United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

New York, NY, Employer

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Docket No. 22-0222

Issued: August 8, 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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 29, 2021 appellant filed a timely appeal from a November 22, 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 $2,980.29 for which he was without fault, because 

he concurrently received Office of Personnel Management (OPM) retirement benefits and FECA 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the November 22, 2021 decision, appellant submitted additional evidence to 

OWCP. 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

wage-loss compensation for the period August 15 through September 11, 2021; (2) and whether 

OWCP properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On February 22, 2021 appellant, then a 55-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on February 18, 2021 he tore his left knee tendon when he slipped 

on ice covered with snow and twisted his knee while in the performance of duty. He stopped work 

on that date. OWCP accepted appellant’s claim for left knee medial meniscus tear and left 

quadriceps muscle strain. It paid him wage-loss compensation on the supplemental rolls beginning 

April 5, 2021 and on the periodic rolls, effective April 25, 2021.

In a letter dated May 4, 2021, OWCP advised appellant of his weekly compensation rate 

on the periodic rolls. It further informed him that he must report any retirement income received 

from any federal agency as federal employees who receive wage-loss compensation benefits under 

FECA are not permitted to concurrently receive benefits under certain other federal programs, 

including the Civil Service Retirement System (CSRS) or the Federal Employees Retirement 

System (FERS).

In a letter dated August 13, 2021, OWCP advised appellant that it was informed that he 

was receiving or may be entitled to receive OPM retirement benefits and provided him with an 

election of benefits form.

On August 13, 2021 OWCP received an election of benefits form, signed by appellant on 

August 13, 2021 in which he indicated that, effective August 15, 2021, he elected to receive OPM 

retirement benefits in lieu of any benefits to which he might be entitled under FECA. 

In a separate letter of date to OPM dated August 13, 2021, OWCP informed OPM that it 

received appellant’s claim for compensation under FECA and requested that OPM complete an 

attached questionnaire addressing whether he submitted an application for OPM benefits, whether 

benefits were payable, and whether benefits had been paid.

An OWCP compensation termination fiscal worksheet dated September 10, 2021 noted 

that the effective date of the periodic rolls termination was August 15, 2021 due to appellant’s 

election of August 15, 2021 as the effective date for the receipt of his OPM benefits. It also noted 

that an overpayment in the amount of $2,980.29 had been created as appellant continued to receive 

FECA compensation benefits for 28 additional days after his effective election date for the period 

August 15 through September 11, 2021.

In a letter dated September 10, 2021 to OPM, OWCP indicated that appellant elected to 

receive OPM benefits effective August 15, 2021 in lieu of compensation benefits under FECA, 

and it requested that OPM commence annuity payments effective that date. It also requested that 

OPM reimburse OWCP in the amount of $2,980.29 for FECA benefits paid during the period 

August 15, 2021 through September 11, 2021. OWCP attached appellant’s August 13, 2021 

election of benefits form. 

In a letter dated September 22, 2021, the employing establishment informed OWCP that it 

had received an application for retirement benefits from appellant. It provided a notification of 
3

personnel action, PS Form 50, which noted that appellant retired, effective June 30, 2021. OWCP 

also submitted a copy of an official personnel folder (e-OPF) page, which indicated that appellant 

had elected optional retirement on June 28, 2021. 

On October 14, 2021 OWCP issued a preliminary overpayment determination that 

appellant received an overpayment of compensation in the amount of $2,980.29 for the period 

August 15 through September 11, 2021. It explained that the overpayment was the result of his 

receipt of FECA compensation benefits through September 11, 2021 after having elected to 

receive OPM benefits, effective August 15, 2021. OWCP determined that appellant was without 

fault in the creation of the overpayment. It provided a calculation of the overpayment and 

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

supporting financial documentation. 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 

final decision based on the written evidence or a prerecoupment hearing. It further advised 

appellant that it would deny waiver of recovery if he failed to furnish the requested financial 

information within 30 days. No information was received.

In a letter dated October 19, 2021, OPM informed OWCP that it began payments to 

appellant, effective August 15, 2021. It noted that appellant’s net monthly annuity was $912.57. 

OPM also advised OWCP that it could not begin collection of the overpayment incurred for the 

period August 15 through September 11, 2021 until OWCP sent certification that due process had 

been given to appellant. 

By decision dated November 22, 2021, OWCP finalized the preliminary overpayment 

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

of $2,980.29 for the period from August 15 through September 11, 2021 because he received 

FECA compensation benefits through September 11, 2021 after having elected receipt of OPM 

benefits, effective August 15, 2021. It also found that appellant was without fault in the creation 

of the overpayment, but denied waiver of recovery of the overpayment because he had not 

completed and returned OWCP’s Form OWCP-20.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) 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 his or her duty.3 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.4

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

not receive wage-loss compensation concurrently with a federal retirement or survivor annuity.5 

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(a).
4

The beneficiary must elect the benefit that he or she wishes to receive. 6 OWCP’s procedures also 

explain that the employee must make an election between FECA benefits and OPM benefits. The 

employee has the right to elect the monetary benefit, which is the more advantageous. This policy 

also applies to reemployed annuitants.7

ANALYSIS -- ISSUE 1

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

of compensation in the amount of $2,980.29 for which he was without fault, because he 

concurrently received FECA wage-loss compensation and OPM retirement benefits for the period 

August 15 through September 11, 2021.

