United States Department of Labor

Employees’ Compensation Appeals Board

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D.C., widow of J.C., Appellant

and

DEPARTMENT OF JUSTICE, DRUG 

ENFORCEMENT AGENCY, National City, CA, 

Employer

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Docket No. 19-0293

Issued: April 21, 2020

Appearances: Case Submitted on the Record

Hilary T. Cuevas-Balanon, for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On November 23, 2018 appellant, through her representative, filed a timely appeal from a

November 5, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

The Clerk of the Appellate Boards docketed the appeal as No. 19-0293.

 

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 On July 23, 1985, in a claim adjudicated under File No. xxxxxx727, OWCP accepted that the employee sustained 

adjustment disorder with mixed emotional features. In a claim adjudicated by OWCP under File No. xxxxxx728, it

accepted post-traumatic stress disorder without agoraphobia and panic disorder. Under the latter claim, OWCP paid 

appellant paid monetary compensation, commencing May 20, 1991, and placed the employee on the periodic 

compensation rolls effective November 17, 1991.
2

The employee died on June 22, 2018.3 By letter dated July 20, 2018, OWCP informed the 

Office of Personnel Management (OPM) that, because the employee had died, his compensation 

had been terminated and his Federal Employees Health Benefits (FEHB) enrollment was being 

transferred. By letter dated July 24, 2018, addressed to the estate of the employee, care of 

appellant, OWCP informed her that she should contact OPM regarding the employee’s life 

insurance benefits. On July 24 and August 9, 2018 OPM notified OWCP of the terms of the 

employee’s life insurance and attached election forms, signed by him on January 30, 1992 and 

January 9, 2002, and information regarding life insurance premiums. 

On September 17, 2018 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $106,985.69 had been created for the period April 4, 1992 to 

June 22, 2018 due to nondeduction of basic and postretirement basic life insurance, and an 

incorrect deduction of optional life insurance from the employee’s compensation benefits.4 It

found the employee without fault and advised appellant of the steps she could take if she disagreed 

with the preliminary determination. OWCP provided her an overpayment action request form and 

overpayment recovery questionnaire (Form OWCP-20) and afforded her 30 days to respond. 

Appellant’s representative completed an overpayment action request, received by OWCP 

on October 12, 2018. The box requesting a telephone conference was checked.5

By decision dated November 5, 2018, OWCP finalized the overpayment determination. It 

found the employee without fault, but denied waiver of recovery, noting that the assets of the 

employee’s estate totaled $418,660.00 which exceeded the resource base and, thus, recovery 

would not defeat the purpose of the Federal Employees’ Compensation Act6(FECA) or be against 

equity and good conscience. Overpayment recovery instructions indicated that the full amount of 

the overpayment was due within 30 days. OWCP noted that, although appellant requested a 

telephone conference, it was not conducted because there was no issue regarding fault. 

Pursuant to Califano v. Yamasaki, 422 U.S. 682 (1979), OWCP has established procedures 

for handling overpayment cases. The Director determined that the United States Supreme Court’s 

holding is applicable to the recovery of overpayments under FECA and requires an opportunity 

for a prerecoupment hearing.7 Section 10.431(a) of OWCP regulations 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. The written notification must include a preliminary 

finding regarding whether the individual was at fault in the creation of the overpayment. 

Additionally, OWCP is obliged to advise the individual of his or her right to inspect and copy the 

government records relating to the overpayment. Lastly, the preliminary notice must inform the 

 

3 The death certificate listed the immediate cause of death as acute respiratory failure with acute interstitial 

pneumonitis.

4 The preliminary determination was addressed to the employee’s estate and sent to appellant’s address of record. 

A copy was sent to her representative at the same address. 

5 A Form OWCP-20 and financial information were attached. 

6

5 U.S.C. § 8101 et seq. 

7 F.W., Docket No. 14-0504 (issued June 12, 2014); A.G., 58 ECAB 625 (2007).
3

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. 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.8

OWCP issued new procedures regarding final overpayment determinations in 

September 2018. Section 6.400.3.d of these procedures provides that OWCP’s claims examiner 

has the sole discretion to conduct a conference following a preliminary overpayment 

determination.9 

The preliminary overpayment determination issued on September 17, 2018 informed 

appellant of the actions she could take, including that she could request a telephone conference. It 

did not inform her that the decision to hold a telephone conference would be at the discretion of 

an OWCP claims examiner whereas, if she requested a prerecoupment hearing, it would be held 

as a matter of right. 

On appeal appellant’s representative notes that a telephone conference had been requested 

and not held. The Board finds that, under the facts presented, appellant was not provided sufficient 

information to make an informed decision as to which action she could take. She, therefore, was 

not afforded the required opportunity to provide testimonial evidence regarding the alleged 

overpayment.10

Accordingly, the November 5, 2018 decision will be set aside and the case will be 

remanded to OWCP to clearly inform appellant of her rights following a preliminary overpayment 

determination.11 Following this and such further development as deemed necessary, OWCP shall 

issue a de novo decision.12

 

8

20 C.F.R. § 10.431(a).

9 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 

6.400.3.d (September 2018).

10 See J.L., Docket No. 18-1028 (issued June 20, 2019).

11 Id. The Board notes that the overpayment action request provided appellant also does not fully explain the 

ramifications of selections provided and also contains an option for a “teleconference” under the request for a 

prerecoupment hearing option.

12 Section 6-500.15 describes procedures to be followed for recovery of an existing debt from a deceased debtor’s 

estate. Federal (FECA) Procedure Manual, supra note 9at Chapter 6.500.16.
4

IT IS HEREBY ORDERED THAT the November 5, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings 

consistent with this order of the Board.

Issued: April 21, 2020

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