United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY,

U.S. CUSTOMS & BORDER PROTECTION,

San Ysidro, CA, Employer

__________________________________________

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Docket No. 22-0574

Issued: September 28, 2023

Appearances: Case Submitted on the Record

Suzanne Knuppel, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 1, 2022 appellantfiled a timely appeal from a September 15, 2021 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). 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.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the September 15, 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

ISSUES

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

overpayment of compensation in the amount of $31,650.61 for the period October 1, 2019 through 

June 19, 2021, as he concurrently received Social Security Administration (SSA) age-related 

retirement benefits and FECA wage-loss compensation, without an appropriate offset; (2) whether 

OWCP properly determined 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 $300.00 from appellant’s continuing compensation 

payments every 28 days.

FACTUAL HISTORY

On September 13, 2000 appellant, then a 47-year-old customs inspector, filed a traumatic 

injury claim (Form CA-1) alleging that on September 12, 2000 he injured his left upper extremity

pushing a disabled vehicle while in the performance of duty. The employing establishment

indicated on the reverse side of the form that his retirement coverage was the Federal Employees 

Retirement System (FERS). OWCP accepted the claim for left ulnar neuropathy, lesion of left 

ulnar nerve, neck strain, displacement of cervical disc, benign neoplasm of larynx, diverticulum 

of esophagus acquired, and reflux esophagitis. 

In a February 10, 2015 letter, OWCP notified appellant that FECA required that his 

continuing compensation benefits be reduced if he began receiving SSA retirement benefits based 

on his age and federal service. It further noted that failure to report receipt of such retirement 

benefits to OWCP could result in an overpayment of compensation. OWCP directed appellant to 

contact it immediately if he was receiving or had been approved to receive SSA age-related 

retirement benefits.

On June 2, 2021 OWCP sent a FERS/SSA dual benefits form to SSA for completion.

In a response dated June 9, 2021, SSA reported appellant’s SSA age-related retirement 

benefit rates with FERS and without FERS for periods beginning October and December 2019 and 

January and December 2020. It indicated that, beginning October 2019, his SSA rate with FERS 

was $2,019.80 and without FERS was $1,129.00; effective December 2019, appellant’s monthly 

rate with FERS was $2,052.10 and without FERS was $1,147.00 per month; effective 

January 2020, appellant’s monthly SSA rate with FERS was $2,161.50 and without FERS was 

$1,147.00; and effective December 2020, appellant’s monthly SSA rate with FERS was $2,189.00 

and without FERS was $1,161.90. 

OWCP completed a FERS offset overpayment calculation f orm on June 24, 2021. It 

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

period October 1, 2019 through June 19, 2021. OWCP found that, from October 1 through 

November 30, 2019, he received an overpayment of $1,791.39; from December 1, 2019 through 

December 31, 2020, he received an overpayment of $11,845.87; from January 1 through 

November 30, 2020, he received an overpayment of $11,204.09; and from December 1, 2020 

through June 19, 2021, he received an overpayment of $6,809.26.

In a June 24, 2021 letter, OWCP informed appellant that, based on the information 

provided by SSA regarding the amount of his age-related retirement benefits, which were 
3

attributable to federal service, his FECA wage-loss compensation had been adjusted. It indicated 

that his gross FECA benefits of $3,524.77would be offset by his SSA benefit attributable to federal 

service in the amount of $948.55, to $2,339.70 every 28 days.

In a preliminary overpayment determination dated June 24, 2021, OWCP notified 

appellant of its preliminary finding that he had received an overpayment of compensation in the 

amount of $31,650.61 from October 1, 2019 through June 19, 2021 because he concurrently 

received SSA age-related retirement benefits and FECA wage-loss compensation, without an 

appropriate offset. It provided him with the offset overpayment calculation form and explained 

that it had calculated the overpayment of compensation by determining the difference between the 

SSA amount with and without FERS for each period, and then multiplying that amount by the 

number of days in each period. OWCPalso advised appellant of its preliminary determination that 

he was at fault in the creation of the overpayment, as he failed to provide evidence that he knew 

or should have known was material. It requested that he complete an enclosed overpayment 

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

Additionally, OWCP provided an overpayment action request form and 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 an overpayment action request form signed June 21, 2021, appellantrequested a decision 

on the written evidence. He asserted that he was without fault in creating the overpayment and 

requested waiver of recovery. In a completed Form OWCP-20 of even date, appellant reported 

monthly income of $7,107.11, which included $2,041.00 in SSA benefits and Department of 

Veterans Affairs (VA) benefits of $1,047.96 for retirement and $1,678.45 for service-connected 

disability. He also reported monthly expenses totaling $4,328.20, which included $2,082.32 for 

mortgage; $200.00 for food; $120.00 for clothing; $550.00 for utilities; $68.40 for dental care; 

$21.97 for vision care; and $1,285.51 for other expenses and loan repayments. Appellant reported 

that he had $100.00 cash on hand, $150.23 in a checking account, $10,880.00 in a savings account, 

and $153,078.64 in an investment account, totaling $164,208.87. He asserted that he should be 

found to be without faultfor the overpayment because he did not know that he had to disclose SSA 

benefits based on his military service.