On August 13, 2021 appellant elected OPM retirement benefits, effective August 15, 2021. 

The evidence of record indicates that appellant began receiving FECA wage-loss compensation 

benefits on the periodic rolls commencing April 15, 2021, continuing through September 11, 2021. 

In a letter dated October 19, 2021, OPM confirmed that it paid appellant monthly benefits 

beginning August 15, 2021 and noted his monthly annuity amount. 

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

retirement or survivor annuity.8 The clear language of section 8116(a) of FECA, section 10.421(a) 

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

FECA wage-loss compensation benefits and a federal annuity.9 The evidence of record establishes 

that, although OPM provided retirement benefits, effective August 15, 2021, appellant continued 

to receive FECA wage-loss compensation benefits while concurrently receiving OPM retirement 

benefits.10 OWCP calculations show that appellant received $2,980.29 in FECA wage-loss 

compensation benefits for the period August 15 through September 11, 2021 when it was 

terminated. Therefore, as appellant had elected OPM retirement benefits for the period of the 

overpayment, August 15 through September 11, 2021, an overpayment of compensation in that 

amount was created.11

6

Id. 

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4a (February 1995 & 

January 1997); R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued 

March 30, 1994).

8

Supra note 5; B.C., Docket No. 20-1415 (issued April14, 2021).

9

Supra notes 5-7; M.G., Docket No. 20-0867 (issued October 13, 2021).

10 See J.S., Docket No. 17-1395 (issued October 27, 2017) (the Board affirmed the final decision of overpayment 

in the amount of $513.29 for the period August 1 through 5, 2016, finding that correspondence from OPM had 

indicated that the claimant began receiving retirement payments, effective August 1, 2016, but continued to receive 

FECA wage-loss compensation benefits through August 5, 2016). 

11 E.F., Docket No. 18-1320 (issued March 13, 2019); C.H., Docket No. 18-0772 (issued November 14, 2018).
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LEGAL PRECEDENT -- ISSUE 2

Section 8129 of FECA provides that an individual who is without fault in creating or 

accepting an overpayment is still subject to recovery of the overpayment unless adjustment or 

recovery would defeat the purpose of FECA or would be against equity and good conscience. 12 

Section 10.438 of OWCP’s regulations provides that the individual who received the overpayment 

is responsible for providing information about income, expenses and assets as specified by OWCP. 

Failure to submit the requested information within 30 days of the request shall result in denial of 

waiver of recovery of the overpayment.13 The guidelines for determining whether recovery of an 

overpayment would defeat the purpose of FECA, or would be against equity and good conscience, 

are set forth in sections 10.434 to 10.437 of OWCP’s regulations.14

The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that 

rests within OWCP’s discretion pursuant to statutory guidelines.15 

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied waiver of recovery of the overpayment.

As OWCP found appellant without fault in the creation of the overpayment, waiver must 

be considered, and repayment is still required unless adjustment or recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience. 16 

In its preliminary determination dated October 14, 2021, OWCP clearly explained the 

importance of providing the completed Form OWCP-20 recovery questionnaire and supporting 

financial documentation. It advised appellant that it would deny waiver of recovery if he failed to 

furnish the requested financial information within 30 days. Appellant, however, did not submit a 

completed Form OWCP-20 recovery questionnaire or otherwise submit financial information 

necessary for OWCP to determine if recovery of the overpayment would defeat the purpose of 

FECA or if recovery would be against equity and good conscience.17

Consequently, as appellant did not submit the information required under 20 C.F.R. 

§ 10.438, which was necessary to determine his eligibility of waiver, OWCP properly denied 

waiver of recovery of the overpayment of compensation in the amount of $2,980.29.

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12 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436 and 10.437.

13 20 C.F.R. § 10.438.

14 Id. at §§ 10.434-10.437.

15 See Robert Atchison, 41 ECAB 83, 87 (1989).

16 20 C.F.R. § 10.436.

17 See S.M., Docket No. 17-1802 (issued August 20, 2018).

18 See J.A., Docket No. 19-1946 (issued July 13, 2020); see also T.E., Docket No. 19-0348 (issued 

December 11, 2019).
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CONCLUSION

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

of compensation in the amount of $2,980.29 for which he was without fault, because he 

concurrently received FECA wage-loss compensation and OPM retirement benefits for the period 

August 15 through September 11, 2021. The Board further finds that OWCP properly denied 

waiver of recovery of the overpayment.

ORDER

IT IS HEREBY ORDERED THAT the November 22, 2021 decision of the Office of

Workers’ Compensation Programs is affirmed.

Issued: August 8, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board