United States Department of Labor

Employees’ Compensation Appeals Board

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A.M., Appellant

and

DEFENSE AGENCIES, TRACY DEFENSE 

DEPOT, Tracy, CA, Employer

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Docket No. 23-0151

Issued: June 9, 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 November 10, 2022 appellantfiled a timely appeal from a June 28, 2022 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 appellant received an overpayment of compensation in the 

amount of $3,532.61, for the period July 1, 2021 through March 26, 2022, for which he was 

without fault, because he concurrently received Office of Personnel Management (OPM) 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that following the June 28, 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 denied 

waiver of recovery of the overpayment. 

FACTUAL HISTORY

On June 10, 2004 appellant, a 44-year-old letter police officer, filed a traumatic injury 

claim (Form CA-1) alleging that on June 2, 2004 he sustained injuries during defense tactics 

training while in the performance of duty. OWCP accepted the claim for tear of right medial 

meniscus, right lateral collateral ligament strain, right chondromalacia patella, and right knee joint 

effusion. Appellant underwent an OWCP-approved right knee arthroscopy with chondroplasty 

and lateral retinacular release on December 17, 2004. OWCP paid him wage-loss compensation 

from December 17, 2004 through January 3, 2005, when he returned to a modified-duty position. 

By decision dated July 10, 2007, it reduced appellant’s wage-loss compensation, effective 

December 18, 2006, as the position he held, effective December 18, 2006, as a transportation 

assistant, fairly and reasonably represented his wage-earning capacity. OWCP paid him on the 

periodic rolls for his loss of wage-earning capacity, effective June 10, 2007. Appellant retired 

effective June 30, 2021. 

In a letter dated October 29, 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). OWCP also enclosed an election form for appellant’s completion.

Following a February 2, 2022 conversation with appellant, OWCP, in a letter dated 

February 2, 2022, reminded him to select his election of benefits and complete the election form.

On February 23, 2022 OWCP received appellant’s election of benefits form dated 

February 21, 2022. Appellant elected to receive retirement benefits through OPM. The effective 

date of his election was July 1, 2021. Appellant also indicated, with a checkmark, that he had not 

received a lump-sum annuity from OPM as a part of an alternative annuity under CSRS or as part 

of the death benefit under FERS. 

A March 29, 2022 OWCP termination fiscal worksheet noted that the effective date of the 

periodic rolls termination was March 26, 2022, due to appellant’s election of OPM benefits. It 

calculated that he received $3,532.61in FECA wage-loss compensation for the period July 1, 2021 

through March 26, 2022, which it deemed was an overpayment. 

On May 20, 2020 OWCP issued a preliminary overpayment determination that an 

overpayment of compensation was created in the amount of $3,532.61, for the period July 1, 2021 

through March 26, 2022, because appellant received prohibited dual benefit payments. It 

explained that the overpayment occurred because he had elected OPM retirement benefits effective 

July 1, 2021 and received FECA benefits beyond the election date of July 1, 2021. OWCP found 

that appellant was without fault in the creation of the overpayment. It requested that he submit a 

completed overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable 

repayment method, and advised him that he could request a waiver of the overpayment. OWCP
3

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. It advised him that failure to submit the requested information within 30

days would result in denial of waiver of the overpayment. Additionally, OWCP further 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.

In a May 25, 2022 letter, D.B., an employing establishment injury compensation specialist, 

asserted that OWCP’s preliminary overpayment determination may have been issued in error. He 

attached a copy of an April 28, 2022 letter, wherein OWCP requested that OPM reimburse it 

$3,532.61 for the period July 1, 2021 through March 26, 2022. In a May 25, 2022 response to the 

May 25, 2022 letter, OWCP informed the employing establishment that it was alerting OPM of 

the reimbursement requirement from their office, not appellant.

By decision dated June 28, 2022, OWCP finalized the preliminary overpayment 

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

$3,532.61 for the period July 1, 2021 through March 26, 2022, for which he was without fault. It 

explained that the overpayment occurred because he concurrently received both FECA benefits 

and OPM retirement benefits during this period, which resulted in a prohibited dual benefit 

payment. OWCP denied waiver of recovery of the overpayment and required recovery of the 

$3,532.61 overpayment in full within 30 days.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability of an employee resulting from personal injury sustained while in the performance of his 

or her federal employment.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 

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

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(a).

6

Id.

7 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 $3,532.61 for the period July 1, 2021 through 

March 26, 2022.

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OWCP based its overpayment finding on its determination that appellant had received a 

prohibited dual benefit by receipt of OPM and FECA benefits for the period in question. While 

the record reflects that he received FECA wage-loss compensation for this period, the Board finds 

that OWCP has not established that he concurrently received OPM benefits.9

On February 21, 2022 appellant elected to receive OPM retirement benefits in lieu of 

FECA wage-loss compensation. The effective date of his election was July 1, 2021. Appellant 

indicated, with a checkmark, that he had not received a lump-sum annuity from OPM as a part of 

an alternative annuity under CSRS or as part of the death benefit under FERS. There is no evidence 

of record which establishes that appellant actually received OPM benefits for the period July 1, 

2021 through March 26, 2022.

10

 Rather, it was not until after appellant filed his election of benefits 

on February 21, 2022 that OWCP informed OPM that appellant had elected to receive retirement 

annuity benefits, effective July 1, 2021, in lieu of FECA wage-loss compensation and requested 

that OPM commence annuity payments effective retroactively to that date.

Therefore, the Board finds that fact of overpayment has not been established.

11

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $3,532.61 for the period July 1, 2021 through 

March 26, 2022.

8 B.C., Docket No. 20-1415 (issued April 14, 2021); M.C., Docket No. 18-0074 (issued August 1, 2019).

9

See B.C., id.; R.R., Docket No. 18-0032 (issued May 3, 2018).

10 B.C., id.; J.M., Docket No. 15-1604 (issued May 23, 2016).

11 In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.
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ORDER

IT IS HEREBY ORDERED THAT the June 28, 2022 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: June 9, 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