksheet dated March 25, 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 $28,484.11. 

On March 25, 2021 OWCP issued a preliminary overpayment determination that appellant 

was overpaid compensation in the amount of $28,484.11 for the period June 1, 2002 through 

February 27, 2021 because the SSA/FERS offset was not applied to payments for this period. It

included the 28-day FERS offset calculations from June 1, 2002 to February 27, 2021 for her

review. OWCP determined that appellant was without fault in the creation of the overpayment. It

requested that she submit a completed overpayment recovery questionnaire (Form OWCP-20) to 

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

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

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

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

financial information within 30 days. OWCP provided an overpayment action request form and 

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. 

In an April 9, 2021 overpayment action request form, appellant requested that OWCP issue

a decision based on the written evidence. She requested a waiver as she was found to be without 

fault in the creation of the overpayment. On a completed Form OWCP-20 dated April 9, 2021, 

appellant reported monthly income of $2,069.11. She also listed her usual expenses totaling

$1,433.00 and debts paid by monthly installments totaling $228.00. Appellant indicated that she 
3

had $5.00 cash on hand, no money in checking or savings accounts, and no assets. No supporting 

financial documentation was received.

By decision dated April 26, 2021, OWCP finalized its preliminary overpayment 

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

of $28,484.11 because the FERS/SSA offset had not been applied to payments for the period 

June 1, 2002 through February 27, 2021. It further found that she was without fault in the creation 

of the overpayment, but denied waiver of recovery, because she had not provided supporting 

documents to the Form OWCP-20, including copies of income tax returns, bank account 

statements, bills and canceled checks, pay slips, or any other records to support the income and 

expenses listed on the Form OWCP-20. OWCP required recovery of the overpayment by 

deducting $350.87 every 28 days from appellant’s continuing compensation payments. 

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.3

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

reduced by the FERS/SSA 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.4 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.5 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.6 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.

7

 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.8 Following receipt of the completed form from SSA, a preliminary 

determination of overpayment is issued if a prohibited dual benefit was received. 9

3

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).

4 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, 

Chapter 6.200.1 (h), (September 2018).

5

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

6 FECA Bulletin No. 97-09 (issued February 3, 1997).

7

Id.

8

Id.

9

J.L., supra note 3.
4

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 

case record contains an October 28, 1993 letter from OPM indicating that she was employed by

the employing establishment from September 1976 to May 1980. In June 1980, appellant accepted 

a temporary appointment, which was converted to reinstated career conditional status, effective 

May 1981, prior to the effective date of FERS.

10

 OWCP has not provided evidence to establish 

that she 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 $28,484.11 for the period June 1, 2002 through February 27, 2021. Accordingly,

IT IS HEREBY ORDERED THAT the April 26, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: May 13, 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

10 See generally 5 U.S.C. § 8401 et seq.; 5 C.F.R. Part 846.

11 Id.