United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.R., Appellant

and

U.S. POSTAL SERVICE, GENERAL MAIL 

FACILITY, San Juan, PR, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0804

Issued: October 8, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 5, 2018 appellant filed a timely appeal from January 3 and 24, 2018 merit 

decisions of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal 

Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s compensation, 

effective May 19, 2017, finding that he forfeited his entitlement to compensation pursuant to 

5 U.S.C. § 8148(a); (2) whether OWCP properly found that appellant received an overpayment of 

compensation in the amount of $11,376.07; and (3) whether OWCP properly found appellant at 

 

1 Appellant timely requested oral argument before the Board. By order dated November 20, 2018, the Board 

exercised its discretion and denied the request as the matter could be adequately addressed based on a review of the 

case record. Order Denying Request for Oral Argument, Docket No. 18-0804 (issued November 20, 2018).

2

5 U.S.C. § 8101 et seq.
2

fault in the creation of the overpayment, thereby precluding wavier of recovery of the 

overpayment.

FACTUAL HISTORY

On June 14, 2005 appellant, then a 44-year-old maintenance mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that on May 24, 2005 he injured his right ankle, right knee, 

right wrist, and low back when he fell on the floor while in the performance of duty. He stopped 

work on May 25, 2005. OWCP accepted the claim for knee effusion and sprains of the cervical 

and thoracic spine. It subsequently expanded acceptance of the claim to include aggravation of 

lumbar radiculopathy. OWCP paid appellant wage-loss compensation for total disability 

beginning July 10, 2005.

On April 17, 2017 a grand jury for the U.S. District Court for the District of Puerto Rico 

indicted appellant for making false written statements to OWCP under 18 U.S.C. § 1001 by 

concealing his employment on EN1032 forms, for theft of government property under 18 U.S.C. 

§§ 641, for embezzling and stealing money from the Social Security Administration (SSA), and 

for concealing or failing to disclose an event to the SSA. 

On May 19, 2017 a jury found appellant guilty on all counts. 

By decision dated May 27, 2017, OWCP found that appellant had forfeited his entitlement 

to compensation beginning May 19, 2017 as he was found guilty of knowingly making false 

statements to OWCP in violation of 18 U.S.C. § 1001. It determined that, as a result of his 

conviction, and in accordance with 5 U.S.C. § 8148(a) and 20 C.F.R. § 10.17, he was not entitled 

to receive further benefits under FECA under this or any other file number.

On June 7, 2017 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

OWCP continued to pay appellant wage-loss compensation for disability until 

July 22, 2017.

On August 8, 2017 OWCP notified appellant of its preliminary determination that he had 

received an overpayment of wage-loss compensation in the amount of $11,376.07 as it paid him 

compensation for the period May 19 through July 22, 2017 after it had terminated his 

compensation benefits. It calculated the overpayment by adding the net amount of compensation 

paid from May 19 through July 21, 2017. OWCP further advised appellant of its preliminary 

determination that he was at fault in the creation of the overpayment. It requested that he complete 

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

financial documentation. Additionally, OWCP notified appellant that, within 30 days of the date 

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

evidence, or a prerecoupment hearing. 

On September 1, 2017 appellant requested a telephone conference before OWCP on the 

issue of fault and possible waiver. He submitted a completed overpayment recovery questionnaire. 

No telephone conference was scheduled or took place regarding the issue of overpayment.
3

A telephonic hearing was held on November 7, 2017 regarding OWCP’s May 27, 2017 

decision terminating appellant’s compensation under 5 U.S.C. § 8148(a). Appellant asserted that 

he had notified the employing establishment that he wanted to resume work.

By decision dated January 3, 2018, OWCP’s hearing representative affirmed the May 25, 

2017 decision. He determined that OWCP had properly terminated appellant’s entitlement to 

compensation effective May 19, 2017, under section 8148(a), as a jury had found him guilty of 

making false written statements to OWCP.

By decision dated January 24, 2018, OWCP finalized its determination that appellant 

received an overpayment of compensation in the amount of $11,376.07 as he continued to receive 

compensation until July 22, 2017 after it had terminated his compensation benefits on 

May 19, 2017. It further found that he was at fault in the creation of the overpayment of 

compensation and thus not entitled to waiver of recovery of the overpayment. OWCP instructed 

appellant to forward a check for the entire amount of the overpayment as recovery.

LEGAL PRECEDENT -- ISSUE 1

Public Law No. 103-333, enacted on September 30, 1994, amended FECA by adding 5 

U.S.C. § 8148, which provides for the termination of benefits payable to beneficiaries who have 

been convicted of defrauding the program. Section 8148(a) specifically provides that an individua l 

convicted of a violation of 18 U.S.C. § 1920 or any other federal or state criminal statute relating 

to fraud in the application for or receipt of a benefit under FECA, shall forfeit, as of the date of 

such conviction, entitlement to any benefit to which such individual would otherwise be entitled 

under FECA for an injury occurring on or before the date of such conviction. Such forfeiture shall 

be in addition to any action the Secretary may take under section 81063(forfeiture) or section 

81294(recovery of overpayments) of FECA.5

Section 10.17 of OWCP’s implementing regulations provides that when a claimant pleads 

guilty to federal or state criminal charges of fraud in connection with receipt of Federal 

Government benefits, the claimant’s entitlement to further compensation benefits will terminate 

effective the date the guilty plea is accepted. Termination of entitlement under this section is not 

affected by any subsequent change in or recurrence of the beneficiary’s medical condition.6

OWCP’s procedures provide that in support of termination or suspension of compensation 

the record must contain copies of the indictment or information and the plea agreement, if any, or 

the document containing the guilty verdict. Further, this evidence must establish that the 

individual was convicted and the conviction is related to the claim for or receipt of compensation 

 

3

5 U.S.C. § 8106.

4

Id. at § 8129.

