United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Gansevoort, NY, Employer 

__________________________________________ 

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Docket No. 16-1325 

Issued: November 2, 2016 

Appearances: Case Submitted on the Record

Lawrence Elmen, Esq., for the appellant1

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

On June 10, 2016 appellant, through counsel, filed a timely appeal of a December 21, 

2015 decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was 

docketed as No. 16-1325. 

The Board has reviewed the evidence on appeal and finds the case must be remanded to 

OWCP. On November 17, 2015 OWCP issued a preliminary determination that an overpayment 

of $95,128.32 was created from July 27, 2009 to October 23, 2011. It found appellant had failed 

to disclose self-employment earnings as required on EN-1032 forms, and that he was at fault in 

creating the overpayment. The preliminary determination included an OWCP-20 overpayment 

recovery questionnaire and overpayment actions that could be requested, including a request for 

a telephone conference. 

By decision dated December 21, 2015, OWCP finalized its preliminary determination of 

a $95,128.32 overpayment of compensation. It asserted that “no response has been received to 

the preliminary decision.” 

 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

On appeal, counsel argues that OWCP failed to properly consider evidence that was 

submitted in response to the November 17, 2015 preliminary determination. A review of the 

record indicates that on December 21, 2015, as established by the received date in the Integrated 

Federal Employees’ Compensation System, OWCP received additional evidence. This evidence 

included a request for a telephone conference dated December 16, 2015, and a completed 

OWCP-20 overpayment recovery questionnaire dated December 16, 2015. 

It is well established that OWCP must review all evidence submitted by a claimant and 

received by OWCP prior to issuance of its final decision.2 This includes evidence that was 

received on the same day as the issued decision.3 As the Board’s decisions are final as to the 

subject matter appealed, it is crucial that all evidence relevant to the subject matter of the claim 

which was properly submitted to OWCP prior to the time of issuance of its final decision be 

addressed by OWCP.4

 

The record indicates that OWCP received relevant evidence on December 21, 2015, the 

date of the final decision. OWCP did not review the evidence, and specifically indicated that no 

response to the preliminary determination had been received. Accordingly, the case will be 

remanded to OWCP to properly review the evidence of record. After such further development 

as is deemed necessary, it should issue an appropriate decision. 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 21, 2015 is set aside and the case remanded for further 

action consistent with this order of the Board. 

 2 William A. Couch, 41 ECAB 548 (1990). 

3 Patsy R. Tatum, 44 ECAB 490 (1993); see also Linda Johnson, 45 ECAB 439 (1994). 

4 Id. 
3

Issued: November 2, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board