United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Syracuse, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1058

Issued: February 8, 2018

Appearances: Case Submitted on the Record

Kimberly Slimbaugh, 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 April 19, 2017 appellant, through counsel, filed a timely appeal from an October 27, 

2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board 

docketed the appeal as No. 17-1058.

The Board has duly considered the matter and finds that the case must be remanded to 

OWCP. On September 26, 2016 OWCP issued a preliminary notice of its determination that 

appellant received an overpayment of compensation in the amount of $13,898.98 for the period 

November 9 to July 23, 2016. It also informed her of its preliminary determination that she was 

at fault in creating the overpayment. OWCP provided appellant with an overpayment recovery 

questionnaire (Form OWCP-20). It notified her that, within 30 days of the date of the letter, she 

could request a telephone conference, a final decision based on the written evidence, or a 

prerecoupment hearing. In an October 27, 2016 decision, OWCP finalized its determination that 

appellant received an overpayment of compensation in the amount of $13,898.98, that she was at 

 

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

fault in creating the overpayment, and that she was therefore not entitled to waiver. It indicated 

that she had not responded to its preliminary notice of overpayment. A review of the record, 

however, demonstrates that on October 25, 2016 OWCP received appellant’s request for a 

telephone conference and a completed overpayment recovery questionnaire (Form OWCP-20).

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 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.3

OWCP is required to follow certain procedures in overpayment cases. Section 10.431 of 

FECA’s implementing regulations provides that, before seeking recovery of an overpayment, 

OWCP shall advise a claimant in writing that the overpayment exists and the amount of the 

overpayment.4 The written notification must include a preliminary finding regarding whether the 

individual was at fault in the creation of the overpayment.5 Additionally, OWCP is obliged to 

advise the individual of her right to inspect and copy the government records relating to the 

overpayment.6 Lastly, the preliminary notice must inform the individual of 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 a waiver of recovery of the 

overpayment.7

As noted above, on October 25, 2016, appellant made a timely request for a telephone 

conference and submitted an overpayment recovery questionnaire. OWCP, however, did not 

conduct a telephone conference before issuing its final overpayment decision. Therefore, 

appellant was not provided the opportunity to provide testimonial evidence regarding the alleged 

overpayment.8

Accordingly, the case is not in posture for a decision and the case will be remanded for a 

timely proper response to appellant’s request for a telephone conference. Following this and 

such other development as deemed necessary, OWCP shall issue an appropriate decision. 

 

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

3

Id.

4 20 C.F.R. § 10.431(a).

5

Id. at § 10.431(b).

6

Id. at § 10.431(c).

7

Id. at 10.431(d).

8 See Jimmie R. Fornero, Docket No. 99-0875 (issued January 16, 2001) (remanding the case to OWCP to 

consider the claimant’s request for a telephone conference as he was not provided the opportunity to present 

testimonial evidence regarding his request for waiver); see also Scherrie L. Stanley, 53 ECAB 433 (2002).
3

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

Compensation Programs dated October 27, 2016 is set aside and the case is remanded for further 

action consistent with this order of the Board.

Issued: February 8, 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