United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.V., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

U.S. SECRET SERVICE, New York, NY, 

Employer 

__________________________________________ 

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Docket No. 14-1131 

Issued: November 14, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 17, 2014 appellant, through counsel, filed a timely appeal from a December 19, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding that he 

received an overpayment of compensation.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. 

 1

 The record also contains a December 9, 2013 schedule award decision. Appellant requested an oral hearing 

before an OWCP hearing representative on the December 9, 2013 schedule award decision, which formed the basis 

for the overpayment. A hearing representative issued a decision on August 5, 2014 setting aside the December 9, 

2013 schedule award decision. Any action by OWCP that can disturb the status of the case as appealed is null and 

void as the Board and OWCP may not exercise simultaneous jurisdiction over the same issue. See Douglas E. 

Billings, 41 ECAB 880 (1990). As OWCP issued its August 5, 2014 decision on the schedule award after appellant 

appealed the overpayment decision to the Board, it is null and void as the status of the schedule award determination 

affects the issue of the overpayment on appeal. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly issued its December 19, 2013 overpayment 

decision. 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated August 14, 2013, the 

Board set aside an October 10, 2012 decision finding that appellant had no more than a 7 percent 

permanent impairment of the left upper extremity and a 20 percent permanent impairment of the 

right upper extremity.3 The Board determined that the opinion of the impartial medical 

examiner, Dr. Ian Fries, a Board-certified orthopedic surgeon, was insufficient to establish the 

extent of the right or left upper extremity impairment and instructed OWCP to refer appellant for 

a new impartial medical specialist for an impairment evaluation. The Board further set aside an 

October 10, 2012 decision finding that appellant received an overpayment of compensation 

because he received excess compensation for a schedule award. It determined that it was 

premature to address the overpayment issue as the case was not in posture for determination 

regarding the extent of permanent impairment. The facts as set forth in the prior decision are 

hereby incorporated by reference. 

Following further development of the medical evidence, in a decision dated December 9, 

2013, OWCP found that appellant had no more than the previously awarded 20 percent 

impairment of the right upper extremity and 6 percent impairment of the left upper extremity. It 

noted that he would receive separate notification “regarding any potential overpayment of 

compensation.” 

On December 17, 2013 appellant, through his attorney, requested an oral hearing before 

an OWCP hearing representative on the December 9, 2013 decision. 

By decision dated December 19, 2013, OWCP reissued its October 12, 2012 

overpayment decision, finding that appellant received an overpayment of compensation in the 

amount of $20,227.47 because it failed to deduct a previously paid schedule award from his 

compensation for an additional impairment of the right upper extremity. It further denied waiver 

of recovery of the overpayment. 

On appeal appellant’s attorney argues that the Board should vacate the December 19, 

2013 decision and remand the case in accordance with its August 14, 2013 decision. 

 3

 Docket No. 13-798 (issued August 14, 2013). OWCP accepted that on September 11, 2001 appellant, then a 43-

year-old special agent, sustained bronchitis, bilateral shoulder tendinitis and instability, a right labral tear, a cervical 

disc herniation at C4-5, cervical radiculopathy and cervical spondylosis in the performance of duty. It had 

previously accepted a right rotator cuff strain and right shoulder subluxation causally related to a December 17, 

1991 work injury under file number xxxxxx765. By decision dated April 17, 1995, OWCP granted appellant a 

schedule award for an 11 percent impairment of the right upper extremity under file number xxxxxx765. 
3

LEGAL PRECEDENT -- ISSUE 1 

Section 10.431 of OWCP’s implementing regulations provide that, before seeking to 

recover an overpayment or adjust benefits, OWCP will advise the individual in writing that the 

overpayment exists and the amount of the overpayment.4 The written notification must also 

include a preliminary finding regarding whether the individual was at fault in the creation of the 

overpayment.5

 Additionally, OWCP is obliged to advise the individual of his or her right to 

inspect and copy the government records relating to the overpayment.6 Lastly, the preliminary 

notice must inform the individual of his or her right to challenge the fact or amount of the 

overpayment, the right to contest the preliminary finding of fault in the creation of the 

overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.7

 

