United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.T., Appellant

and

DEPARTMENT OF AGRICULTURE, 

NATURAL RESOURCES CONSERVATION 

SERVICE, Washington, DC, Employer

__________________________________________

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Docket No. 21-0858

Issued: December 6, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On May 19, 2021 appellant, through counsel, filed a timely appeal from an April 12, 2021 

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

Appellate Board docketed the appeal as No. 21-0858.

On April 16, 2010 appellant, then a 52-year-old administrative assistant, filed a traumatic 

injury claim (Form CA-1) alleging on that date she broke her left wrist and injured her back when 

her desk chair slipped from under her causing her to fall while in the performance of duty. She 

stopped work on March 19, 2010. On the reverse of the claim form, the employing establishment 

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 The Board notes that,following the April12, 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

indicated that appellant was enrolled in the Civil Service Retirement System (CSRS). On May 24, 

2010 OWCP accepted appellant’s claim for closed fracture of the lower end of the left radius and 

ulna.

Beginning on May 17, 2010 appellant filed a series of claims for compensation (Form

CA-7) for disability from work commencing May 2010. On the reverse side of the claim forms, 

the employing establishment indicated that she was enrolled in the Federal Employees Retirement 

System (FERS) retirement plan. In a July 22, 2010 letter, OWCP authorized Federal Employees’

Compensation Act3(FECA) wage-loss compensation for total disability on the periodic rolls, 

effective July 4, 2010. Appellant returned to full-time, light-duty work on April 4, 2011 and to 

full-duty work on July 18, 2011. Appellant stopped work again and, on March 29, 2012 OWCP 

again authorized FECA wage-loss compensation for total disability on the periodic rolls, effective 

March 24, 2012.

On December 2, 2020 OWCP issued a preliminary overpayment determination, finding 

that appellant received an overpayment of compensation in the amount of $61,558.36. It explained 

that the overpayment occurred because her Social Security Administration (SSA) age -related 

retirement benefits that she received from February 1, 2012 through October 10, 2020, were 

partially based on credits earned while working for the Federal Government, and that this portion 

of her SSA benefit constituted a prohibited dual benefits for which she was not at fault. OWCP 

requested that she complete an overpayment recovery questionnaire (Form OWCP-20) and submit 

supporting financial documentation to determine a reasonable repayment schedule and advised 

that she could request waiver of recovery. It further requested that appellant provide suppo rting 

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

pay slips, and any other records to support income and expenses. Additionally, OWCP notified 

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

written record or a prerecoupment hearing. 

On December 17, 2020 appellant requested a prerecoupment hearing before a 

representative of OWCP’s Branch of Hearings and Review and further requested waiver of the 

overpayment. The hearing was held on February 17, 2021. 

By decision dated April 12, 2021, OWCP’s hearing representative found that appellant had 

received an overpayment of compensation in the amount of $61,558.36 for the period February 1, 

2021 through October 10, 2020 because it had failed to offset her compensation payments by the 

portion of her SSA age-related retirement benefits that were attributable to federal service. He 

found appellant 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 the overpayment 

would defeat the purpose of FECA or would be against equity and good conscience. OWCP’s 

hearing representative further found that there was no evidence that appellant gave up a valuable 

right or changed in position for the worse such that recovery of the overpayment would be against 

equity and good conscience. He required recovery of the overpayment by deducting $675.00 from 

appellant’s continuing compensation payments every 28 days.

The issues on appeal before the Board relate to OWCP’s finding of an overpayment of 

wage-loss compensation benefits due to appellant’s alleged concurrent receipt of FECA wage-loss 

3

5 U.S.C. § 8101 et seq.
3

compensation and SSA age-related retirement benefits without an appropriate offset for benefits 

attributable to FERS.

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

reduced by the FERS/FECA offset amount. Since 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 age-related SSA retirement benefits, the Board has observed that OWCP uses a FERS 

Offset Calculation Worksheet.7 This calculation worksheet 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 without FERS and the effective date and rate of SSA benefits with FERS. 8 Following 

receipt of the purported SSA calculations, a preliminary determination of overpayment is issued if 

a prohibited dual benefit was received.9

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 CSRS. Other 

federal employees are not eligible 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 Offset Calculation Worksheet that OWCP sends to SSA is not applicable to nonFERS claimants and does not establish either the fact or amount of an overpayment.

Herein, the evidence of record contains conflicting evidence as to which retirement system 

was applicable to appellant. The Board therefore finds that the April 12, 2021 decision must be 

reversed.

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

Chapter 6.200.1(h) (September 2020).

5

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

6 FECA Bulletin No. 97-09 (February 3, 1997); C.T., Docket No. 21-0153 (issued July 21, 2021).

7

Id.

8

Id.

9 C.T., supra note 6.
4

IT IS HEREBY ORDERED THAT the April 12, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: December 6, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board