United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

M.W., Appellant

and

U.S. POSTAL SERVICE, MORGAN 

PROCESSING & DISTRIBUTION CENTER, 

New York, NY, Employer

_________________________________________

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Docket No. 22-0388

Issued: January 19, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 6, 2022 appellant filed a timely appeal from an October 6, 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 $42,947.52 for the period January 1, 2017 through 

March 27, 2021, because she concurrently received FECA wage-loss compensation and Social 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the October 6, 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

Security Administration (SSA) age-related retirement benefits, without an appropriate offset; 

(2) whether OWCP properly found that appellant was at fault in the creation of the overpayment, 

thereby precluding waiver of recovery of the overpayment; and (3) whether OWCP properly 

required recovery of the overpayment by deducting $475.00 from appellant’s continuing 

compensation payments every 28 days. 

FACTUAL HISTORY

On March 7, 2003 appellant, then a 52-year-old electronics technician, filed a traumatic 

injury claim (Form CA-1) alleging that on February 28, 2003 she experienced low back, left 

shoulder, and left arm pain extending into her left fingers while in the performance of duty. OWCP 

accepted the claim for cervical radiculopathy. Appellant stopped work on February 28, 2003 and 

did not return. OWCP paid her wage-loss compensation on the supplemental rolls effective 

April 15, 2003 and on the periodic rolls effective June 15, 2003.

On January 2, 2013 OWCP informed appellant that section 8116(d)(2) of FECA3requires 

that a claimant’s continuing compensation benefits be reduced if she begins receiving SSA 

retirement benefits based on her age and federal service. It further advised that failure to report 

receipt of retirement benefits to OWCP could result in an overpayment of compensation, which 

could be subject to recovery.

On February 25, 2021 OWCP sent a Federal Employees Retirement System (FERS)/SSA 

dual benefits calculation form to SSA for completion. 

On March 12, 2021 SSA completed the FERS/SSA dual benefits form and provided 

appellant’s SSA age-related retirement benefit rates with FERS and without FERS from 

January 2017 through December 2020. SSA indicated that, beginning January 1, 2017, her SSA 

rate with FERS was $1,631.10 and without FERS was $750.20, beginning December 2017, her

SSA rate with FERS was $1,663.70 and without FERS was $765.20, beginning December 2018, 

her SSA rate with FERS was $1,710.20 and without FERS was $786.60, beginning 

December 2019, her SSA rate with FERS was $1,737.50 and without FERS was $799.10, and 

beginning December 2020, her SSA rate with FERS was $1,760.00 and without FERS was 

$809.40. 

In an April 5, 2021 letter, OWCP informed appellant that effective March 28, 2021 it 

would begin deducting the portion of SSA age-related retirement benefits attributable to herfederal 

service from her compensation benefits. It found that with the SSA offset she was entitled to net 

compensation every 28 days of $2,428.36.

OWCP completed a FERS offset overpayment calculation form on April 5, 2021. It 

calculated the amount that it should have offset from appellant’s wage-loss compensation for each 

period January 1, 2017 through March 27, 2021. OWCP found that, from January 1 through 

November 30, 2017, she received an overpayment of $9,699.58, from December 1, 2017 through 

November 30, 2018, she received an overpayment of $10,811.62, from December 1, 2018 through 

November 30, 2019, she received an overpayment of $11,113.65, from December 1, 2019 through 

November 30, 2020, she received an overpayment of $11,322.67, and from December 1, 2020 

3

5 U.S.C. § 8116(d)(2).
3

through March 27, 2021, she received an overpayment of $3,666.60. In calculating the 

overpayment, OWCP added the overpayment created from December 1, 2017 through 

November 30, 2020 to find a total overpayment of $42,947.52. 