5

Id. at § 8148; see D.S., Docket No. 18-1173 (issued June 13, 2019).

6

20 C.F.R. § 10.17.
4

benefits under FECA.7 The termination is effective on the date of the verdict or on the date the 

guilty plea is accepted and guilt adjudicated.8 Because of the criminal basis for the termination, 

no pretermination notice is required before a final decision is issued.9

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly terminated appellant’s compensation, effective 

May 19, 2017, as he forfeited his entitlement to compensation pursuant to 5 U.S.C. § 8148(a).

On April 17, 2017 a grand jury for the U.S. District Court for the District of Puerto Rico 

indicted appellant on three counts of making false written statements to OWCP under 18 U.S.C. 

§ 1001 by concealing his employment on EN1032 forms. On May 19, 2017 a jury found him 

guilty on all three counts of making false statements under 18 U.S.C. § 1001 when he concealed 

his employment on EN1032 forms. Under section 8148(a) of FECA, a claimant who is convicted 

of fraud in obtaining compensation benefits under 18 U.S.C. § 1920 or any other federal or state 

criminal statute relating to fraud in the application for or receipt of a benefit under FECA is 

permanently barred from receiving compensation under FECA.10

The record contains a copy of the indictment and the jury verdict. The Board finds that the 

evidence establishes that appellant was convicted of fraud for making false statements to OWCP 

under 18 U.S.C. § 1001. OWCP procedures provide that the termination is effective on the date 

of the verdict.11 The Board thus finds that OWCP properly terminated appellant’s compensation 

benefits on May 19, 2017.12

On appeal appellant contends that he informed the employing establishment of his 

activities and that he wanted to resume work. As discussed, however, pursuant to 5 U.S.C. § 8148, 

he forfeited his entitlement to compensation based on his conviction under a federal criminal 

statute for making false statements in the application for or receipt of benefits under FECA.13

LEGAL PRECEDENT -- ISSUE 2

OWCP is required to follow certain procedures in overpayment cases. 20 C.F.R. § 10.431 

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.14 The written notification must 

 

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.17(c)(2) (February 2013).

8

Id. at Chapter 2.1400.17(d) (February 2013).

9

Id. at Chapter 2.1400.4(a)(6) (February 2013).

10 5 U.S.C. § 8148(a); 20 C.F.R. § 10.17; see R.M., Docket No. 17-0141 (issued March 28, 2018).

11 Supra note 8.

12 See D.S., Docket No. 18-1173 (issuedJune13, 2019).

13 See supra note 10.

14 20 C.F.R. § 10.431(a).
5

include a preliminary finding regarding whether the individual was at fault in the creation of the 

overpayment.15 Additionally, OWCP is obliged to advise the individual of his or her right to 

inspect and copy the government records relating to the overpayment.16 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. 17 

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.18

ANALYSIS -- ISSUE 2

The Board finds that the case is not in posture for decision regarding the issue of whether 

appellant received an overpayment of compensation in the amount of $11,376.07.

On August 8, 2017 OWCP notified appellant of its preliminary determination that he had 

received an $11,376.07 overpayment of compensation and its finding that he was at fault in the 

creation of the overpayment. It further advised him of the actions that he could take, including the 

option to request a telephone conference with OWCP within 30 days.

On September 1, 2017 appellant timely requested a telephone conference before OWCP 

and submitted a completed overpayment recovery questionnaire. OWCP did not, however, 

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.19

The case will be remanded to OWCP to provide appellant a telephone conference. After 

such further development as deemed necessary, it should issue a de novo decision regarding the 

overpayment issues.20

CONCLUSION

The Board finds that OWCP properly terminated appellant’s compensation, effective 

May 19, 2017, as he forfeited his entitlement to compensation pursuant to 5 U.S.C. § 8148(a). The 

Board further finds that the case is not in posture for decision regarding whether OWCP properly 

found that he received an overpayment of compensation in the amount of $11,376.07.

 

15 Id. at § 10.431(b).

16 Id. at § 10.431(c).

17 Id. at § 10.431(d).

18 Id. at § 10.432.

19 B.B., Docket No. 16-0495 (issued October 21, 2016).

20 In light of the Board’s disposition of the issue of fact and amount of overpayment, it is premature to address the 

issue of fault.
6

ORDER

IT IS HEREBY ORDERED THAT the January 3, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed and the January 24, 2018 decision is set aside. The 

case is remanded for further proceedings consistent with this decision of the Board.

Issued: October 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board