United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.G., Appellant 

and 

SOCIAL SECURITY ADMINISTRATION, JFK 

FEDERAL BUILDING, Boston, MA, Employer 

__________________________________________ 

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Docket No. 15-0891 

Issued: August 9, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 3, 2015 appellant filed a timely appeal from a January 14, 2015 merit decision 

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

Employees’ Compensation Act1

 (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 $3,072.00 for the period May 6 to July 28, 2012 

because she returned to work full time, but continued to receive partial disability compensation; 

and (2) whether it properly denied waiver of recovery of the overpayment. 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated May 22, 2014, the 

Board remanded a December 21, 2012 OWCP decision which denied waiver of an overpayment 

 1

 5 U.S.C. § 8101 et seq.
2

of compensation.2

 The facts and circumstances outlined in the prior Board decision are 

incorporated herein by reference. The facts relevant to the present appeal are set forth below. 

On September 29, 1997 appellant, then a 30-year-old computer assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on September 26, 1997 she sustained lower back pain 

when she moved computer equipment and tables to different locations in the office. 

On December 15, 1997 appellant was placed on the periodic rolls. 

On September 28, 1998 appellant began to work part-time light duty working five hours 

per day. On May 6, 2012 appellant returned to work full time with no restrictions. 

OWCP continued to disburse periodic roll compensation payments in the net amount of 

$1,024.00 each for the periods of May 6 to June 2, June 3 to 30, and July 1 to 28, 2012. It 

calculated the total amount of wage-loss compensation for the period May 6 to July 28, 2012 for 

a total overpayment of $3,072.00. 

On August 17, 2012 OWCP reduced appellant’s wage-loss compensation to zero finding 

that her actual earnings as a legal assistant fairly and reasonably represented her wage-earning 

capacity. 

On September 5, 2012 OWCP issued a preliminary overpayment determination that 

appellant received an overpayment in compensation in the amount of $3,072.00 for the period 

May 6 to July 28, 2012 because she returned to work full time, but continued to receive disability 

compensation. It found that she was without fault in the creation of the overpayment and 

requested that she provide financial information in order to determine waiver of recovery of the 

overpayment. Appellant was advised that, if she failed to complete the Form OWCP-20 and 

submit financial documents in support of waiver, within 30 days, pursuant to 20 C.F.R. § 10.438 

waiver would be denied. 

On October 1, 2012 OWCP received a signed overpayment action request form from 

appellant dated September 24, 2012. Appellant requested a telephone conference on the issues 

of fault and possible waiver of the overpayment. OWCP also received a completed overpayment 

recovery questionnaire (Form OWCP-20) from appellant dated September 25, 2015. Appellant 

explained that she was trying to climb out of debt and noted that she attached a credit report to 

show how much she owed that she was not able to pay. She stated that being on disability 

compensation did not give her any opportunity to get ahead financially. Appellant was 

contesting the overpayment because she notified OWCP and the employing establishment more 

than a month in advance that she was returning to work and she contended that she had no 

control over stopping her disability compensation payments in the system. 

Appellant provided a credit record which demonstrated that she owed $1,019.00 to 

Cavalry Portfolio Services for a past due amount, $25,000.00 for U.S. Department of Education 

installment loan, and $999.00 to a collection bureau for a past due amount, $3,495.00 to Chase 

bank, and $4,865.00 to a utilities company. She submitted bank statements which demonstrated 

that she had $3.13 in a checking account, a negative balance in a credit union account, and 

$404.07 in a savings account. 

 2

 Docket No. 13-1145 (issued May 22, 2014). 
3

Appellant reported that she received total monthly income of $2,818.26 from earnings 

and that she had three dependents. She indicated that she had monthly expenses of $1,100.00 for 

rent or mortgage, $600.00 for food, $500.00 for clothing, $200.00 for utilities, $50.00 for gas, 

$200.00 for cable, $153.00 and $164.00 for telephones, $240.00 for gasoline, $250.00 for other 

miscellaneous household expenses, $133.00 for automobile insurance, $120.00 for personal 

necessities, and $55.00 for monthly medication. Appellant further reported that she owed 

$3,495.00 for a car loan with monthly payments of $373.66 and $4,865.00 back bill for utilities 

with monthly payments of $300.00 for total monthly expenses of $4,438.66. She noted that she 

had $404.07 in her savings account. 

By letter dated November 15, 2012, OWCP stated that it received appellant’s completed 

overpayment recovery questionnaire and request for a telephone conference. It advised appellant 

to submit proof of her monthly bills and payments from the employing establishment for one 

month in order to schedule a telephone conference. OWCP reported that if no copies of the bills 

were received within 15 days, it would issue a final decision on the overpayment of $3,072.00. 

On December 4, 2012 OWCP received additional financial information from appellant, 

including employing establishment earnings and leave statements for November 2012, a copy of 

her lease agreement which indicated that rent was $1,100.00 a month, and a November 23, 2012 

letter from CVS Pharmacy where it reflected that she had three medications she paid $60.00 for 

monthly. 

By decision dated December 5, 2012, OWCP issued a final decision, finding that 

appellant had not submitted sufficient financial information to support a request for waiver. 

On December 21, 2012, OWCP voided its December 5, 2012 decision and issued a new 

decision finalizing its preliminary determination that appellant received an overpayment in the 

amount of $3,072.00. It denied waiver of recovery of the overpayment finding that the financial 

information received did not grant a basis for waiver of recovery of the overpayment. OWCP 

determined that it would deduct $150.00 every 28 days from her continuing compensation 

benefits. 