In a preliminary overpayment determination dated July 15, 2021, OWCP notified appellant 

of its preliminary finding that she had received an overpayment of compensation in the amount of 

$42,947.52 because her wage-loss compensation benefits had not been reduced for the period 

January 1, 2017 through March 27, 2021 by the portion of her SSA age-related retirement benefits 

attributable to her federal service. It further advised her of its preliminary determination that she 

was with fault in the creation of the overpayment as she failed to provide information which she 

knew or should have known was material. OWCP requested that appellant complete an 

overpayment recovery questionnaire (Form OWCP-20). It further requested that she submit 

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, she could request a telephone conference, a 

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

Appellant requested a decision by OWCP based on the written evidence. In a completed 

OWCP-20 form, she provided her monthly income as $4,039.36 and monthly expenses as 

$4,625.73. Appellant advised that she had assets in cash and a checking account of $21,211.18. 

She noted that she required these funds for home repairs. In an accompanying letter of even date, 

appellant asserted that she was without fault in the creation of the overpayment, noting that she 

had advised OWCP about her confusion regarding whether she was receiving SSA as an annuity 

for federal service. She submitted supporting financial documentation.

By decision dated October 6, 2021, OWCP finalized its preliminary overpayment 

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

of $42,947.52 for the period January 1, 2017 through March 27, 2021 because she had 

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

attributable to her federal service without appropriate offset. It further finalized its preliminary 

finding that she was at fault in the creation of the overpayment and thereforeprecluded fromwavier 

of recovery of the overpayment. OWCP required recovery of the overpayment by deducting 

$475.00 from appellant’s continuing compensation payments every 28 days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA4 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.5 Section 8116 limits the right of an employee to receive 

4

Supra note 1.

5

5 U.S.C. § 8102.
4

compensation. While an employee is receiving compensation, he or she may not receive salary, 

pay, or remuneration of any type from the United States.6

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.7 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 

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. 8

ANALYSIS -- ISSUE 1

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

of wage-loss compensation because she concurrently received FECA wage-loss compensation and 

SSA age-related retirement benefits without an appropriate offset. 

OWCP paid appellant wage-loss compensation for total disability beginning 

April 13, 2003. Appellant received SSA age-related retirement benefits beginning 

January 1, 2017. As noted, a claimant cannot receive concurrent FECA compensation for wage

loss and SSA age-related retirement benefits attributable to federal service, without an appropriate 

offset.

9

 The information provided by SSA indicated that a portion of appellant’s SSA age-related 

retirement benefits were attributable to her federal service. Accordingly, the Board finds that fact 

of overpayment has been established.10 

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

period and the amount of the overpayment.

In determining the amount of the overpayment, OWCP found that appellant had received 

an overpayment of $9,699.58 for the period January 1 through November 30, 2017; $10,811.62 

for the period December 1, 2017 through November 30, 2018; $11,113.65 for the period 

December 1, 2018 through November 30, 2019; $11,322.67 for the period December 1, 2019 

through November 30, 2020; and $3,666.60 for the period December 1, 2020 through 

March 27, 2021. It calculated the final amount of the overpayment, however, by adding the 

amount of the overpayment created from January 1, 2017 through November 30, 2020. OWCP 

has not explained the discrepancy between the period and amount set forth in its overpayment 

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see L.S., Docket No. 21-0562 (issued November 30, 2021); S.M., Docket No. 17-1802 

(issued August 20, 2018).

8 FECA Bulletin No. 97-09 (issued February 3, 1997); seealso N.B.,Docket No. 18-0795 (issued January 4, 2019).

9

Supra note 7; see also F.K., Docket No. 20-1609 (issued June 24, 2021); A.C., Docket No. 18-1550 (issued 

February21, 2019).

10 See L.K., Docket No. 20-1574 (issued June23, 2021); S.H., Docket No. 20-1157 (issued December 23, 2020).
5

calculation and its final overpayment determination. Consequently, the case must be remanded to 

OWCP for recalculation of the period and amount of the overpayment.

11

On remand, OWCP shall clarify the period and the amount of overpayment.12 It shall then 

issue a new preliminary overpayment determination, with an overpayment action request form, an 

overpayment recovery questionnaire, and instructions for appellant to provide supporting financial 

information.13 After this and other such further development as deemed necessary, it shall issue a 

de novo decision.

