United States Department of Labor

Employees’ Compensation Appeals Board

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C.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Akron, OH, Employer

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Docket No. 18-0079

Issued: May 2, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

ALEC J. KOROMILAS, Alternate Judge

On October 13, 2017 appellant, through counsel, filed a timely appeal from a 

September 21, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP), 

which found appellant at fault in the creation of an overpayment of compensation in the amount 

of $21,256.31. The overpayment, which covered the period August 1, 2013 through May 30, 

2015, was due to OWCP’s failure to deduct the portion of appellant’s Social Security

Administration (SSA) benefit attributable to her federal employment from her the Federal 

Employees’ Compensation Act2 wage-loss compensation. The appeal was docketed as No. 18-

0079. 

In a preliminary notice of overpayment dated June 15, 2015, OWCP found that an 

overpayment of compensation in the amount of $32,044.89 had occurred. It explained that the 

 

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 5 U.S.C. § 8101 et seq.
2

overpayment occurred because a portion of appellant’s SSA benefits, that she received from 

August 1, 2013 to May 30, 2015, was based on credits earned while working in the federal 

government, and that this portion of her SSA benefit was a prohibited dual benefit. OWCP found 

appellant at fault because she should have reasonably been aware that her SSA benefits required 

offset based on the language of EN1032 forms and OWCP letters dated February 19 and 

November 5, 2010.

By decision dated January 21, 2016, an OWCP hearing representative finalized the

June 15, 2015 preliminary overpayment decision, as modified. She found that OWCP had 

miscalculated that portion of the overpayment for that period December 1, 2014 through May 30, 

2015, finding that the overpayment for that period was $5,846.49, for a new overpayment of 

compensation total of $21,256.31. The hearing representative further found appellant at fault in 

the creation of the overpayment and noted that appellant’s monthly income exceed her FECA 

compensation by over $200.00 monthly, and that she had assets of approximately $137,000.00. 

She ordered that recovery in the amount of $200.00 was to be deducted from appellant’s continuing 

compensation every 28-day period.

By decision dated May 12, 2017, the Board set aside the January 21, 2016 decision and 

remanded the case to OWCP. The Board ordered that, on remand, OWCP obtain additional 

information from SSA. This should include verification of the date FERS offset began with an 

explanation as to why this date was chosen and include references to appropriate SSA policies. 

SSA should then provide appellant’s SSA rate with and without any offset from FERS. Following 

this and such further development deemed necessary, OWCP was to issue an appropriate decision.3

On June 1, 2017 OWCP requested that SSA explain why August 1, 2013 was used to 

determine the beginning period of a prohibited dual payment. It sent a second request on 

August 23, 2017. SSA did not respond.

On September 21, 2017 OWCP issued a de novo final overpayment decision. It found that 

appellant received an overpayment of compensation in the amount of $21,256.31 for the period

August 1, 2013 through May 30, 2015 and found her at fault in the creation of the overpayment. 

OWCP noted that the current balance of the overpayment was $16,856.31 and that SSA did not 

respond to its two inquiries for further information. It indicated that it had completely reviewed 

the evidence of record, and that beginning August 1, 2013, her previous SSA disability income 

was converted to regular retirement, either based on her election to receive retirement benefits or 

because she reached retirement age.4 OWCP concluded that, as appellant had not provided 

sufficient information to refute the amount of the overpayment or the finding of fault, the evidence 

of record supported a final decision of overpayment with fault. Recovery was set at $200.00 each 

continuing compensation period.

The Board finds that OWCP failed to follow the instructions in the May 12, 2017 Board 

decision by prematurely issuing a de novo final overpayment decision prior to receiving an 

 

3 Docket No. 16-1190 (issued May 12, 2017).

4 OWCP noted that appellant could elect SSA retirement benefits at any time after she reached the age of 62 on 

December 31, 2010.
3

explanation from SSA as to why August 1, 2013 was selected as the date appellant began receiving 

SSA retirement benefits. Moreover, OWCP’s 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 the overpayment.5 It 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, and the right to request a waiver of recovery of the 

overpayment.6 OWCP must clearly identify the reason that the overpayment occurred and the 

basis for any fault finding.7

The Board has held that a preliminary notice of findings is essential in overpayment cases 

because OWCP regulations limit further review of a final decision concerning overpayment to the 

Board. A claimant is prohibited from requesting a hearing, or reconsideration, following a final

overpayment decision.8 The claimant is, therefore, precluded from introducing new evidence to

rebut findings made in a final overpayment decision.

As OWCP did not obtain clarifying information from SSA prior to issuing its 

September 11, 2017 decision, and as it did not issue a new preliminary overpayment determination, 

the case must again be remanded to OWCP. Until appropriate information is received from SSA, 

the fact and amount of the overpayment and whether appellant was at fault cannot be determined. 

Moreover, appellant has not had the opportunity to submit new financial information. Thus, 

OWCP did not have adequate information to evaluate her current financial situation.9

On remand OWCP should obtain the clarifying information described above regarding its 

selection of the date offset of appellant’s SSA benefit began. If it finds that an overpayment of 

compensation was created, it should then issue a new preliminary overpayment determination with 

an appropriate overpayment action request and overpayment questionnaire (Form CA-20) and 

instructions for appellant to provide supporting financial information. After such further 

development, OWCP shall issue an appropriate final overpayment decision on the issues of fact,

amount, fault, waiver, and recovery of the overpayment. 

 

5 20 C.F.R. § 10.431(a).

6

Id. at § 10.431(d).

7

Id.

8 See 20 C.F.R. §§ 10.431, 10.432; K.G., Docket No. 17-0517 (issued September 8, 2017).

9 See J.R., Docket No. 12-986 (issued November 13, 2012).
4

IT IS HEREBY ORDERED THAT the September 21, 2017 decision of the Office of 

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

consistent with this order of the Board.

Issued: May 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board