United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.J., Representative of the Estate of E.J., 

Appellant

and

DEPARTMENT OF THE ARMY, TRAINING & 

DOCTRINE COMMAND, Fort Benning, GA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 18-1035

Issued: July 9, 2019

Appearances: Case Submitted on the Record

Robert S. Poydasheff, 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

JANICE B. ASKIN, Judge

On April 23, 2018 appellant, through counsel, filed a timely appeal from a March 26, 2018 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the 

Appellate Boards docketed the appeal as No. 18-1035. 

 

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 Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated April 4, 2019, the Board exercised its discretion and denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 18-1035 (issued April 4, 2019).
2

The Board has duly considered the matter and finds that the case is not in posture for 

decision. 

OWCP accepted that on December 14, 1989 the employee, then a 49-year-old fire 

protection inspector, sustained a cervical strain and an aggravation of preexisting cervical 

spondylosis as a result of a work-related motor vehicle accident. The employee stopped work on 

December 14, 1989 and did not return. OWCP paid wage-loss compensation and medical benefits. 

In February 1990 it placed the employee on the periodic rolls. The employee died on 

October 23, 2017.

By notice dated January 25, 2018, OWCP advised the employee’s estate of its preliminary

determination of an overpayment of compensation in the amount of $20,535.14 due to its failure 

to deduct the employee’s postretirement life insurance premiums from no reduction to 50 percent 

reduction for the period May 12, 1993 through October 23, 2017 and its failure to deduct optional 

life insurance premiums for the period February 5, 1991 through October 23, 2017. It also found 

that the employee had been at fault in the creation of the overpayment as he should have reasonably 

been aware that the premiums were not deducted from the ongoing wage-loss compensation 

benefits. OWCP advised the employee’s estate that it could submit evidence challenging the fact, 

amount, or finding of fault, and request waiver of recovery of the overpayment. It also directed 

the employee’s estate to complete an overpayment recovery questionnaire (Form OWCP-20), and 

advised it of its appeal rights. OWCP provided copies of the employee’s compensation benefits, 

which he received by check, along with its overpayment calculation worksheets. 

On January 31, 2018 appellant, the employee’s spouse, contested the finding of fault as to 

the overpayment and requested waiver. She denied having knowledge of anything that had 

occurred between the employee and OWCP. Appellant did not complete or return the Form 

OWCP-20 or provide any financial documentation.

By decision dated March 26, 2018, OWCP finalized the overpayment of compensation and 

the finding of fault, noting that the employee’s estate had not refuted either the fact or amount of 

the overpayment or the finding of fault. It required repayment of the overpayment in full. 

OWCP’s procedures regarding recovery of an existing debt from a deceased employee’s 

estate which were in effect at the time of OWCP’s March 26, 2018 decision provided as follows:3

“Upon learning that a claimant with an existing overpayment has died, the District 

Office shall immediately contact the OPM to determine the availability of any OPM 

benefits payable at the time of death that may be administratively offset, e.g., basic 

employee death benefits, survivor annuity benefits, or lump[-]sum refund of the 

deceased employee’s retirement contributions (5 C.F.R. § 831.1805).

“If the claimant recently passed away, OWCP may refer the debt to FMS [Financial 

Management System] for offset of the deceased claimant’s last Federal tax refund 

under the Treasury’s Offset Program (TOP). 31 C.F.R. § 285.2. The OWCP has a 

 

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

6.200.4(e)(2) (June 2009). 
3

special profile with FMS under TOP for the collection of these specific estate 

debts....”

To initiate action against an estate for debt recovery, OWCP’s procedures require that 

certain steps be taken. If the estate requests a waiver determination or otherwise asks to be excused

from the debt, then financial information should be requested from the estate and a waiver 

determination should be prepared. However, in most situations waiver will be denied and 

collection will proceed if the estate’s resources, after liabilities are established, allows for recovery 

of the overpayment. The Board has held that OWCP must follow its procedures when initiating 

action against an estate for debt recovery.4

The evidence of record does not substantiate the actions OWCP has taken to recover the 

overpayment debt through an offset from OPM benefits or through the Treasury Offset Program, 

prior to taking overpayment actions against the estate. Although OWCP has demanded repayment 

of the overpayment in full, the Board cannot make an informed decision regarding the amount of 

overpayment to be collected against the estate. The case shall therefore be remanded for OWCP 

to follow all procedures as outlined in Chapter 6.500.15 of its procedure manual.5 Following this

 

4 See C.A., Docket No. 18-0470 (issued March 7, 2019); K.S., Docket No. 11-2021 (issued August 21, 2012).

5 Supra note 3 at Chapter 6.500.15 (September 2018).
4

and any other further development as deemed necessary, OWCP shall issue a de novo decision 

regarding the deceased employee’s overpayment. 

IT IS HEREBY ORDERED THAT the March 26, 2018 decision of the Office of 

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

accordance with this order of the Board.

Issued: July 9, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board