United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.T., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

BARKSDALE AIR FORCE BASE, LA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-0225

Issued: May 12, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 30, 2021 appellant filed a timely appeal from a November 1, 2021 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 determined that appellant received an 

overpayment of compensation in the amount of $39,065.45 for the period January 1, 2017 through 

September 11, 2021 for which he was without fault, because he concurrently received FECA 

wage-loss compensation benefits and Social Security Administration (SSA) age-related retirement 

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

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the November 1, 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

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

deducting $725.00 from appellant’s continuing compensation payments every 28 days. 

FACTUAL HISTORY

This case has previously been before the Board on a different issue. 3 The facts and 

circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are as follows.

On September 8, 2006 appellant, then a 55-year-old aircraft ordinance systems mechanic, 

filed a traumatic injury claim (Form CA-1) alleging that on August 28, 2006 he pulled a muscle in 

his low back when loading a practice bomb while in the performance of duty. OWCP accepted 

the claim for lumbar sprain. It subsequently expanded the acceptance of the claim to include 

lumbosacral spondylosis without myelopathy, other symptoms referable to the back, and thoracic 

spondylosis without myelopathy. 

In a June 2, 2007 claim for compensation (Form CA-7), the employing establishment

advised that appellant was covered under the Federal Employees Retirement System (FERS).

4

OWCP paid appellant wage-loss compensation for total disability on the supplemental rolls 

effective May 9, 2007, and on the periodic rolls effective September 2, 2007.

On June 29, 2021 OWCP sent a FERS/SSA dual benefits form to SSA for its completion. 

On September 18, 2021 SSA provided a completed FERS/SSA dual benefits form, which 

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

period January 2017 through December 2020. It reported that beginning January 1, 2017, 

appellant’s SSA rate with FERS was $2,074.60 and without FERS was $1,407.50, beginning 

December 2017, his SSA rate with FERS was $2,116.00 and without FERS was $1,435.60, 

beginning December 2018, his SSA rate with FERS was $2,175.20 and without FERS was 

$1,475.70, beginning December 2019, his SSA rate with FERS was $2,210.00 and without FERS 

was $1,499.30, and beginning December 2020, his SSA rate with FERS was $2,238.80 and 

without FERS was $1,518.70. 

A September 21, 2021 computation adjustment sheet generated the amount that OWCP 

should have offset each 28-day compensation period from January 7, 2017 through 

September 11, 2021.

In a September 21, 2021 letter, OWCP informed appellant that it would begin deducting 

the portion of SSA age-related retirement benefits attributable to his federal service from his FECA 

wage-loss compensation. It found that with the SSA offset, he was entitled to net compensation 

every 28 days of $2,902.36.

In a preliminary overpayment determination dated September 24, 2021, OWCP notified 

appellant of its preliminary finding that he had received an overpayment of compensation in the 

3 Docket No. 09-2312 (issued June11, 2010).

4 An October 11, 2007 notification of personnel action Standard Form (SF)50-B indicated that appellant had 

retirement coverage under FERS. 
3

amount of $39,065.45 for the period January 1, 2017 through September 11, 2021 because he 

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

without an appropriate offset. It further advised him of its preliminary determination that he was 

at 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 him that he could request waiver of recovery of the overpayment. It further requested 

that he provide supporting financial documentation, including copies of income tax returns, bank 

account statements, bills, and canceled checks, pay slips, and any other records supporting income 

and expenses. Additionally, OWCP provided an overpayment action request form and notified 

appellant that, within 30 days of the date of the letter, he could request a telephone conference, a 

final decision based on the written evidence, or a prerecoupment hearing.

