United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.L., Appellant

and

DEPARTMENT OF THE INTERIOR, BUREAU

OF RECLAMATION, Dutch John, Utah, 

Employer

__________________________________________

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Docket No. 18-1028

Issued: June 20, 2019

Appearances: Case Submitted on the Record

David J. Holdsworth, 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 application for review from a 

March 19, 2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk 

of the Appellate Boards docketed the appeal as No. 18-1028.2

By notice dated July 27, 2017, OWCP advised appellant of its preliminary determination 

that she had received a $41,516.31 overpayment of compensation for the period from January 7, 

2010 through July 22, 2017 because she received prohibited dual benefits in the form of wage-loss 

 

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 Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R. § 501.5(b). 

By order dated November 19, 2018, the Board exercised its discretion and denied the request, finding that the 

arguments on appeal could adequately be addressed based on the case record. Order Denying Request for Oral 

Argument, Docket No. 18-1028 (issued November 19, 2018). 
2

compensation under the Federal Employees’ Compensation Act3(FECA) and from the Social 

Security Administration (SSA) without an appropriate offset. It also made a preliminary 

determination that she was at fault in the creation of the overpayment as she was aware or should 

have reasonably been aware that her compensation payments had been paid incorrectly. OWCP 

requested that appellant complete an overpayment recovery questionnaire (Form OWCP-20) and 

submit supporting financial documents. Additionally, it notified her that, within 30 days of the 

date of the letter, she could request a telephone conference, a final decision based on written 

evidence, or a prerecoupment hearing by completing an attached overpayment action request. 

On August 8, 2017 appellant authorized her son D.L. to represent her. She indicated that 

his address of record was in Reno, Nevada. Appellant and her representative forwarded an 

overpayment action request dated September 1, 2017, received by OWCP on September 5, 2017,

in which the box requesting a telephone conference was checked.4

On November 13, 2017 OWCP issued a revised preliminary overpayment determination. 

The only change to the July 27, 2017 determination was that the amount of the overpayment was 

modified to $14,420.81. Appellant was again provided a Form OWCP-20 and an overpayment 

action request and was again afforded 30 days from the date of the preliminary determination, as 

determined by the postmark of her submission. A copy of the determination was sent to her 

representative. On November 28, 2017 the copy of the November 13, 2017 preliminary 

determination, addressed to appellant’s representative at his address of record in Reno, Nevada

was returned to OWCP as undeliverable, stating “not at this address.”

On December 12, 2017 appellant’s representative telephoned OWCP. He indicated that he 

had not received a copy of the November 13, 2017 preliminary determination, noting that appellant 

had just given her copy to him. He requested additional time to submit additional evidence. 

OWCP responded, “So I gave him until December 26, and advised him that I can’t give him 

additional time beyond the stated 30 days if he wants to request a hearing.”

In a Form OWCP-20 dated December 14, 2017, received by OWCP on December 18, 

2017, appellant and her representative again requested a telephone conference, disagreed with the 

fact of overpayment, disagreed with the amount of the overpayment, and requested waiver of 

recovery of the overpayment. The attached OWCP-20 indicated that there had been no change 

from the previously submitted questionnaire. Appellant indicated that she had requested counsel

to assist in this matter.

By letter dated December 19, 2017, counsel again requested a telephone conference. He 

attached an overpayment action request, also indicating that he was challenging fact and amount 

of the overpayment and requesting waiver. 

By decision dated March 19, 2018, OWCP finalized the preliminary determination of a 

$14,420.81 overpayment of compensation. It found appellant at fault because she had not reported

 

3 5 U.S.C. § 8101 et seq.

4 Appellant’s representative also contested fact of overpayment. The Form OWCP-20 and financial information 

were provided. 
3

that she was receiving SSA payments as part of an annuity for federal service. As such, she was 

found to be not entitled to waiver of recovery of the overpayment. OWCP required repayment of 

the overpayment by deducting $300.00 every 28 days from appellant’s continuing FECA 

compensation payments. 

OWCP is required to follow certain procedures in overpayment cases. Section 10.431(a) 

of OWCP regulations provides that, before seeking recovery of an overpayment, it will advise a 

claimant in writing that the overpayment exists, and the amount of the overpayment.5 The written 

notification must include a preliminary finding regarding whether the individual was at fault in the 

creation of the overpayment.6 Additionally, OWCP is obliged to advise the individual of his or 

her right to inspect and copy the government records relating to the overpayment.7 Lastly, the 

preliminary notice 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, if applicable, and the right to request a waiver of recovery of the overpayment.8 The 

recipient of the alleged overpayment may present evidence in response to OWCP’s preliminary 

notice, either in writing or at a prerecoupment hearing requested within 30 days.9

The Board finds that, under the facts presented, appellant was not provided the required 

opportunity to provide testimonial evidence regarding the alleged overpayment.10 On 

November 13, 2017 OWCP informed appellant of its preliminary determination that she received 

a $14,420.81 overpayment of compensation and that she was at fault in the creation of the 

overpayment and thus not entitled to waiver of recovery of the overpayment. It included her 

procedural rights, including the right to request a telephone conference within 30 days. The record 

supports that a copy of the November 13, 2017 preliminary determination was forwarded to 

appellant’s representative D.L. at his address of record, however, this was returned to OWCP as 

undeliverable. When D.L. notified OWCP by telephone on December 12, 2017 that he had not 

received the November 13, 2017 preliminary determination until that day when appellant furnished 

a copy, OWCP advised him that he was afforded until December 26, 2017 to submit additional 

information. While the telephone memorandum of record stated “(I) advised him that I can’t give 

him additional time beyond the stated 30 days if he wants to request a hearing,” the statement is 

unclear as to when the allotted 30 days began. On an overpayment action request form dated 

December 14, 2017, received by OWCP on December 18, 2017, appellant again requested a 

telephone conference. 

Accordingly, for the foregoing reasons, the March 19, 2018 decision will be set aside and 

the case will be remanded to OWCP to provide appellant her right to a telephone conference. 

 

5 20 C.F.R. § 10.431(a).

6

Id. at § 10.431(b).

7

Id. at § 10.431(c).

8

Id. at § 10.431(d).

9

Id. at § 10.432.

10 See I.R., Docket No. 18-0088 (issued April 9, 2018).
4

Following this and such other development deemed necessary, OWCP shall issue an appropriate 

decision.

IT IS HEREBY ORDERED THAT the March 19, 2018 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: June 20, 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