United States Department of Labor

Employees’ Compensation Appeals Board

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F.B., Appellant

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DEPARTMENT OF THE ARMY, FORT 

HUNTER LIGGETT, CA, Employer

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Docket No. 21-0549

Issued: November 22, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On February 22, 2021 appellant filed a timely appeal from a February 3, 2021 merit 

decision of the Office of Workers’Compensation Programs (OWCP).1 The Clerk of the Appellate 

Boards assigned Docket No. 21-0549.

On March 14, 1990 appellant then a 54-year-old civilian guard, filed a traumatic injury 

claim (Form CA-1) alleging that on November 29, 1989 he slipped on ice in the parking lot,

injuring his left elbow and shoulder while in the performance of duty. OWCP accepted his claim 

for left elbow and forearm contusion, brachial neuritis or radiculitis, and brachial plexus lesions. 

Appellant subsequently sustained a recurrence of disability, butreturned to work on April 22, 1997 

in the private sector. OWCPpaid him compensation for hisloss of wage-earning capacity (LWEC) 

1 The Board notes that following the February 3, 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.
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beginning April 29, 1997.2 Appellant underwent OWCP-authorized surgeries on May 23, 1991 

and September 28, 1993. He stopped his private sector work on April 31, 2006.

On November 9, 2020 OWCP forwarded a Federal Employees Retirement System 

(FERS)/Social Security Administration (SSA) dual benefits calculation form to the SSA to 

determine whether an offset of compensation benefits was required.

On November 18, 2020 OWCP received from SSA a completed FERS/SSA dual benefits 

calculation form, which reported that appellant had been in receipt of age -related retirement 

benefits since September 2001. The form listed his SSA age-related retirement benefit rates with 

FERS and without FERS as follows: beginning September 2001 the monthly SSA rate with FERS 

was $866.20 and without FERS was $799.20; beginning December 2001 appellant’s SSA rate with 

FERS was $888.70 and without FERS was $819.90; beginning January 2002 his SSA rate with 

FERS was $899.60 and without FERS was $833.70; beginning December 2002 appellant’s SSA 

rate with FERS was $912.10 and without FERS was $845.30; beginning January 2003 his SSA 

rate with FERS was $922.60 and without FERS was $858.90; beginning December 2003 

appellant’s SSA rate with FERS was $941.90 and without FERS was $876.90; beginning 

January 2004 his SSA rate with FERS was $952.50 and without FERS was $891.10; beginning 

December 2004 appellant’s SSA rate with FERS was $978.20, and without FERS was $915.10; 

beginning January 2005 his SSA rate with FERS was $989.70, and without FERS was $930.20;

beginning December 2005 appellant’s SSA rate with FERS was $1,030.20 and without FERS was 

$968.30; beginning January 2006 his SSA rate with FERS was $1,041.40 and without FERS was 

$983.50; beginning December 2006 appellant’s SSA rate with FERS was $1,075.70, and without 

FERS was $1,015.90; beginning January 2007 his SSA rate with FERS was $1,075.70, and without 

FERS was $1,018.70; beginning December 2007 appellant’s SSA rate with FERS was $1,100.40

and without FERS was $1,042.10; beginning December 2008 his SSA rate with FERS was 

$1,164.20 and without FERS was $1,102.50; beginning December 2011 appellant’s SSA rate with 

FERS was $1,206.10, and without FERS was $1,142.10; beginning December 2012 his SSA rate 

with FERS was $1,226.60 and without FERS was $1,161.50; beginning December 2013 

appellant’s SSA rate with FERS was $1,244.90, and without FERS was $1,178.90; beginning 

December 2014 his SSA rate with FERS was $1,266.00 and without FERS was $1,198.90; 

beginning December 2016 appellant’s SSA rate with FERS was $1,269.70, and without FERS was 

$1,202.40; beginning December 2017 his SSA rate with FERS was $1,295.00 and without FERS 

was $1,226.40; beginning December 2018 appellant’s SSA rate with FERS was $1,331.20, and 

without FERS was $1,260.70; and beginning December 2019 his SSA rate with FERS was 

$1,352.40 and without FERS was $1,280.80.

On December 14, 2020 OWCP made a preliminary overpayment determination, finding 

that appellant received an overpayment of compensation in the amount of $14,747.34 for which 

he was without fault, because it failed to reduce his FECA wage-loss compensation for the period 

September 1, 2001 through December 5, 2020 to offset his SSA age-related retirement benefits 

attributable to federal service. It requested that he complete an overpayment recovery 

questionnaire (Form OWCP-20) and submit supporting financial documentation to determine a 

2 Appellant consistently reported his return to private sector work on financial disclosure statements (Form 

CA-1032) beginning August 13, 2002. On August 21, 2003 OWCP indicated that appellant was receiving 

compensation based on an LWEC with a pay rate effective date of September 30, 1992.
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reasonable repayment schedule and advised that he could request waiver of recovery. OWCP

further requested that appellant provide supporting financial documentation, including copies of 

income tax returns, bank account statements, bills, pay slips, and any other records to support 

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

him 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. 

OWCP included a FERS offset calculation worksheet. It determined the overpayment 

amount by multiplying the daily FERS offset amount by the number of days in each period from 

September 1, 2001 through October 11, 2020, resulted in a total overpayment of $14,747.34. 