The recipient of the alleged overpayment may present evidence in response to OWCP’s 

preliminary notice either in writing or at a prerecoupment hearing.8

 The evidence must be 

presented or the hearing requested within 30 days of the date of the written notice of 

overpayment.9 Failure to request the hearing within this 30-day time period shall constitute 

waiver of that right.10 

OWCP procedures provide that, once an overpayment is identified and calculated, it is 

responsible for determining whether the claimant was with fault or without fault, issuing a 

preliminary finding, and unless a hearing is requested, it is responsible for issuing a final 

decision.11 It indicates that any new determination which results in an overpayment, such as an 

amended schedule award, warrants a separate formal decision and preliminary overpayment 

finding.12 OWCP procedures further note that, if the claimant is determined to be without fault, 

Form CA-2202 (preliminary finding notice) must be released within 30 days of the date the 

overpayment is identified. It must clearly state the reason that the overpayment occurred and 

provide the preliminary finding that the claimant is without fault. Form CA-2202 informs the 

claimant of the right to submit evidence and the right to a prerecoupment hearing on the issues of 

fact and amount of overpayment and waiver.13 

 4

 20 C.F.R. § 10.431(a). 

5 Id. at § 10.431(b). 

6 Id. at § 10.431(c). 

7 Id. at § 10.431(d). 

8 Id. at § 10.432. 

9 Id. 

10 Id. 

11 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4 

(June 2009). 

12 Id. 

13 Id. at Chapter 2.600.4(a)(2) (June 2009). 
4

ANALYSIS 

By decision dated August 14, 2013, the Board set aside an October 10, 2012 OWCP 

decision finding that appellant received an overpayment of compensation because OWCP 

overpaid him for a schedule award. The Board found that the case was not in posture for 

determination regarding the extent of his permanent impairment and that it was consequently 

premature to address the issue of the overpayment. 

On remand, in a decision dated December 19, 2013, OWCP again found that appellant 

received an overpayment of compensation because he received schedule award compensation in 

excess of his permanent impairment. The Board finds, however, that OWCP failed to follow its 

procedures in issuing the December 19, 2013 overpayment decision. OWCP regulations provide 

that before seeking to recover an overpayment or adjust benefits, it will advise the individual in 

writing that the overpayment exists and the amount of overpayment.14 It must inform the 

individual of his or her right to challenge the fact or amount of the overpayment, the right to 

contest any preliminary finding of fault in the creation of the overpayment and the right to 

request a waiver of recovery of the overpayment.15 OWCP procedures further provide that a 

preliminary finding of overpayment must be provided within 30 days and clearly identify the 

reason that the overpayment occurred.16 

In this case, following its development of the schedule award issue on remand, OWCP 

did not issue a new preliminary determination notifying appellant of its findings, providing him 

with the right to challenge the fact or amount of overpayment or allowing him to submit new 

information regarding waiver of recovery of the overpayment. Consequently, it did not comply 

with the procedural rights afforded to appellant under its regulations.17 The Board, therefore, 

finds that the case must be remanded for OWCP. Upon remand OWCP shall issue a preliminary 

determination to appellant regarding any overpayment in accordance with its procedures, prior to 

making any final overpayment determination. 

CONCLUSION 

The Board finds that OWCP improperly issued its December 19, 2013 overpayment 

decision. 

 14 20 C.F.R. § 10.431(a). 

15 Id. at § 10.431(d). 

16 See supra note 11. 

17 Id. at §§ 10.431, 10.432; see also K.H., Docket No. 11-603 (issued September 27, 2011); K.G., Docket No. 

08-2135 (issued April 16, 2009). 
5

ORDER 

IT IS HEREBY ORDERED THAT the December 19, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision. 

Issued: November 14, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board