P.C., claiming as widow of R.C., and Department of the Air Force, Montana Air National Guard, Great Falls, MT (Board decision, May 4, 2021)

ECAB final decision. The Board reversed OWCP's February 26, 2020 finding of a $15,287.31 overpayment because the record did not establish that R.C. was covered by FERS. His widow, P.C., brought the appeal. 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

P.C. appealed on behalf of her late husband, an Air National Guard worker who had received workers' compensation and Social Security retirement benefits. OWCP found a $15,287.31 overpayment based on an offset for federal retirement benefits. The personnel record identified his retirement plan as “CS,” and the Board found no proof that he was enrolled in FERS. OWCP therefore had not shown that the claimed federal-service portion of the Social Security benefit required an offset. The Board reversed the overpayment decision.

Decision snapshot

• Authority: FECA dual-benefit offset under 5 U.S.C. § 8116(d)(2) and 20 C.F.R. § 10.421(a).
• Outcome: $15,287.31 overpayment decision reversed.
• Key point: A FERS calculation did not prove an overpayment for a worker without established FERS enrollment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.C., claiming as widow of R.C., Appellant ) )
and
)
) Docket No. 20-1546
DEPARTMENT OF THE AIR FORCE, ) Issued: May 4, 2021
MONTANA AIR NATIONAL GUARD,
)
Great Falls, MT, Employer
)
__________ )

Appearances: Case Submitted on the Record
William O. Bronson, Esq., for the appellant1
Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On August 21, 2020 appellant, through counsel, filed a timely appeal from a February 26, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 20-1546.

The issues on appeal before the Board relate to OWCP’s February 26, 2020 finding of an overpayment of wage-loss compensation in the amount of $15,287.31 for the period September 1, 1995 through January 7, 2019 for which the employee2 was without fault, due to his alleged concurrent receipt of Federal Employees’ Compensation Act3 (FECA) wage-loss compensation

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 The record reflects that the employee passed away on December 7, 2019. (RD 12/31/19) 3
5 U.S.C. § 8101 et seq. and Social Security Administration (SSA) age-related retirement benefits without an appropriate offset. OWCP also denied waiver of recovery of the overpayment.

The Board finds that OWCP failed to properly develop the underlying issue of what portion of the employee’s SSA age-related retirement benefits were attributable to federal employment.4

OWCP’s procedures provide that an overpayment occurs when FECA compensation is not reduced by the Federal Employees Retirement System (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.5 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.6 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 concurrent receipt of FECA benefits and federal retirement is a prohibited dual benefit.7 In identifying the fact and amount of overpayment of compensation following a claimant’s receipt of SSA age-related retirement benefits, the Board has observed that OWCP uses a FERS offset calculation worksheet.8 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.9 Following receipt of the purported SSA calculations, a preliminary determination of overpayment is issued if a prohibited dual benefit was received.10

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.

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.

4
See P.R., Docket No. 20-0851 (issued January 29, 2021); see also L.A., Docket No. 20-0949 (issued December 2, 2020).
5
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, Chapter 6.200.1(h) (September 2020). 6 See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).
7
FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).
8
Id.
9
Id.
10
Supra note 3.

2
 In the present case, a notification of personnel action (Form SF-50), dated October 28, 1985, indicates that the employee’s retirement plan was “CS,” not FERS. (RD 10/28/85) Furthermore, in a July 15, 1986 letter, OWCP advised the employee that he was receiving or may be entitled to receive benefits provided by the U.S. Civil Service Retirement Act. It requested that he complete the enclosed election forms indicating whether he preferred to receive FECA benefits or CSRS benefits for the same period of time.

Accordingly, the Board finds that the evidence of record does not establish that the employee was enrolled in FERS.11 As OWCP has not established that the employee received SSA age-related retirement benefits, based on his federal service, concurrently with FECA disability compensation from OWCP, without proper offset, it has not established that he received an overpayment of compensation. The Board therefore finds that the February 26, 2020 decision must be reversed.

IT IS HEREBY ORDERED THAT the February 26, 2020 decision of the Office of Workers’ Compensation Programs is reversed.

Issued: May 4, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

11
See D.B., Docket No. 18-0358 (issued January 21, 2020).

3