United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.G., Appellant

and

DEPARTMENT OF THE ARMY, BROOKE

ARMY MEDICAL CENTER, 

Fort Sam Houston, TX, Employer

__________________________________________

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Docket No. 19-0176

Issued: February 23, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 31, 2018 appellant filed a timely appeal from a May 31, 2018 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days 

has elapsed from OWCP’s last merit decision, dated April 17, 2018, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction to review the merits of this case.

3

 

1 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated September 3, 

2019, 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. 19-0176 (issued

September 3, 2019).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the May 31, 2018 decision and on appeal, 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

ISSUE

The issue is whether OWCP properly denied appellant’s request for a prerecoupment 

hearing as untimely filed.

FACTUAL HISTORY

On February 18, 2003 appellant, then a 52-year-old general facilities officer, filed a 

traumatic injury claim (Form CA-1) alleging that on that date she was sitting in an office chair that 

broke, causing her to fall on the floor, while in the performance of duty.4 On April 2, 2003 OWCP 

accepted the claim for contusion of both hips and thighs. It subsequently expanded acceptance of 

the claim to include cervical and lumbar sprain, thoracic or lumbosacral neuritis or radiculitis, and 

incisional hernia. OWCP paid appellant wage-loss compensation on the supplemental rolls as of 

December 1, 2003 and on the periodic rolls as of June 10, 2007. 

On March 14, 2018 OWCP advised appellant of its preliminary determination that she had 

received an overpayment of compensation in the amount of $44,039.05 because her wage-loss 

compensation payments for the period December 1, 2012 through February 3, 2018 had not been 

reduced to offset her Social Security Administration (SSA) age-related retirement benefits that 

were attributable to federal service. It determined that appellant was without fault in the creation 

of the overpayment because she could not have reasonably known that an improper payment had 

occurred. OWCP requested that appellant submit a completed overpayment recovery 

questionnaire (Form OWCP-20) to determine a reasonable repayment schedule, and advised her 

that she could request a waiver of the repayment. It further requested that she provide supporting 

financial documentation, including copies of income tax returns, bank account statements, bills, 

pay slips, and any other records to support income and expenses. Additionally, OWCP notified 

appellant 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. No response was 

received.

By decision dated April 17, 2018, OWCP finalized its preliminary determination that 

appellant received an overpayment of compensation in the amount of $44,039.05 for the period 

December 1, 2012 through February 3, 2018 because she concurrently received SSA age-related 

retirement benefits and FECA wage-loss compensation benefits without an appropriate offset. It 

also found that she was without fault in the creation of the overpayment, but denied waiver of 

recovery of the overpayment. OWCP noted that no response had been received to the preliminary 

overpayment questionnaire and that appellant had not requested waiver of recovery of the 

overpayment. It required recovery of the overpayment by deducting $358.00 every 28 days from 

appellant’s continuing compensation payments.

On April 24, 2018 OWCP received an overpayment action request form, dated April 17, 

2018 and postmarked April 18, 2018, in which appellant requested a prerecoupment hearing. 

 

4 The record also contains a Standard Form-50 indicating under retirement plan Federal Insurance Contributions 

Act and Civil Service Retirement System (Partial), rather than the Federal Employees Retirement System. However, 

as noted previously, the Board does not have jurisdiction to review the merits of the final overpayment determination.
3

Appellant requested waiver of recovery of the overpayment and asserted that she was being treated 

unfairly and would suffer severe financial and emotional hardship in attempting to repay the debt. 

By decision dated May 31, 2018, OWCP denied appellant’s request for a prerecoupment 

hearing as untimely filed. It found that, because her request was not filed within 30 days of the 

March 14, 2018 preliminary overpayment determination, she was not entitled to a prerecoupment 

hearing as a matter of right.

LEGAL PRECEDENT

OWCP’s regulations provide that a claimant may request a prerecoupment hearing with 

respect to an overpayment.5 The date of the request is determined by the postmark or other 

carrier’s date marking.6 Failure to request the prerecoupment hearing within 30 days constitutes a 

waiver of the right to a hearing.7 The only right to a review of a final overpayment decision is 

with the Board.8 The hearing provisions of section 8124(b) of FECA do not apply to final 

overpayment decisions.9

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for a prerecoupment 

hearing as untimely filed.

OWCP issued a preliminary overpayment determination on March 14, 2018. It advised

appellant that she had 30 days from that date to request a prerecoupment hearing. The record 

indicates that OWCP properly mailed its preliminary determination to appellant’s last known 

address of record.

Appellant did not request a prerecoupment hearing within 30 days of March 14, 2018. 

Consequently, by decision dated April 17, 2018, OWCP properly finalized its preliminary 

overpayment determination.

On April 24, 2018 OWCP received an overpayment action request form, dated April 17, 

2018 and postmarked April 18, 2018, in which appellant requested a prerecoupment hearing. The 

timeliness of a request for a prerecoupment hearing is determined by the postmark date or other 

carrier’s marking showing when the request was sent to OWCP.10 As appellant’s request for a 

prerecoupment hearing was postmarked on April 18, 2018, more than 30 days after the March 14, 

 

5 20 C.F.R. § 10.432; see S.O., Docket No. 20-0753 (issued October 28, 2020); E.M., Docket No. 19-0857 (issued 

December 31, 2019); D.H., Docket No. 19-0384 (issued August 12, 2019).

6

Id. at §§ 10.439, 10.616(a); see A.B., Docket No. 18-1172 (issued January 15, 2019); see also B.W., Docket No. 

18-1004 (issued October 24, 2018); C.R., Docket No. 15-0525 (issued July 20, 2015).

7

Id.

8 20 C.F.R. § 10.440(b).

9 5 U.S.C. § 8124(b); see G.L., Docket No. 19-0297 (issued October 23, 2019).

10 B.W, supra note 6. 
4

2018 preliminary overpayment determination, it was untimely filed. Therefore, OWCP properly 

denied appellant’s request for a prerecoupment hearing as untimely filed.11

The Board further finds that, as appellant’s request form was mailed to OWCP’s Branch 

of Hearings and Review, it was properly treated as a request for a hearing. As noted, the hearing 

provisions of section 8124(b) are not applicable to final overpayment decisions. OWCP’s 

regulations provide that when a final overpayment decision is issued, there is no right to a hearing 

or a review of the written record, and OWCP does not have discretion to grant such a request.12 

The only right to appeal is with the Board.13 As appellant’s April 18, 2018 request for a 

prerecoupment hearing was made after the final overpayment determination, the Board finds that 

OWCP properly denied appellant’s request for a hearing after issuance of the final overpayment 

determination.

14

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for a prerecoupment 

hearing as untimely filed.

 

11 See B.W., supra note 6; E.V., Docket No. 17-1328 (issued December 11, 2017); see also R.U., Docket No. 

16-0027 (issued March 24, 2017).

12 Supra note 7.

13 5 U.S.C. § 8124(b); see S.O., supra note 5; G.L., supra note 9.

14 See E.M., supra note 5; D.H., supra note 5.
5

ORDER

IT IS HEREBY ORDERED THAT the May 31, 2018 nonmerit decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 23, 2021

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