United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FLETC/ICE ACADEMY, Glynco, GA, Employer

__________________________________________

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Docket No. 19-1582

Issued: May 26, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On July 9, 2019 appellant filed a timely appeal from an April 17, 2019 merit decision and 

a May 31, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1 

The Clerk of the Appellate Boards docketed the appeal as No. 19-1582.

On April 4, 2012 appellant, then a 30-year-old attorney instructor, filed a traumatic injury 

claim (Form CA-1) alleging that on March 28, 2012, she sustained injuries to her right lower 

extremity while running on duty fitness time when she fell in a gap on the sidewalk while in the 

performance of duty. OWCP accepted appellant’s traumatic injury claim for right ankle sprain

and right foot and joint derangement. It subsequently expanded acceptance of the claim to include 

right foot reflex sympathetic dystrophy, other synovitis and tenosynovitis right ankle, and other 

acquired deformities of the right foot.

 

1 The Board notes that, following the May 21, 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 initially paid appellant wage-loss compensation for temporary total disability on 

the supplemental rolls. It placed her on the periodic rolls beginning January 13, 2013. OWCP 

returned appellant to the supplemental rolls as of February 7, 2016.

In a letter to appellant dated February 28, 2019, OWCP advised that appellant returned to 

work as an attorney instructor on February 25, 2019 for 40 hours per week. It explained that a 

final 28-day compensation payment that partially covered the period following her return to work 

would be issued, and would result in an excess of compensation, or an overpayment.

On March 14, 2019 OWCP notified appellant of its preliminary determination that she had 

received an overpayment of compensation in the amount of $1,202.00 for the period February 25 

through March 2, 2019 because she continued to receive wage-loss compensation for temporary 

total disability following her return to full-time, full-duty work. It found that appellant was without 

fault in the creation of the overpayment. OWCP informed her that she had 30 days to request a 

telephone conference, a final decision based on the written evidence, or a prerecoupment hearing 

on the issues of fault and a possible waiver of recovery of the overpayment. It provided appellant 

with an overpayment recovery questionnaire (Form OWCP-20) for her completion, along with

appeal rights.

On April 15, 2019 OWCP received appellant’s completed Form OWCP-20 with an 

explanation and supporting financial documentation. 

By decision dated April 17, 2019, OWCP finalized its preliminary determination that 

appellant received an overpayment of compensation in the amount of $1,202.00 for the period 

February 25 through March 2, 2019, based on her receipt of compensation for disability after her 

return to full-time work. It further found that she was without fault in the creation of the 

overpayment and denied waiver of recovery of the overpayment, noting that “as of this date, no 

response has been received to the preliminary overpayment determination.” OWCP requested that 

appellant repay the amount of the overpayment in full.

On May 19, 2019 appellant requested a prerecoupment hearing and possible waiver of 

recovery of the overpayment.

By decision dated May 31, 2019, OWCP’s Branch of Hearings and Review denied 

appellant’s May 19, 2019 request for a hearing, finding that it had not received a request for a 

hearing on the preliminary overpayment determination, and that the final overpayment 

determination was not subject to a hearing pursuant to 5 U.S.C. § 8124(b).

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

decision. In the case of William A. Couch,

2

the Board held that, when adjudicating a claim, OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued.

 

2 41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).
3

In its April 17, 2019 decision, OWCP noted that, “as of this date, no response has been 

received to the preliminary overpayment determination.” However, appellant submitted a 

completed Form OWCP-20 with explanation and submitted financial information, which was 

received on April 15, 2019, and OWCP failed to follow its procedures by properly discussing all 

of the relevant evidence of record.3

It is crucial that OWCP address all relevant evidence received prior to the issuance of its 

final decision, as the Board’s decisions are final with regard to the subject matter appealed.4 The 

Board finds that this case is not in posture for decision, as OWCP did not address the above-noted 

evidence in the April 17, 2019 decision.5 On remand OWCP shall review all evidence of record 

and, following any further development as it deems necessary, it shall issue a de novo decision.6

 

3

“All evidence submitted should be reviewed and discussed in the decision. Evidence received following 

development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be 

referenced by author and date.” Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter 

2.1401.5(b)(2) (November 2012).

4 See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also 

William A. Couch, supra note 2.

5 See V.C., Docket No. 16-0694 (issued August 19, 2016).

6

In light of the Board’s disposition with regard to the merits of the overpayment, the nonmerit issue is rendered 

moot.
4

IT IS HEREBY ORDERED THAT the April 17 and May 31, 2019 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP for 

further action consistent with this order of the Board.

Issued: May 26, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board