United States Department of Labor

Employees’ Compensation Appeals Board

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S.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, CHICAGO MIDWAY 

AIRPORT, Chicago, IL, Employer

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Docket No. 21-0660

Issued: October 15, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REVERSING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On March 13, 2021 appellant filed a timely appeal from a September 16, 2020 merit 

decision of the Office of Workers’Compensation Programs (OWCP).1 The Clerk of the Appellate 

Boards assigned Docket No. 21-0660.

On September 26, 2019 OWCP advised appellant of its preliminary overpayment 

determination that he had received a $6,038.06 overpayment of compensation for the period 

June 1, 2014 through August 17, 2019 because he received wage-loss compensation under the 

Federal Employees’ Compensation Act2(FECA) and age-related retirement benefits from the 

Social Security Administration (SSA) without an appropriate offset for the portion of the SSA 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days September 16, 2020, the date of OWCP’s last decision, was 

March 15, 2021. Because using March 18, 2021, the date the appeal was received by the Clerk of the Appellate 

Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. Th e date of 

the U.S. Postal Service postmark is March 13, 2021, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2

5 U.S.C. § 8101 et seq.
2

retirement benefits attributable to his federal service. It also found that he was without fault in the 

creation of the overpayment. 

On October 26, 2019 appellant requested a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review. He asserted that the information provided by SSA 

regarding the amount of his benefits contained discrepancies. Appellant advised that he was not 

seeking waiver due to financial hardship.

Following a preliminary review, by decision dated January 30, 2020, OWCP’s hearing

representative set aside the September 26, 2019 preliminary overpayment determination. The 

hearing representative noted that, on August 18, 2014, SSA had provided a Federal Employees 

Retirement System (FERS)/SSA dual benefits calculation form setting forth appellant’s SSA agerelated retirement benefits with and without a FERS offset effective June 2014. On July 31, 2019

SSA had provided another FERS/SSA dual benefits calculation form that contained different rates 

for the period beginning June 2014. The hearing representative determined that OWCP had failed 

to resolve the discrepancies between the figures provided by SSA on the two forms prior to 

reaching its overpayment determination. Consequently, the hearing representative found that 

OWCP had not met its burden of proof to establish the declared overpayment. The hearing 

representative instructed OWCP, on remand, to obtain clarifying information from SSA, and to 

issue a de novo preliminary overpayment determination setting forth the period and amount of 

overpayment. 

By decision dated September 16, 2020, OWCP found that appellant had received an 

overpayment of wage-loss compensation in the amount of $6,038.06 for the period June 1, 2014 

through August 17, 2019 because it had failed to offset his compensation payments by the portion 

of his SSA age-related retirement benefits that were attributable to his federal service. It 

determined that he was without fault in the creation of the overpayment but denied waiver of 

recovery, noting that he had not requested waiver of recovery of the overpayment. OWCP required 

recovery of the overpayment by deducting $200.00 from appellant’s continuing compensation 

benefits every 28 days.

The Board finds that the case is not in posture for decision as OWCP improperly issued the 

September 16, 2020 final overpayment decision.

OWCP’s regulations provide that, before seeking to recover an overpayment or adjust 

benefits, it will advise the individual in writing that the overpayment exists and the amount of 

overpayment.3 The written notification must include a preliminary finding regarding whether the 

individual was at fault in the creation of the overpayment.4 The preliminary notice must also 

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.5 The recipient of the alleged 

3

20 C.F.R. § 10.431(a). See also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial 

Overpayment Actions, Chapter 6.300.5 (September 2018).

4

Id. at § 10.431(b).

5

Id. at § 10.431(d).
3

overpayment may present evidence in response to OWCP’s preliminary notice, either in writing 

or at a prerecoupment hearing requested within 30 days.6

The preliminary notice of findings is essential in overpayment cases because OWCP 

regulations limit further review of a final decision concerning overpayment to the Board. A 

claimant is prohibited from requesting a hearing, or reconsideration, following a final overpayment 

decision.7 The claimant is, therefore, precluded from introducing new evidence to rebut findings 

made in a final overpayment decision.

The Board notes that OWCP routinely issues a new preliminary determination after an 

OWCP hearing representative reviews a preliminary overpayment decision and remands the case 

to OWCP for further findings.8 In this case, OWCP’s hearing representative specifically instructed 

OWCP to issue a new preliminary overpayment determination after obtaining clarifying 

information from SSA. OWCP, however, failed to issue a new preliminary determination 

notifying appellant of its new findings, informing him of his right to challenge the overpayment,

and providing him with the opportunity to submit new information regarding waiver of recovery 

of the overpayment.9

As OWCP has not afforded appellant the procedural rights provided under its regulations, 

the Board finds that it improperly issued its final overpayment decision.10 Consequently, the 

September 16, 2020 decision is hereby reversed. Accordingly,

6

Id. at § 10.432.

7

See 20 C.F.R. § 10.440(b).

8

See K.G., Docket No. 17-0517 (issued September 8, 2017); L.V., Docket No. 15-1856 (issued July19, 2016).

9 K.G., id.

10 L.V., supra note 8; K.G., Docket No. 08-2135 (issued April16, 2009).
4

IT IS HEREBY ORDERED THAT the September 16, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: October 15, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board