United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.P., Appellant

and

U.S. POSTAL SERVICE, LEAKESVILLE POST 

OFFICE, Leakesville, MS, Employer

__________________________________________

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Docket No. 22-0908

Issued: November 23, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 24, 2022 appellant filed a timely appeal from a May 2, 2022 merit decision of the 

Office of Workers’ Compensation Programs. 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 $2,565.02 during the period October 30 through 

December 5, 2020 as she concurrently received Office of Personnel Management (OPM) 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the May 2, 2022 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

retirement benefits and FECA wage-loss compensation; and (2) whether OWCP properly found 

that appellant was at fault in the creation of the overpayment and thereby preclud ing waiver of 

recovery of the overpayment.

FACTUAL HISTORY

On June 2, 2009 appellant, then a 58-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on May 30, 2009 she sustained a neck and shoulder injury as a result of 

reaching for a parcel wedged between two others while in the performance of duty. She stopped 

work on June 2, 2009 and did not return. OWCP accepted the claim for cervical intervertebral 

disc degeneration and a right complete rotator cuff rupture. It paid appellant wage-loss 

compensation on the supplemental rolls beginning July 16, 2009 and on the periodic rolls 

beginning April 11, 2010.

On November 23, 2020 appellant completed a Form CA-1105 indicating her election of 

OPM retirement benefits effective October 30, 2020. The case record reflects that OWCP received 

the form on December 2, 2020. OWCP continued to pay appellant wage-loss compensation for 

temporary total disability for the period October 30 through December 5, 2020.

On December 17, 2020 OWCP informed OPM that appellant had elected to receive OPM 

retirement annuity benefits effective October 30, 2020 in lieu of FECA wage-loss compensation, 

requested reimbursement from OPM in the amount of $2,865.02 for the period October 30 through 

December 5, 2020, and requested that OPM commence retirement annuity payments effective 

October 30, 2020.

On March 31, 2022 OWCP issued a preliminary overpayment determination that appellant 

received an overpayment of compensation in the amount of $2,865.02 for the period October 30 

through December 5, 2020. It explained that the overpayment was the result of her receipt of 

FECA wage-loss compensation through December 5, 2020 after having elected receipt of OPM 

retirement benefits effective October 30, 2020. OWCP provided a calculation of the overpayment 

and found that appellant was with fault in its creation as she accepted a payment she knew, or 

reasonably should have known, to be incorrect. It notified her 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. OWCP did not receive a response from appellant.

By decision dated May 2, 2022, OWCP finalized the preliminary overpayment 

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

$2,565.02 for the period October 30 through December 5, 2020 for which she was at fault. It 

explained that the overpayment occurred because she received both FECA compensation and OPM 

retirement benefits for the period October 30 through December 5, 2020. OWCP reaffirmed the 

finding that appellant was at fault in the creation of the overpayment.
3

LEGAL PRECEDENT -- ISSUE 1

Section 8102 of FECA 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 duty.3 

Section 8116 of FECA defines the limitations on the right to receive compensation 

benefits.4 It provides that, while an employee is receiving workers’ compensation benefits, he or 

she may not receive salary, pay, or remuneration of any type from the United States, except in 

return for services actually performed or for certain payments related to service in the Armed 

Forces, including benefits administered by the Department of Veterans Affairs, unless such 

benefits are payable for the same injury or the same death being compensated for under FECA.5 

Section 10.421(a) of OWCP’s implementing regulations provide that a beneficiary may 

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity. 6 

The beneficiary must elect the benefit that he or she wishes to receive.7

OWCP’s procedures also explain that the employee must make an election between FECA 

benefits and OPM retirement benefits. The employee has the right to elect the monetary benefit 

which is the more advantageous.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $2,565.02 for the period October 30 through 

December 5, 2020.

On November 23, 2020 appellant completed a form indicating her election of OPM 

retirement benefits effective October 30, 2020. However, OWCP continued to pay appellant 

wage-loss compensation for temporary total disability for the period October 30 through 

December 5, 2020.

A FECA beneficiary may not receive wage-loss compensation concurrently with a federal 

retirement or survivor annuity.9 The clear language of section 8116(a) of FECA, section 10.421(a) 

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

Id. at § 8116(a).

6

20 C.F.R. § 10.421(a).

7

Id.

8 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4a (January 1997); see also

V.B., Docket No. 19-1874 (issued June 4, 2020); R.S., Docket No. 11-428 (issued September 27, 2011); Harold 

Weisman, Docket No. 93-1335 (issued March 30, 1994).

9

Supra note 6.
4

of OWCP’s implementing regulations, and OWCP’s procedures prohibit the concurrent receipt of 

FECA wage-loss benefits and a federal annuity.10

However, there is no evidence of record establishing that appellant actually received OPM 

retirement benefits for the period October 30 through December 5, 2020.11 It was not until 

December 17, 2020 that OWCP informed OPM that she had elected to receive retirement annuity 

benefits effective October 30, 2020 in lieu of FECA wage-loss compensation and requested that 

OPM commence annuity payments effective retroactively to that date. OWCP also requested that 

OPM reimburse it for the FECA benefits paid to appellant from October 30 through 

December 5, 2020. 

OWCP based its overpayment findings on its determination that appellant had received 

prohibited dual OPM and FECA benefits for the period October 30 through December 5, 2020. 

The Board has previously held that the mere fact that a claimant received FECA benefits after the 

effective date of an OPM election will not establish receipt of a prohibited dual benefit. 12 While 

the record reflects that appellant received FECA benefits for this period, the Board finds that 

OWCP had not established that she also received OPM retirement benefits for that same period.13 

Therefore, the Board finds that OWCP has not met its burden of proof to establish that the 

overpayment occurred.14

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $2,565.02 for the period October 30 through 

December 5, 2020.15

10 5 U.S.C. § 8116(a); 20 C.F.R. § 10.421(a); Federal (FECA) Procedure Manual, supranote 8.

11 See C.P., Docket No. 19-0732 (issued September 5, 2019); J.M., Docket No. 15-1604 (issued May 23, 2016).

12 Id. See also B.H., Docket No. 13-1955 (issued January 29, 2014).

13 See R.R., Docket No. 18-0032 (issued May 3, 2018) (finding that election form signed by appellant on 

December 21, 2018 was insufficient to show that he actually began receiving OPM retirement benefits). See also 

E.R., Docket No. 18-0084 (issued July 27, 2018).

14 See J.A., Docket No. 18-0259 (issued August 5, 2019).

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

IT IS HEREBY ORDERED THAT the May 2, 2022 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: November 23, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board