United States Department of Labor

Employees’ Compensation Appeals Board

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Y.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Coppell, TX, Employer

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Docket No. 22-0969

Issued: March 22, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 10, 2022 appellant, through counsel, filed a timely appeal from a May 3, 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 OWCP properly determined that appellant received an 

overpayment of compensation, for which she was without fault, in the amount of $13,038.49 for 

the period July 4 through November 6, 2021because she concurrently received retirement benefits 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the May 3, 2022 decision, OWCP received additional evidence. 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

from the Office of Personnel Management (OPM) and FECA wage-loss compensation benefits; 

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

FACTUAL HISTORY

On June 6, 2018 appellant, then a 60-year-old lead sales and service distribution clerk, filed 

a traumatic injury claim (Form CA-1) alleging that on May 22, 2018 she injured her left shoulder 

when she fell over packages while in the performance of duty. OWCP accepted the claim for a 

concussion without loss of consciousness, sprains of the neck and lumbar spine, contusion and 

trochanteric bursitis of the left hip, joint derangement and superior glenoid labrum lesion of the 

left shoulder, and patellar tendinitis of the left knee. It paid appellant wage-loss compensation for 

disability on the supplemental rolls from June 23 through September 15, 2018, and on the periodic 

rolls from September 16, 2018 through November 6, 2021.

In a November 4, 2021 election of benefits form (Form CA-1105), appellant elected to 

receive retirement benefits from OPM in lieu of workers’ compensation benefits from FECA,

effective July 4, 2021.

By letter dated November 10, 2021, OWCP advised OPM that appellant had elected to 

receive OPM benefits effective July 4, 2021 and that it had paid wage-loss compensation through 

November 6, 2021.

In a form dated November 22, 2021, OPM indicated that it commenced payment of 

retirement annuity benefits to appellant in the gross amount of $3,782.00 per month, effective 

November 6, 2021. It noted that OWCP stopped payment effective November 6, 2021, and, 

therefore, no overpayment debt was incurred.

By letter dated December 13, 2021, OWCP acknowledged that OPM commenced annuity 

payments as of November 6, 2021 in order to avoid an overpayment on appellant’s account.

On March 24, 2022 OWCP issued a preliminary overpayment determination finding that 

appellant had received an overpayment of compensation in the amount of $13,038.49for the period 

July 4 through November 6, 2021. It explained that the overpayment occurred because she elected 

to receive OPM retirement benefits effective July 4, 2021 but was paid compensation for 

temporary total disability through November 6, 2021, which resulted in a prohibited dual benefit 

payment. OWCP further advised appellant of its preliminary determination that she was without 

fault in the creation of the overpayment. It requested that she submit a completed overpayment 

recovery questionnaire (Form OWCP-20) to determine a reasonable payment method and advised 

her that she could request waiver of recovery of the overpayment. OWCP further requested that 

appellantsubmit 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, it provided an overpayment action request form and notified her 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.

In an April 11, 2022 memorandum of telephone call (Form CA-110), appellant advised 

OWCP that OPM paid her retirement annuity as of November 6, 2021. 
3

On April 25, 2022 OWCP received an overpayment action request form dated April 12, 

2022, noting that appellant contested the overpayment and disagreed that the overpayment 

occurred.

By decision dated May 3, 2022, OWCP finalized its preliminary determination that 

appellant received a $13,038.49 overpayment of compensation, because she elected to receive 

OPM benefits effective July 4, 2021, but was paid FECA wage-loss compensation through 

November 6, 2021. It found that she was without fault in the creation of the overpayment but 

denied waiver of recovery, noting that she had not completed a Form OWCP-20 or provided 

financial documentation. OWCP determined that appellant should forward the full amount of the 

overpayment, $13,038.49, within 30 days as repayment.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA3 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.4 Section 8116 of FECA defines the limitations on the right to receive 

compensation benefits.5 Section 8116(a) 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.6

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.7 

The beneficiary must elect the benefit that he or she wishes to receive. 8 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.9

3

Supra note 1.

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8116(a).

7

20 C.F.R. § 10.421(a).

8

Id.

9 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4a (January 1997);see also 

D.J., Docket No. 20-0004 (issued May 21, 2020); 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 $13,038.49 for the period July 4 through 

November 6, 2021.

On November 4, 2021 appellant elected OPM retirement benefits effective July 4, 2021. 

OWCP paid herwage-loss compensation for temporary total disability through November 6, 2021. 

On March 24, 2022 it issued a preliminary overpayment determination that an overpayment of 

compensation was created in the amount of $13,038.49 for the period July 4 through November 6, 

2021 because appellant elected to receive retirement benefits effective July 4, 2021, but was paid 

compensation for temporary total disability through November 6, 2021. 

In a form dated November 22, 2021, OPM indicated that it commenced payment of 

retirement annuity benefits to appellant effective November 6, 2021, the same date that OWCP 

stopped payment, and, therefore, no overpayment debt was incurred. By letter dated December 13, 

2021, OWCP acknowledged that OPM commenced annuity payments on November 6, 2021 in 

order to avoid an overpayment on appellant’s account. In addition, on April 11, 2022, appellant 

advised OWCP that she received payment from OPM as of November 6, 2021, not July 4, 2021. 

However, OWCP finalized the March 24, 2022 preliminary overpayment determination by 

decision dated May 3, 2022.

While the record reflects that appellant received FECA benefits for the period July 4 

through November 6, 2021, OWCP has not established that she also received OPM benefits for 

this period.10 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.11 Therefore, the Board finds that OWCP has not met its burden of proof to establish that 

the overpayment occurred.12

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $13,038.49 for the period July 4 through 

November 6, 2021.

13

10 C.P., Docket No. 19-0732 (issued September 5, 2019); M.C., Docket No. 18-0074 (issued August 1, 2019).

11 T.M., Docket No. 20-0967 (issued April12, 2022); C.P., id.; J.M., Docket No. 15-1604 (issued May 23, 2016); 

B.H., Docket No. 13-1955 (issued January 29, 2014).

12 T.M., id.; C.P., id.

13 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
5

ORDER

IT IS HEREBY ORDERED THAT the May 3, 2022 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: March 22, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board