P.W. and Department of the Army, Crane Army Ammunition Arsenal, Crane, IN (Board decision, February 11, 2021)

ECAB final decision. The Board reversed OWCP’s September 13, 2019 overpayment decision because the record did not establish that P.W. was covered by the retirement system used in its calculation. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

OWCP found that P.W. had received too much wage-loss compensation while also receiving Social Security retirement benefits. It used a calculation designed to offset benefits attributable to Federal Employees Retirement System service. The Board found that P.W.’s records instead indicated coverage under the Civil Service Retirement System and did not establish FERS enrollment. Because OWCP had not shown that its offset method applied or established the overpayment, the Board reversed the decision.

Decision snapshot

• Authority: FECA dual benefit provision, 5 U.S.C. § 8116(d).
• Outcome: September 13, 2019 overpayment decision reversed.
• Key point: A FERS offset worksheet did not establish an overpayment for a worker whose records indicated CSRS coverage.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.W. Appellant
)
)
and ) Docket No. 20-0756
) Issued: February 11, 2021
DEPARTMENT OF THE ARMY, CRANE
)
ARMY AMMUNITION ARSENAL, Crane, IN,
)
Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 6, 2020 appellant filed a timely appeal from a September 13, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 20-0756.1

The issues on appeal before the Board relate to OWCP’s finding of an overpayment of wage-loss compensation benefits due to appellant’s alleged concurrent receipt of Federal Employees’ Compensation Act2 (FECA) wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits without an appropriate offset for benefits attributable to the Federal Employees Retirement System (FERS).

1
The Board notes that, following the September 13, 2019 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 5 U.S.C. § 8101 et seq.
The Board finds that OWCP failed to properly develop the underlying issue of what portion of appellant’s SSA age-related retirement benefits were attributable to federal employment.3

OWCP’s procedures provide that an overpayment occurs when FECA compensation is not reduced by the FERS/FECA offset amount. Since the SSA will not report an offset amount until after SSA benefits are received, an overpayment will almost always occur and will need to be calculated for each period in which the offset amount was not withheld from compensation.4 The offset provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related retirement benefits that are attributable to federal service.5 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the FERS portion of SSA age-related retirement 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.6 In identifying the fact and amount of an overpayment of compensation following a claimant’s receipt of age-related SSA retirement compensation, the Board has observed that OWCP uses a FERS Offset Calculation Worksheet.7 This calculation worksheet is sent to SSA and the completed form is returned to OWCP setting forth purported SSA calculations as to the effective date and rate of SSA benefits without FERS and the effective date and rate of SSA benefits with FERS.8 Following receipt of the purported SSA calculations, a preliminary determination of overpayment is issued if a prohibited dual benefit was received.9

The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, such as the Civil Service Retirement System (CSRS). Other federal employees are not entitled to be enrolled in a federal retirement program. Therefore, OWCP’s procedures with regard to requesting offset information are not applicable to all recipients of FECA compensation and SSA age-related retirement benefits. Therefore, the information solicited on the FERS Offset Calculation Worksheet that OWCP sends to SSA is not applicable to non-FERS claimants and does not establish either the fact or amount of an overpayment.
Herein, the evidence of record does not establish that appellant was enrolled in FERS. The case record contains election of benefits documents indicating that appellant was covered under the Civil Service Retirement System, not FERS. The Board therefore finds that the September 13, 2019 decision must be reversed.

3
J.L., Docket No. 19-1806 (issued July 29, 2020).
4
Federal (FECA) Procedure Manual, Part 6 -- Debt Management -- Identifying and Calculating an Overpayment, Chapter 6.200.1 (h), (September 2018). 5 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).
6
FECA Bulletin No. 97-09 (issued February 3, 1997).
7
Id.
8
Id.
9
Supa note 2.

2
 IT IS HEREBY ORDERED THAT the September 13, 2019 decision of the Office of Workers’ Compensation Programs is reversed. Issued: February 11, 2021 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

3