LEGAL PRECEDENT -- ISSUE 2

Section 8129(a) of FECA provides that an overpayment of compensation shall be 

recovered by OWCP unless “incorrect payment has been made to an individual who is without 

fault and when adjustment or recovery would defeat the purpose of FECA or be against equity and 

good conscience.”

14

 No waiver of payment is possible if appellant is at fault in helping to create 

the overpayment.15

On the issue of fault, section 10.433(a) of OWCP’s regulations provides that an individual 

is at fault in the creation of an overpayment who: (1) made an incorrect statement as to a material 

fact which the individual knew or should have known to be incorrect; (2) failed to furnish 

information which the individual knew or should have known to be material; or (3) with respect 

to the overpaid individual only, accepted a payment which the individual knew or should have 

been expected to know was incorrect.16 Section 10.433(b) further provides that whether an 

individual was at fault with respect to the creation of an overpayment depends on the circumstances 

surrounding the overpayment. The degree of care expected may vary with the complexity of those 

circumstances and the individual’s capacity to realize that he or she is being overpaid.17

OWCP’s procedures provide that, if a claimant receives benefits from SSA as part of an 

annuity under FERS concurrently with disability/wage-loss compensation, in such a case, the 

claimant should be found without fault, unless there is evidence on file that the claimant was aware 

that the receipt of full SSA benefits concurrent with disability/wage-loss compensation was 

prohibited.18

11 See J.L., Docket No. 20-0444 (issued October 16, 2020).

12 See F.L., Docket No. 21-0619 (issued December 16, 2021); J.H., Docket No. 19-1887 (issued June 16, 2020).

13 F.L., id.; R.K., Docket No. 19-0713 (issued October 20, 2020).

14 5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017).

15 J.B., Docket No. 19-1244 (issued December 20, 2019); Robert W. O’Brien, 36 ECAB 541, 547 (1985).

16 20 C.F.R. § 10.433(a);see K.F., Docket No. 19-1016 (issued February 14, 2020); C.L., Docket No. 19-0242 

(issued August 5, 2019).

17 Id. at § 10.433(b); L.L., Docket No. 19-1690 (issued February 25, 2020); C.L.,id.

18 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, 

Chapter 6.300.4g(4) (September 2020).
6

ANALYSIS -- ISSUE 2

The Board finds that OWCP improperly found that appellant was at fault in the creation of 

the overpayment of compensation.

As noted above, OWCP’s procedures provide that, where the claimant receives SSA 

benefits as part of an annuity under FECA, which results in an overpayment, the claimant should 

be found without fault unless there is evidence on file that the claimant was aware that the receipt 

of full SSA benefits concurrent with disability/wage-loss compensation was prohibited.19 Because 

of the complex nature of SSA benefits administration, appellant could not have been expected to 

be able to calculate the amount of an offset. Therefore, she could not reasonably have been aware 

during the relevant period that her concurrent receipt of SSA benefits constituted an actual 

prohibited dual benefit.20

As previously noted, to determine if an individual was at fault with respect to the creation 

of an overpayment, OWCP examines the circumstances surrounding the overpayment. The degree 

of care expected may vary with the complexity of those circumstances and the individual’s 

capacity to realize that he or she is being overpaid.21 Therefore, based on the circumstances 

described, the Board finds that OWCP did not meet its burden of proof to establish that appellant 

was at fault in the creation of the overpayment.22

CONCLUSION

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

of wage-loss compensation because she concurrently received FECA wage-loss compensation 

benefits and SSA age-related retirement benefits, without an appropriate offset. The Board further 

finds that OWCP improperly determined that she was at fault in the creation of the overpayment 

of compensation. The case is not in posture for decision regarding the period and amount of the 

overpayment.

19 Id.

20 H.H., Docket No. 18-0674 (issued September 3, 2020); G.G., Docket No. 19-0684 (issued December 23, 2019).

21 Supra note 18.

22 In light of the Board’s disposition of Issues 1 and 2, Issue 3 is rendered moot.
7

ORDER

IT IS HEREBY ORDERED THAT the October 6, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed in part, reversed in part, and set aside in part. The 

case is remanded to OWCP for further proceedings consistent with this decision of the Board.

Issued: January 19, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board