United States Department of Labor

Employees’ Compensation Appeals Board

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J.O., Appellant (widower of A.O.)

and

U.S. DEPARTMENT OF STATE, FOREIGN 

SERVICE, Washington, DC, Employer

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Docket No. 20-0938

Issued: December 3, 2020

Appearances: Case Submitted on the Record

Stephanie N. Leet, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On March 26, 2020 appellant, through counsel, filed a timely appeal from a September 30, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of 

the Appellate Boards docketed the appeal as Docket No. 20-0938.2

On August 7, 1998 appellant (then 45 years old), the employee’s widower, filed a claim 

for survivor’s benefits (Form CA-5), alleging that on that date the employee (then 36 years old) 

died of a massive cranial injury caused by a terrorist bombing attack at the American Embassy in 

Nairobi, Kenya. He listed their daughter, M.O., then 2 years old, their daughter, T.O., then 4 years 

 

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 The Board notes that, following the September 30, 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 

evidence for the first time on appeal. Id. 
2

old, and stepdaughter, J.O., then 14 years old, as the children from his marriage with the employee 

appellant. Appellant provided their marriage certificate, the employee’s death certificate, and the 

birth certificates of the minor children. The record indicates that OWCP initially paid survivor 

benefits for appellant and the minor children M.O. and T.O. on August 16, 1998.3

On September 1, 1998 OWCP advised appellant that he would receive continuing 

compensation every 28 days in the amount of $3,022.79 for survivor benefits as a spouse and on 

behalf of daughters M.O. and T.O.

In a preliminary overpayment determination dated April 8, 2019, OWCP informed 

appellant that he had received an overpayment of compensation in the amount of $464,629.10 for 

the period August 7, 1998 through August 1, 2014 because it failed to offset his compensation 

payments by the portion of his Social Security Administration (SSA) survivors benefits that were 

attributable to the employee’s federal service. It determined that he was without fault in the 

creation of the overpayment because he relied on information given by OWCP as to the 

interpretation of a pertinent provision of FECA or its regulations. OWCP requested that appellant 

complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit 

supporting financial documentation. Additionally, it notified him that within 30 days of the date 

of the letter he could request a telephonic conference, a final decision based on the written 

evidence, or a prerecoupment hearing.

On May 7, 2019 appellant requested a prerecoupment hearing. He indicated that he 

disagreed that both the overpayment occurred and the amount of the overpayment. Appellant also 

requested a waiver because he was found to be without fault in the creation of the overpayment.

On August 29, 2019 an OWCP hearing representative conducted a prerecoupment hearing. 

By decision dated September 30, 2019, an OWCP hearing representative finalized OWCP’s 

preliminary determination that appellant had received an overpayment of compensation in the 

amount of $464,629.10 for the period August 7, 1998 through August 1, 2014 because a portion 

of his SSA survivors benefits were based on credits the employee earned in federal service, 

resulting in a prohibited dual benefit. It further found that he was without fault in the creation of 

the overpayment because he could not have reasonably known his FECA survivor benefits did not 

include a FERS offset. However, OWCP denied waiver of recovery of the overpayment because 

the evidence of record was insufficient to establish that recovery would defeat the purpose of 

FECA or would be against equity and good conscience. It required recovery of the overpayment 

by deducting $5,000.00 every 28 days from appellant’s continuing wage-loss compensation 

payments.

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

decision.

 

3 The Board notes that significant financial documentation of appellant’s alleged receipt of Federal Employees’

Compensation Act (FECA) benefits is not present in the record. 
3

FECA survivor’s benefits attributable to an employee’s federal service constitute a 

prohibited dual benefit if paid concurrently with SSA survivors benefits, based upon the 

employee’s federal service.4

The case record as transmitted to the Board is missing substantial portions of documents 

related to the employee’s federal service, most documents related to appellant’s alleged receipt of 

FECA survivor’s benefits prior to 2002, and documents related to appellant’s receipt of SSA 

survivors benefits. The Board is therefore unable to determine whether OWCP properly 

determined fact and amount of the overpayment. For example, the record does not document by

Standard Form (SF)-50 or other evidence that the employee was covered by a Federal Employees 

Retirement System (FERS) retirement plan. The Board is therefore unable to determine whether

appellant received a FECA death benefit, which was subject to the SSA FERS survivors offset. 

Also, while the evidence of record establishes that the employee had three minor daughters at the 

time of her death, the record indicates that appellant received FECA survivor’s benefits on behalf 

of himself, and two minor daughters. There is no documentation of record as to whether the SSA 

survivor’s benefits, which are the subject of the overpayment offset, were, however, paid on behalf 

of appellant and all three of the employee’s minor daughters.

Because the record as transmitted to the Board is incomplete and would not permit an 

informed adjudication of the case,5the Board is unable to properly consider and determine fact 

and amount of the overpayment. The case, therefore, is remanded to OWCP for reconstruction 

and proper assemblage of the record.6 After such further development as deemed necessary, 

OWCP shall issue a de novo decision on appellant’s alleged overpayment.

 

4 5 U.S.C. § 8116(d)(2) of FECA provides for limitations on the right to receive compensation and states in pertinent 

part: “(d) Notwithstanding the other provisions of this section, an individual receiving benefits for disability or death 

under this subchapter who is also receiving benefits under [S]ubchapter [3] of [C]hapter 84 of this title or benefits 

under [T]itle [2] of the [SSA] shall be entitled to all such benefits, except that –”...(2) in the case of benefits received 

on account of age or death under [T]itle [2] of the [SSA,] compensation payable under this subchapter based on the 

[f]ederal service of an employee shall be reduced by the amount of any such social security benefits payable that are 

attributable to [f]ederal service of that employee covered by [C]hapter 84 of this title.” See M.M., Docket No. 17-0560 

(issued August 23, 2017).

5 See D.H., Docket No. 17-0224 (issued August 16, 2018).

6

Id.
4

IT IS HEREBY ORDERED THAT the September 30, 2019 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: December 3, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board