United States Department of Labor

Employees’ Compensation Appeals Board

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B.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Cincinnati, OH, Employer

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Docket No. 19-1686

Issued: March 30, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On August 6, 2019 appellant filed a timely appeal from a July 15, 2019 decision of the 

Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

docketed the appeal as No. 19-1686.

2

On August 15, 2007 appellant, then a 49-year-old letter carrier, filed a notice of 

occupational disease (Form CA-2) alleging that she injured her right shoulder due to factors of her 

federal employment including shelving stock boxes with her hands held above her head. She 

indicated that she first became aware of the condition and that it was causally related to her 

 

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 July 15, 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

employment on December 6, 2006. Appellant did not initially stop work. OWCP accepted the 

claim for right shoulder impingement syndrome, right rotator cuff tear, and right shoulder 

osteoarthritis. It paid appellant intermittent compensation on the supplemental rolls beginning 

June 6, 2007. Appellant received compensation on the periodic rolls as of August 13, 2015.

On June 26, 2018 OWCP issued a preliminary determination that appellant was overpaid 

compensation benefits in the amount of $15,970.58 for the period February 1, 2015 to March 31, 

2018, for which she was not at fault. It explained that the overpayment was a result of her receipt 

of dual benefits from OWCP and Social Security Administration (SSA) age-related retirement

benefits attributable to federal service, without offset, which was a prohibited dual benefit. A 

breakdown and calculation of how the overpayment was calculated was also attached. OWCP 

provided appellant with an overpayment recovery questionnaire (Form OWCP-20) and informed 

her of her appeal rights. 

On July 6, 2018 appellant requested a prerecoupment hearing. By decision dated 

October 4, 2018, an OWCP hearing representative determined that appellant’s case was not in 

posture for a hearing as OWCP calculated that appellant was overpaid compensation benefits in 

the amount of $15,970.58 for the period February 1, 2015 to March 31, 2018, however, she did 

not start receiving compensation benefits until April 25, 2015. 

On October 9, 2018 OWCP issued a preliminary determination that appellant was overpaid 

compensation benefits in the amount of $14,844.06 for the period April 25, 2015 to March 31, 

2018, for which she was not at fault. It explained that the overpayment was a result of her receipt 

of dual benefits from OWCP and SSA age-related retirement benefits attributable to federal 

service, without offset, which was a prohibited dual benefit. A breakdown and calculation of the 

overpayment was attached. OWCP provided appellant with an overpayment recovery 

questionnaire (Form OWCP-20) and informed her of her appeal rights.

On October 24, 2018 appellant requested a prerecoupment hearing. By decision dated 

January 23, 2019, an OWCP hearing representative found that appellant’s case was not in posture 

for a hearing. The representative determined that the record contained two different sets of figures 

from SSA regarding the FERS offset, and that it was unclear why OWCP relied on the figures 

from March 26, 2018. The representative also determined that while OWCP calculated the 

overpayment of compensation benefits to appellant for the period April 25, 2015 to March 31, 

2018, appellant did not receive any wage-loss compensation from May 10 to July 2, 2015. 

Additionally, the representative found that appellant was put on notice that her compensation 

would be reduced by her SSA benefits by letters from OWCP dated July 11, 2014 and 

August 25, 2015.

On May 22, 2019 OWCP issued a preliminary determination that appellant was overpaid 

compensation benefits in the amount of $13,946.98 for the period April 25 to May 9, 2015 and the 

period July 3, 2015 to March 31, 2018. It explained that the overpayment was a result of her 

receipt of dual benefits from OWCP and SSA age-related retirement benefits attributable to federal 

service, without offset, which was a prohibited dual benefit. OWCP advised appellant that she 
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was at fault3in the creation of the overpayment because she accepted a payment that she knew or 

reasonably should have known to be incorrect. A breakdown and calculation of the overpayment 

was also attached. OWCP provided appellant with an overpayment recovery questionnaire (Form 

OWCP-20) and informed her of her appeal rights.

On June 17, 2019 OWCP received appellant’s overpayment recovery questionnaire (Form 

OWCP-20), and her request to contest the overpayment. Appellant submitted an SSA-1099 form 

for 2015, a 2016 SSA form 1099, a March 12, 2015 social security benefits statement, a July 7, 

2016 benefits statement which reflected that appellant did not receive any SSA benefits from 

January through June 2016, and May 5 and 28, 2019 documents stating that appellant’s Form 1099 

social security benefits statement was unable to be processed due to no benefits paid or repaid 

during 2017. 

By decision dated July 15, 2019, OWCP found an overpayment of compensation in the 

amount $13,946.98 for the period April 25 through May 9, 2015 and the period July 3, 2015 

through March 31, 2018, as OWCP had failed to offset appellant’s compensation payments for the 

portion of her age-related SSA benefits that were attributable to her federal service. It further 

determined that appellant was at fault in the creation of the overpayment and was therefore not 

entitled to waiver of recovery of the overpayment. OWCP determined that it would recover the 

overpayment by deducting $805.00 every 28 days from appellant’s continuing compensation 

payments beginning July 21, 2019. 

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

decision and must be remanded to OWCP. In the case of William A. Couch4the 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.

In its July 15, 2019 decision, OWCP listed evidence received since the issuance of its 

May 22, 2019 preliminary overpayment determination, but OWCP did not reference appellant’s 

2016 form 1099, the July 2, 2016 social security benefits statement which related that appellant 

had not received benefits from January 2016, or the document indicating that appellant received 

no social security benefits in 2017. These documents constitute new evidence not previously 

considered by OWCP.

As the Board’s decisions are final as to the subject matter appealed, it is crucial that all 

evidence relevant to the subject matter of the claim properly submitted to OWCP be reviewed and 

addressed.5 For this reason, the case will be remanded to OWCP to enable it to properly consider 

all the evidence submitted at the time of the July 15, 2019 decision. Should the overpayment 

amount increase, OWCP shall issue a new preliminary overpayment decision affording appellant 

appeal rights including a prerecoupment hearing and the opportunity to provide an updated Form 

 

3 See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.300.4, Initial Determinations in an Overpayment, Fault Determinations (September 2018)

4 41 ECAB 548, 553 (1990); see also L.T., Docket No. 19-0145 (issued June 3, 2019).

5 R.M., Docket No. 19-1406 (issued February 11, 2020); M.J, Docket No. 18-0605 (issued April 12, 2019).
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OWCP-20. Following such further development as OWCP deems necessary, it shall issue a 

de novo decision on the claim. Accordingly,

IT IS HEREBY ORDERED THAT the July 15, 2019 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this order of the Board.

Issued: March 30, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board