United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.B., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

CHICAGO REGION, Chicago, IL, Employer

__________________________________________

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Docket No. 20-0183

Issued: May 20, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 24, 2019 appellant filed a timely appeal from a May 16, 2019 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $30,521.73 for the period from October 28, 2017 

through December 8, 2018 because she continued to receive FECA wage-loss compensation after 

 

1 The Board notes that, following the May 16, 2019 decision and on appeal, appellant submitted 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 5 U.S.C. § 8101 et seq.
2

the effective date of her election of Office of Personnel Management (OPM) retirement benefits; 

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

and, therefore, not entitled to waiver of recovery of the overpayment.

FACTUAL HISTORY

On October 15, 2010 appellant, then a 46-year-old secretary, filed an occupational disease 

claim (Form CA-2) alleging that on September 28, 2010 she realized that she had developed acute 

right carpal tunnel syndrome due to prolonged typing in the course of her federal employment. 

She stopped work on February 27, 2010. On February 4, 2011 OWCP accepted her claim for right 

carpal tunnel syndrome and de Quervain’s disease.

In a July 14, 2011 letter, OWCP informed appellant that it was placing her on the periodic 

rolls effective May 21, 2011. It explained that she would receive regular payments beginning 

July 3, 2011 and every 28 days thereafter. OWCP’s July 14, 2011 letter also informed appellant 

that she must report any retirement income, disability income, or compensation benefits from any 

federal agency as a recipient of compensation benefits under FECA was not permitted to receive 

benefits under other federal programs including the Civil Service retirement program.

In a form dated December 20, 2017, appellant elected to receive Civil Service Retirement 

System/Federal Employees Retirement System (CSRS/FERS) benefits from OPM in preference 

to benefits to which she may be entitled under FECA. The effective date of her election was 

October 28, 2017. The case record reflects that OWCP received this form on December 26, 2017. 

Notwithstanding her election of OPM benefits, effective October 28, 2017, OWCP continued to 

pay appellant wage-loss compensation for temporary total disability through December 8, 2018. 

By a memorandum of telephone call (Form CA-110) dated January 31, 2018, OWCP 

reported that it had contacted appellant by telephone to verify that she had indeed elected to receive 

retirement benefits through OPM as opposed to compensation benefits under FECA. Appellant 

confirmed that she had opted to receive retirement benefits, but indicated that she had not yet 

received any monetary benefits from OPM as of that date.

In a March 28, 2018 letter, OWCP informed appellant that, for the period March 4 to 31, 

2018, she was entitled to weekly wage-loss compensation in the amount of $744.79 and monthly 

wage-loss compensation in the amount of $2,445.00. It further informed her that annuity benefits 

paid by OPM and benefits for wage loss paid by OWCP were not payable for the same period of 

time. OWCP requested that appellant complete a Form CA-1105 and verify her election of OPM 

benefits. 

In a form dated April 3, 2018, a representative of OPM’s Retirement Services Program 

indicated that appellant had not been paid through its program. Subsequently, on June 11, 2018 

OWCP received a June 7, 2018 form signed by another representative of OPM’s Retirement 
3

Services Program indicating that OPM had received appellant’s application for OPM benefits and 

provided a claim number.3

On October 10, 2018 OWCP again requested that appellant complete a Form CA-1105 and 

return it within 30 days. On October 17, 2018 appellant completed the Form CA-1105 and elected 

to receive OPM retirement benefits effective October 28, 2017.

In a letter dated January 7, 2019, OWCP informed OPM that appellant had elected to 

receive OPM benefits, effective October 28, 2017, in lieu of FECA compensation benefits, 

requested reimbursement in the amount of $36,085.61 for the period from October 28, 2017 to 

December 8, 2018, and requested that OPM commence annuity payments retroactive to that date.

In a Form CA-110, memoranda of telephone calls, dated January 7, 9, 17, and 21, 2019, 

OWCP recorded that appellant had not heard back from OPM relative to her benefits.