In an October 21, 2021 overpayment action request form, appellant requested a decision 

on the written evidence. He contended that an overpayment had not occurred and requested waiver 

of recovery. Appellant contended that his compensation was exempt from an SSA offset because 

of the “windfall elimination provision.” He submitted information regarding the windfall 

elimination provision. Appellant submitted a completed Form OWCP-20.5 

By decision dated November 1, 2021, OWCP finalized its preliminary overpayment 

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

of $39,065.45 for the period January 1, 2017 through September 11, 2021 because it had failed to 

offset his compensation payments by the portion of his SSA age-related retirement benefits that 

were attributable to his federal service. It found appellant without fault in the creation of the 

overpayment, but denied waiver of recovery of the overpayment. OWCP required recovery of the 

overpayment by deducting $725.00 from appellant’s continuing compensation payments every 28 

days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA6 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.7 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.8

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.9 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 

5 The OWCP-20 form is largely illegible. 

6

Supra note 1.

7

5 U.S.C. § 8102.

8

Id. at § 8116.

9

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August20, 2018).
4

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. 10

ANALYSIS -- ISSUE 1

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

of compensation.

OWCP paid appellant wage-loss compensation for total disability effective May 9, 2007. 

Appellant received SSA age-related retirement benefits from January 1, 2017 through 

September 11, 2021. A claimant cannot concurrently receive FECA wage-loss compensation and 

SSA age-related retirement benefits attributable to federal service for the same period. 11 The 

information provided by SSA established that appellant received SSA age-related retirement 

benefits that were attributable to federal service during the period January 1, 2017 through 

September 11, 2021. The Board thus finds that fact of overpayment is established.

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

to the amount of the overpayment. To determine the amount of the overpayment, the portion of 

SSA age-related retirement benefits that were attributable to federal service must be calculated. 

OWCP received documentation from SSA with respect to the specific amount of SSA age-related 

retirement benefits that were attributable to federal service. SSA provided appellant’s age-related 

retirement benefit rates with FERS and without FERS for the period January 1, 2017 through 

September 11, 2021. It provided a computer worksheet showing the amount that it should have 

offset for each 28-day period from January 1, 2017 through September 11, 2021; however, the 

mathematical calculations performed by the computer program are not reproducible from the 

information provided.12 OWCP, however, did not set forth its calculations of the overpayment on 

a FERS offset overpayment calculation worksheet. 

Therefore it remains unclear how OWCP calculated the amount of the overpayment. The 

Board has held that, in overpayment cases, it is essential that OWCP provide the recipient of 

compensation with a clear statement showing how the overpayment was calculated. 13 

Accordingly, the Board finds that the case must be remanded to OWCP to set forth its calculations 

of the overpayment created for the period January 1, 2017 through September 11, 2021. OWCP

should then 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, itshall 

issue a de novo decision.14

On appeal, appellant contends that he did not receive an overpayment of compensation 

because of the windfall elimination provision. However, the windfall elimination provision does 

10 FECA Bulletin No. 97-09 (issued February3, 1997); seealso N.B., Docket No. 18-0795 (issued January 4, 2019).

11 20 C.F.R. § 10.421(d); L.D., Docket No. 21-0447 (issued September 28, 2021); T.B., Docket No. 18-1449 (issued 

March 19, 2019); S.M., supranote 9.

12 See J.K., Docket No 20-1545 (issued July 27, 2021).

13 See J.V., Docket No. 20-0952 (issued February 2, 2022); S.H., Docket No. 20-1189 (issued January 27, 2021).

14 See G.R., Docket No. 21-0209 (issued December 20, 2021); L.D., supra note 11.
5

not affect employees covered under FERS as they contribute to SSA. As discussed, OWCP’s 

regulations require it to offset from a claimant’s wage-loss compensation the amount of SSA agerelated retirement benefits that are attributable to the employee’s federal service.15

CONCLUSION

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

of compensation because he concurrently received SSA age-related retirement benefits while also 

receiving FECA benefits, without an appropriate offset. The Board further finds, however, that 

the case is not in posture for decision regarding the amount of the overpayment. 16

ORDER

IT IS HEREBY ORDERED THAT the November 1, 2021 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: May 12, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

15 Supra note 10.

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