United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, BELLEVILLE POST 

OFFICE, Belleville, NJ, Employer

__________________________________________

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Docket No. 21-1073

Issued: February 3, 2023

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

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 7, 2021 appellant filed a timely appeal from a June 15, 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 $865.88 for which she was without fault, as she 

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 June 15, 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 evidence for 

the first time on appeal. Id.
2

wage-loss compensation for the period December 9, 2020 through January 2, 2021; and 

(2) whether it properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

On July 25, 2005 appellant, then a 59-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained tendinitis of the lower extremities due to 

factors of her federal employment. OWCP accepted the claim for herniated disc at the L4-L5 and 

L5-S1 levels with associated lumbar radiculitis. It paid appellant wage-loss compensation on the 

supplemental rolls as of December 23, 2006 and on the periodic rolls as of February 15, 2009.

On December 16, 2020 OWCP received an OPM election form, dated December 9, 2020, 

wherein appellant elected to receive OPM retirement benefits in lieu of FECA compensation 

benefits, effective December 9, 2020.

In a January 22, 2021 letter, OWCP informed OPM that appellant had elected to receive 

OPM retirement benefits, in lieu of FECA compensation benefits, effective December 9, 2020. It 

advised that OWCP terminated appellant’s compensation benefits, effective December 9, 2020,

and requested information as to whether OPM retirement benefits had been paid for the period 

December 9, 2020 through January 2, 2021.

An OWCP compensation termination fiscal worksheet dated January 22, 2021 noted that 

the effective date of the periodic rolls termination was December 9, 2020 due to appellant’s 

selection of that date as the effective date for her receipt of OPM benefits. It also noted that an 

overpayment in the amount of $901.96 had been created, as she continued to be paid FECA 

compensation for the period December 9, 2020 through January 2, 2021. The record establishes 

that appellant received wage-loss compensation on the periodic rolls through January 2, 2021.

On January 22, 2021 OWCP issued a preliminary determination that appellant received an 

overpayment in the amount of $901.96 for the period December 9, 2020 through January 2, 2021. 

It explained that the overpayment was the result of her receipt of FECA compensation benefits 

through January 2, 2021 after having elected receipt of OPM benefits, effective December 9, 2020. 

OWCP determined that appellant was without fault in the creation of the overpayment, because 

she was not reasonably aware that the payment was incorrect at the time it was received because 

30 days had not passed since the improper compensation was deposited by electronic funds transfer 

(EFT). It provided a calculation of the overpayment and requested that she complete an 

overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial 

documentation including copies of tax returns, bank account statements, bills and cancelled 

checks, pay slips, and other records, which supported the income and expenses listed.

Additionally, OWCP notified appellant 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 subsequently received a February 8, 2021 letter wherein appellant’s then-counsel

noted that appellant had elected OPM retirement benefits in lieu of FECA compensation, effective 

December 9, 2020. Counsel requested that the election of benefits be effectuated as soon as 

possible.
3

By decision dated June 15, 2021, OWCP finalized the preliminary overpayment 

determination. It noted that there was an error in the preliminary determination and appellant was 

only overpaid in the amount of $865.88 during the period December 9, 2020 through 

January 2, 2021. OWCP explained that the overpayment occurred because she concurrently 

received both FECA compensation and OPM retirement for that period. It found that appellant

was without fault in the creation of the overpayment. However, OWCP denied waiver of recovery 

of the overpayment because the record contained no evidence that recovery of the overpayment 

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

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

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 2.1000.4.a (January 1997); see also

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

March 30, 1994).
4

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $865.88 for the period December 9, 2020 through 

January 2, 2021.9

On December 9, 2020 appellant completed a form, indicating her election of OPM 

retirement benefits in lieu of FECA compensation effective that date. OWCP, however, continued 

to pay her wage-loss compensation for temporary total disability for the period December 9, 2020 

through January 2, 2021. 

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

retirement annuity.10 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 benefits and a federal annuity.11

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

retirement benefits for the period December 9, 2020 through January 2, 2021. In a letter dated 

January 22, 2021, OWCP informed OPM that appellant had elected to receive OPM retirement

benefits, effective December 9, 2020 in lieu of FECA compensation. It advised that OWCP had 

terminated benefits effective December 9, 2020, and requested information about whether benefits 

had been paid for the period December 9, 2020 through January 2, 2021. OWCP did not receive 

a response from OPM before the preliminary overpayment decision was finalized on 

June 15, 2021. 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 establishes that appellant received FECA compensation 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 failed to meet its burden of proof to establish that 

the overpayment occurred.14

9 See V.C., Docket No. 20-0852 (issued January 28, 2021).

10 Supra note 5.

11 5 U.S.C. § 8116(a); 20 C.F.R. § 10.421(a); Federal (FECA) Procedure Manual, supra note 8.

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

V.C., supra note 9; V.B., Docket No. 19-1874 (issued June 4, 2020); C.P., Docket No. 19-0732 (issued September 5, 

2019); J.M., Docket No. 15-1604 (issued May 23, 2016).

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

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $865.88 for the period December 9, 2020 through 

January 2, 2021.15

ORDER

IT IS HEREBY ORDERED THAT the June 15, 2021 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: February 3, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

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