By order remanding case dated May 22, 2014, the Board set aside the December 21, 2012 

OWCP decision finding that OWCP did not review and consider the financial information 

appellant submitted on October 1, 2012.3

 It remanded the case for OWCP to consider all of the 

financial information and to issue an appropriate decision on the issue of overpayment. 

Following the Board’s order, appellant submitted a May 28, 2014 statement. She alleged 

that she was never given the opportunity to defend herself on any of the allegations against her 

by OWCP or the employing establishment. Appellant believed that the actions taken against her 

were retaliation for her prior Equal Employment Opportunity (EEO) activity, union activity, and 

her involvement with prior OWCP claims. 

In a June 2, 2014 statement, appellant contended that she was being set up to get kicked 

off of workers’ compensation since she began to attend college classes. She stated that OWCP 

did nothing to help her return to work full-time, but she rehabilitated herself back to full-time 

 3 Supra note 2. 
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employment. Appellant reported that the workers’ compensation situation had created a hostile 

work environment for her. She alleged that there was an abuse of authority on the part of the 

supervisors and OWCP personnel toward her. 

On January 14, 2015 OWCP issued a de novo decision which finalized the overpayment 

in the amount of $3,072.00 for the period May 6 to July 28, 2012.4

 It found that appellant was 

without fault, but denied waiver of recovery of the overpayment finding that the financial 

information received did not support her alleged expenditures. 

LEGAL PRECEDENT 

Section 10.431 of OWCP’s implementing regulations provides 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.5 The written notification must also 

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

overpayment.6 Additionally, OWCP is obliged to advise the individual of his or her right to 

inspect and copy the government records relating to the overpayment.7

 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 waiver of recovery of the overpayment.8 The 

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

notice either in writing or at a prerecoupment hearing.9 The evidence must be presented or the 

hearing requested within 30 days of the date of the written notice of overpayment.10 Failure to 

request the hearing within this 30-day time period shall constitute a waiver of that right.11

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.12 It indicates that any new determination which results in an overpayment warrants a 

separate formal decision and preliminary overpayment finding.13 OWCP procedures further note 

 4

 The decision noted that appellant began making payments in the amount of $75.00 on October 4, 2013 and that 

the debt balance was currently $2,397.00. 

5

 20 C.F.R. § 10.431(a). 

6

 Id. at § 10.431(b). 

7 Id. at § 10.431(c). 

8 Id. at §10.431(d). 

9 Id. at § 10.432. 

10 Id. 

11 Id.

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

(June 2009). 

13 Id.
5

that, if the claimant is determined to be without fault, Form CA-2202 (preliminary finding 

notice) must be released within 20 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.14 

ANALYSIS 

The Board finds the case not in posture for a decision. 

In its May 22, 2014 order remanding case, the Board set aside OWCP’s December 21, 

2012 overpayment decision as OWCP had not considered the financial information appellant had 

submitted on October 1, 2012 in support of her request for waiver. The Board noted that 

appellant had requested a telephone conference on the issues of fault and possible waiver of the 

overpayment, but no telephone conference was held. The Board remanded the case for OWCP 

to consider the financial information submitted and issue an appropriate decision, after such 

further development of the evidence as necessary. 

On January 14, 2015, OWCP issued a de novo decision, again denying waiver of 

recovery of the $3,072.00 overpayment, stating that there was no financial information submitted 

in response to OWCP’s November 12, 2012 request for financial records and that there was no 

evidence that appellant made payments to her alleged payees. The Board finds, however, that 

OWCP failed to follow its procedures in issuing its January 14, 2015 decision.15 

Following its development of the issue of possible waiver, OWCP failed to issue a new 

preliminary determination providing appellant with the right to challenge the fact or amount of 

overpayment or allowing her to submit new information regarding waiver of recovery of the 

overpayment. The Board has previously held that if a case has been remanded to OWCP for 

additional development regarding waiver of overpayment, OWCP should issue a new 

preliminary overpayment determination providing appellant with new appeal rights, including 

the right to a prerecoupment hearing, and the opportunity to submit current financial information 

which OWCP will evaluate to properly determine whether the overpayment should be waived.16 

The Board has explained that OWCP’s failure to issue a preliminary determination following the 

Board’s remand of an overpayment case infringes appellant’s procedural rights under OWCP 

regulations.17 

Accordingly, the Board finds that the case must be remanded for OWCP to issue a 

preliminary determination regarding the overpayment, in accordance with its procedures, prior to 

 14 Id. at Chapter 2.600.4(a)(2) (June 2009). 

15 20 C.F.R. § 10.431, 103432; see also K.H., Docket No. 11-603 (issued September 27, 2011); K.G., Docket No. 

08-2135 (issued April 16, 2009). 

16 J.R., Docket No. 12-986 (issued November 13, 2012). 

17 B.T., Docket No. 14-1909 (issued May 19, 2015). The Board found that OWCP’s failure to issue a preliminary 

determination following the Board’s remand of an overpayment case infringed appellant’s procedural rights under 

its regulations at 20 C.F.R. §§ 10.431-432. 
6

making any final overpayment determination. Following such further development as OWCP 

deems necessary, it shall issue an appropriate decision on whether overpayment should be 

waived.18

CONCLUSION 

The Board finds the case not in posture. The case must be remanded to OWCP to issue a 

preliminary determination regarding the overpayment, in accordance with its procedures. 

ORDER 

IT IS HEREBY ORDERED THAT the January 14, 2015 decision of the Office of 

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

consistent with this decision of the Board.19

Issued: August 9, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 18 In light of the disposition reached in issue 1, issue 2 is moot. 

19 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.