On January 10, 2019 OWCP made a preliminary overpayment determination that appellant 

received an overpayment of compensation in the amount of $30,521.73 for the period October 28, 

2017 through December 8, 2018. It explained that the overpayment was the result of her receiving 

OWCP compensation benefits through December 8, 2018 after electing receipt of OPM benefits,

effective October 28, 2017. OWCP provided a calculation of the overpayment, and found that 

appellant was at fault in the creation of the overpayment because she accepted a payment that she 

knew or reasonably should have known to be incorrect. It requested that she complete an 

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

documentation. 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. No response 

was received. 

By decision dated May 16, 2019, OWCP finalized the preliminary overpayment 

determination, finding an overpayment of compensation in the amount of $30,521.73 for the period 

October 28, 2017 through December 8, 2018 for which appellant was at fault. It explained that 

the overpayment occurred because she received both FECA compensation and OPM retirement 

benefits between October 28, 2017 and December 8, 2018.

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.4 Section 8116 of FECA defines the limitations on the right to receive 

compensation benefits.5 Section 8116(a) states that, while an employee is receiving workers’

 

3 Although the OPM representative had checked “No” in response to whether an application for OPM benefits had 

been received from appellant, the fact that OPM assigned a claim number indicates that it had received the application 

and that the check mark “No” was mistaken. 

4 5 U.S.C. § 8102(a).

5

Id. at § 8116.
4

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. This policy also applies to reemployed annuitants.9

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $30,521.73 for the period from October 28, 2017 

through December 8, 2018.

On December 20, 2017 appellant elected OPM retirement benefits effective 

October 28, 2017. OWCP, however, continued to pay appellant compensation on the periodic rolls 

through December 8, 2018. It calculated that an overpayment of $30,521.73 was, therefore,

created.

On May 16, 2019 OWCP finalized its preliminary overpayment determination, finding an 

overpayment of compensation in the amount of $30,521.73, for which appellant was at fault. 

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

retirement or survivor 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 which establishes that appellant actually received 

OPM benefits for the period October 28, 2017 through December 8, 2018.12 It was not until 

January 7, 2018 that OWCP informed OPM that appellant had elected to receive retirement annuity 

 

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 2.1000.4.a (January 1997); C.P., 

Docket No. 19-0732 (issued September 5, 2019); J.A., Docket No. 18-0259 (issued August 5, 2019); R.S., Docket No. 

11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued March 30, 1994).

10 Supra note 6.

11 Supra note 6; supra note 7; Federal (FECA) Procedure Manual, supra note 9.

12 J.M., Docket No. 15-1604 (issued May 23, 2016).
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benefits, effective October 28, 2017, in lieu of FECA compensation and requested that OPM 

commence annuity payments effective retroactively to that date. On April 3, 2018 a representative 

of OPM’s Retirement Services Program informed OWCP that appellant had not yet been paid 

through its program. 

OWCP based its overpayment findings on its determination that appellant had received 

prohibited dual OPM and FECA benefits for the period October 28, 2017 through 

December 8, 2018. 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.13 While the record reflects that appellant received FECA benefits for this period, the 

Board finds that OWCP had not established that she also received OPM benefits for that same 

period.14

Therefore, the Board finds that OWCP has not met its burden of proof to establish that the 

overpayment occurred.15

CONCLUSION

The Board finds that OWCP improperly determined that appellant received an 

overpayment of compensation in the amount of $30,521.73 for the period from October 28, 2017 

through December 8, 2018 as it has not been established that she actually received a dual payment 

after the effective date of her election of OPM retirement benefits.

16

 

13 C.P. and J.A., supra note 9; B.H., Docket No. 13-1955 (issued January 29, 2014).

14 R.R., Docket No. 18-0032 (issued May 3, 2018). The election form signed by appellant on October 17, 2018 is 

insufficient to show that she actually began receiving OPM benefits at any time. E.R., Docket No. 18-0084 (issued 

July 27, 2018).

15 C.P. and J.A., supra note 9.

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

IT IS HEREBY ORDERED THAT the May 16, 2019 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: May 20, 2020

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