United States Department of Labor

Employees’ Compensation Appeals Board

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A.J., widower of P.J., Appellant

and

DEPARTMENT OF AGRICULTURE, RURAL 

HOUSING SERVICE, St. Louis, MO, Employer

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Docket No. 19-1261

Issued: April 30, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On May 13, 2019 appellant, the employee’s widower, filed a timely appeal from 

December 11, 2018 and January 17, 2019 merit decisions of the Office of Workers’ Compensation 

Programs (OWCP).1 The Clerk of the Appellate Boards docketed the appeal as No. 19-1261.

By decision dated December 11, 2018, OWCP found that appellant forfeited survivor’s 

benefit compensation from May 4, 1993 through December 8, 2018 in the amount of $453,652.20.

By decision dated January 17, 2019, OWCP finalized an overpayment of compensation 

occurred in the amount of $453,652.20 and that appellant was at fault in the creation of the 

overpayment.2 It explained that appellant had received survivor’s benefits that commenced on 

 

1 The Board notes that,following the January 17, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.

2 OWCP had issued a preliminary determination on December 11, 2018, finding that appellant had received an 

overpayment of compensation for which he was at fault in its creation and,therefore,ineligible for waiver of recovery 

of the overpayment.
2

April 4, 1991 following his wife’s death in the performance of duty that day. Appellant was 

eligible to receive survivor’s benefits because he had purportedly not remarried before the age of 

55. OWCP found that the forfeiture and overpayment of compensation occurred because appellant 

had remarried on May 4, 1993, before he turned 55 years of age, but had not reported his 

remarriage on claims for continuance of compensation (Form CA-12). The form asks if the 

compensationer has married since the death of the employee and includes a certification that, by 

his or her signature, the information reported on the form is true and correct.

The Board, having duly considered the matter, finds that this case is not in posture for 

decision. Upon examining the case record, it is found that the record is incomplete as it contains 

no evidence prior to 2003. Other than a compensation record, there is nothing in the record 

concerning CA-12 forms signed by appellant or other evidence dating back to May 4, 1993 when 

he remarried, which is the beginning of the period of forfeiture and overpayment. The oldest Form 

CA-12 of record was signed by appellant on January 20, 2003.

Pursuant to 20 C.F.R. § 501.2(c)(1), the Board’s review of a case is limited to the evidence 

in the case record that was before OWCP at the time of its final decision. Decisions on claims are 

based on the written record, which may include forms, reports, letters, and other evidence of 

various types such as photographs, videotapes, or drawings.3 Evidence may not be incorporated 

by reference, and evidence from another claimant’s case file may not be used.4 All evidence that 

forms the basis of a decision must be in that claimant’s case record.5

As the record lacks sufficient evidence for the Board to render an informed decision, the 

case shall be remanded to OWCP for further development. On remand OWCP shall obtain all 

evidence included in the employee’s record regarding her death and the commencement of 

appellant’s survivor’s benefits and, especially, any certifications appellant made beginning in 1993 

that he had not remarried. After OWCP has reconstructed and properly assembled the record 

consistent with the above-noted directive, it shall issue a de novo decision.

 

3 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a 

(June 2011).

4

Id.

5

Id.
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IT IS HEREBY ORDERED THAT the January 17, 2019 and December 11, 2018 

decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded 

to OWCP for further proceedings consistent with this order of the Board.6

Issued: April 30, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

6 The Board notes that, during the pendency of this appeal, OWCP issued a May17, 2019 decision,which revised 

the period and amount of the overpayment. The Board and OWCP may not simultaneously exercise jurisdiction over 

the same issue(s). 20C.F.R. §§ 501.2(c)(3), 10.626; see J.W., Docket No. 19-1688, n.1 (issued March 18, 2020); J.A., 

Docket No. 19-0981, n.2 (issued December 30, 2019; ArloniaB. Taylor, 44 ECAB 591 (1993); Douglas E. Billings, 

41 ECAB 880 (1990). Consequently, OWCP’s May17, 2019 decision is set aside as null and void.