OWCP found that from September 1 to November 30, 2001, appellant received an overpayment 

in the amount of $201.00; from December 1 through 31, 2001 he received an overpayment in the 

amount of $70.31; from January 1 through November 30, 2002appellant received an overpayment 

in the amount of $725.62; from December 1 through 31, 2002 he received an overpayment in the 

amount of $68.27; from January 1 through November 30, 2003appellant received an overpayment 

in the amount of $701.40; from December 1 through 31, 2003 he received an overpayment in the 

amount of $66.43; from January 1 to November 30, 2004 appellant received an overpayment in 

the amount of $678.10; from December 1 through 31, 2004 he received an overpayment in the 

amount of $64.49; from January 1 through November 30, 2005appellant received an overpayment 

in the amount of $655.15; from December 1 through 31, 2005 he received an overpayment in the 

amount of $63.26;from January 1 through November 30, 2006appellant received an overpayment 

in the amount of $637.54; from January 1 to November 30, 2006, he received an overpayment in 

the amount of $637.54; from December 1 through 31, 2006 appellant received an overpayment in 

the amount of $61.11; from January 1 through November 30, 2007 he received an overpayment in 

the amount of $627.63; from December 1, 2007 through November 30, 2008 appellant received 

an overpayment in the amount of $703.44; from December 1, 2008 through November 30, 2009

he received an overpayment in the amount of $742.43; from December 1, 2009 through 

November 30, 2010 appellant received an overpayment in the amount of $742.43; from 

December 1, 2010 through November 30, 2011 he received an overpayment in the amount of 

$742.43; from December 1, 2011 through November 30, 2012 appellant received an overpayment 

in the amount of $772.22; from December 1, 2012 through November 30, 2013 he received an 

overpayment in the amount of $783.35; from December 1, 2013 through November 30, 2014

appellant received an overpayment in the amount of $794.18; from December 1, 2014 through 

November 30, 2015 he received an overpayment in the amount of $807.41; from December 1, 

2015 through November 30, 2016 appellant received an overpayment in the amount of $809.62; 

from December 1, 2016 through November 30, 2017 he received an overpayment in the amount 

of $809.82; from December 1, 2017 through November 30, 2018 appellant received an 

overpayment in the amount of $825.46; from December 1, 2018 through November 30, 2019 he

received an overpayment in the amount of $848.32; and from December 1, 2019 through 

October 11, 2020 appellant received an overpayment in the amount of $745.90 for a total 

overpayment of $14,747.34.

On January 4, 2021 appellant requested a decision based on the written evidence, as well 

as waiver of recovery of the overpayment. 

OWCP received a partially completed Form OWCP-20 on January 11, 2021, wherein 

appellant advised that he had monthly income of $2,551.83 including SSA benefits of $1,207.00, 
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and FECA benefits of $648.83. Appellant listed monthly expenses of $370.00 for housing, 

$300.00 for food, $100.00 for clothing, $300.00 for utilities, and $150.00 for miscellaneous 

household expenses, medical and dental expenses, automobile expenses, and personal necessities. 

He listed a second mortgage of $518.00 per month, which yielded total monthly expenses of 

$1,738.00. Appellant listed his assets including a second house worth $300,000.00, cash of 

$50.00, checking account balance of $2,000.00, and $15,000.00 in other personal property and 

funds. He listed total funds of $1,750.00. Appellant did not provide any additional financial 

information.

By decision dated February 3, 2021, OWCP finalized the preliminary overpayment 

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

of $14,747.23 for the period September 1, 2001 through December 5, 2020.3It found appellant 

without fault in the creation of the overpayment, but denied waiver of recovery as appellant did 

not fully complete the Form OWCP-20 and did not provide supporting financial documentation. 

OWCP required recovery of the overpayment by deducting 25 percent or $174.00 from appellant’s 

continuing compensation payments every 28 days.

The Board finds that OWCP has not met its burden of proof to establish that appellant 

received an overpayment of compensation.

OWCP determined that appellant received an overpayment of compensation during the 

period September 1, 2001 through December 5, 2020, because he concurrently received FECA 

compensation and SSA age-related retirement benefits without an appropriate offset. The case 

record, however, indicates that he stopped working at the employing establishment prior to 

April 29, 19974 and that he retired from private sector employment on April 31, 2006. There is no 

evidence of record establishing that appellant had retirement coverage under FERS.

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 benefits that are attributable to the 

employee’s federal service.5 FECA Bulletin No. 97-09 provides that FECA benefits have to be 

adjusted for the FERS portion of SSA 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

3 The Board notes that, while the final overpayment determination covers the period beginning

“September 2, 2001.” However, this appears to be a typographical error as the preliminary notice of overpayment and 

the FERS offset calculation worksheet cover the period beginning September 1, 2001.

4 The case record before the Board does not contain any documents received or generated by OWCP prior to 

May 28, 2002.

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20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued 

August 20, 2018).

6 FECA Bulletin No. 97-09 (February 3, 1997); N.B., Docket No. 18-0795 (issued January 4, 2019).
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As OWCP has not established that appellant received an overpayment of compensation 

during the period September 1, 2001 through December 5, 2020, the Board finds that OWCP has 

not met its burden of proof.7

IT IS HEREBY ORDERED THAT the February 3, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: November 22, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

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In light of the Board’s findings regarding the fact and amount of the overpayment, the remaining issues of waiver 

and recovery of the overpayment are rendered moot.