By decision dated September 15, 2021, OWCP finalized the June 24, 2021 preliminary 

overpayment determination. It found that appellant had received an overpayment of compensation 

in the amount of $31,650.61 for the period October 1, 2019 through June 19, 2021, for which he 

was at fault, thereby precluding waiver of recovery of the overpayment. OWCP required recovery 

of the overpayment by deducting $300.00 from his net periodic rolls compensation every 28 days 

beginning October 10, 2021. 

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) 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 his or her duty.4 Section 8116 limits the right of an employee to receive 

4

5 U.S.C. § 8102(a).
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. 5

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.6 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. 7

ANALYSIS -- ISSUE 1 

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

of wage-loss compensation in the amount of $31,650.61 as he concurrently received SSA agerelated retirement benefits while receiving FECA wage-loss compensation for the period 

October 1, 2019 through June 19, 2021, without an appropriate offset.

As noted, a claimant cannot receive concurrent FECA compensation for wage -loss and 

SSA age-related retirement benefits attributable to federal service for the same period. 8 The 

information provided by SSA accurately indicated that he had received SSA age-related retirement 

benefits that were attributable to his federal service from October 1, 2019 through June 19, 2021. 

Thus, the record establishes that appellant received an overpayment of FECA wage-loss 

compensation.9

To determine the amount of the overpayment, the portion of SSA age-related retirement 

benefits attributable to federal service must be calculated. OWCP received documentation from 

SSA with respect to the specific amount of SSA age-related retirement benefits that were 

attributable to federal service. SSA provided appellant’s SSA age-related retirement benefit rates 

with FERS and without FERS from October 2019 through December 2020. OWCP provided its 

calculations for each relevant period based on SSA’s dual benefits form and determined that he 

received an overpayment in the amount of $31,650.61. The Board has reviewed OWCP’s 

calculation of dual benefits received by appellant for the period October 1, 2019 through June 19, 

2021 and finds that an overpayment of compensation in the amount of $31,650.61 was created.10

5

Id. at § 8116.

6

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

August 20, 2018).

7 FECA Bulletin No. 97-09 (issued February 3, 1997); see also E.M., Docket No. 19-0857 (issued December 31, 

2019); N.B., Docket No. 18-0795 (issued January 4, 2019).

8

Id. See also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550 (issued 

February 21, 2019).

9

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

10 See J.S., Docket No. 22-0369 (issued June 7, 2022); N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., 

Docket No. 18-1103 (issued March 5, 2019).
5

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.”

11

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

the overpayment.12

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.13 To determine if an individual was at fault with respect to the creation of an 

overpayment, section 10.433(b) provides that OWCP will examine 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.14

When a claimant receives benefits from the SSA as part of an annuity under FERS 

concurrently with disability/wage-loss compensation, 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.15

ANALYSIS -- ISSUE 2

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

the overpayment for the period October 1, 2019 through June 19, 2021.

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 not at 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.16 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, he could not reasonably have been aware 

11 5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017).

12 J.B., Docket 19-1244 (issued December 20, 2019); Robert W. O’Brien, 36 ECAB 541, 547 (1985).

13 20 C.F.R. § 10.433(a); see C.L., Docket No. 19-0242 (issued August 5, 2019); see also id. at § 10.430.

14 Id. at § 10.433(b); C.L., id.; see also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Determinations in an Overpayment, Chapter 6.300.4d (September 2020).

15 Id. at Chapter 6.300.4g(4) (September 2020).

16 Id.
6

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

prohibited dual benefit.17

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.18 The Board finds that appellant was without other options to avoid a 

potential FECA overpayment. Therefore, based on the circumstances described, the Board finds 

that OWCP improperly determined that he was at fault in the creation of the overpayment for the 

period October 1, 2019 through June 19, 2021.

19

As appellant was without fault in the creation of the overpayment for the period October 1, 

2019 through June 19, 2021, the case will be remanded to OWCP to consider the issue of waiver 

of recovery of the overpayment.20

CONCLUSION

The Board finds that appellant received a $31,650.61 overpayment of compensation 

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

benefits for the period October 1, 2019 through June 19, 2021, without an appropriate offset. The 

Board further finds that he was without fault in the creation of the overpayment for the period 

October 1, 2019 through June 19, 2021.

17 See M.W., Docket No. 22-0388 (issued January 19, 2023); N.V., Docket No. 20-0080 (issued January 21, 2022); 

D.W., Docket No. 20-1533 (issued May 27, 2021); J.B., Docket No. 19-0757 (issued April16, 2021); R.W., Docket 

No. 19-0334 (issued August 7, 2020).

18 Supra note 14 at § 10.433(b); see also supra note 14 at Chapter 6.300.4d (September 2020); J.S., Docket No. 

19-0824 (issued October 4, 2019).

19 See M.W., supra note 17; N.V., Docket No. 20-0080 (issued January 21, 2022).

20 In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.
7

ORDER

IT IS HEREBY ORDERED THAT the September 15, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and reversed in part, and the case is 

remanded for further proceedings consistent with this decision of the Board.

Issued: September 28, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board