United States Department of Labor

Employees’ Compensation Appeals Board

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A.L., Appellant

and

SMITHSONIAN INSTITUTION, 

Washington, DC, Employer

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Docket No. 21-0099

Issued: September 20, 2021

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

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 29, 2020 appellant, through counsel, filed a timely appeal from a merit decision 

of the Office of Workers’ Compensation Programs (OWCP) dated October 1, 2020. 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 determined that appellant received an 

overpayment of compensation in the amount of $3,146.57, for which she was without fault, as she 

 

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

5 U.S.C. § 8101 et seq.
2

concurrently received Social Security Administration (SSA) age-related retirement benefits and 

FECA wage-loss compensation for the period January 1, 2012 through October 12, 2019, without 

an appropriate offset; and (2) whether OWCP properly denyie waiver of recovery of the 

overpayment.

FACTUAL HISTORY

On April 16, 2010 appellant, then a 61-year-old security guard, filed a traumatic injury 

claim (Form CA-1) alleging that on April 13, 2010 she sustained injuries to her right shoulder and 

upper back when she was involved in a physical altercation while in the performance of duty. Her

retirement coverage was listed as Federal Employees Retirement System (FERS). 

On June 14, 2010 OWCP accepted the claim for right shoulder and upper arm contusion, 

rib, and neck sprain. On December 15, 2010 it expanded acceptance of the claim to include 

adjustment disorder, with depressed mood, and sprain of the right shoulder, upper arm, and 

acromioclavicular joint. OWCP paid appellant wage-loss compensation on the supplemental rolls 

as of May 29, 2010 and on the periodic rolls beginning July 3, 2011. 

On July 13, 2019 OWCP forwarded a FER/SSA dual benefits calculation form to SSA. It

received the completed form on July 18, 2019. OWCP noted that appellant had several periods 

during which she received SSA disability benefits and converted back to retirement benefits, only 

to convert back to disability and then back to retirement at her full retirement age. The SSA form 

showed benefit rates with and without a FERS offset. Beginning January 2012, the SSA rate with 

FERS was $859.20 and without FERS was $826.40, beginning December 2012, the SSA rate with 

FERS was $873.80 and without FERS was $840.40, beginning February 2013, the SSA rate with 

FERS was $873.80 and without FERS was $840.40, beginning September 2013, the SSA rate with 

FERS was $907.50 and without FERS was $826.10, beginning December 2013, the SSA rate with 

FERS was $921.10 and without FERS was $838.50, beginning February 2014, the SSA rate with 

FERS was $921.10 and without FERS was $838.50, beginning March 2015, the SSA rate with 

FERS was $1,139.30 and without FERS was $1,095.80, beginning December 2015, the SSA rate 

with FERS was $1,139.30 and without FERS was $1,095.80, beginning December 2016, the SSA 

rate with FERS was $1,142.70 and without FERS was $1,099.00, beginning December 2017, the 

SSA rate with FERS was $1,165.50 and without FERS was $1,120.90, and beginning 

December 2018, the SSA rate with FERS was $1,198.10 and without FERS was $1,152.20. 

In a worksheet dated December 12, 2019, OWCP calculated that appellant had received an 

overpayment of $3,221.08 during the period January 1, 2012 through December 7, 2019. It found

that during the period January 1 through November 30, 2012 the amount of the overpayment was 

$364.45; from December 1, 2012 through February 28, 2013, $97.91; from September 1, 2013 

through November 30, 2013, $105.00; from December 1, 2013 through February 28, 2014,

$100.88; from March 1 through November 30, 2015, $398.90; from December 1, 2015 through

November 30, 2016, $530.90; from December 1, 2016 through November 30, 2017, $517.42; from 

December 1, 2017 through November 30, 2018, $541.48; and from December 1, 2018 through

December 7, 2019, $564.13. 

On December 19, 2019 OWCP issued a preliminary overpayment determination that 

appellant was overpaid FECA benefits for the period January 1, 2012 through December 7, 2019, 
3

in the amount of $3,221.08, because she received SSA benefits as part of an annuity under FERS, 

concurrently with disability/wage loss compensation. It found that she was without fault in the 

creation of the overpayment. OWCP provided an overpayment action request form and an 

overpayment recovery questionnaire (Form OWCP-20) for appellant’s completion. It informed 

her of the appeal actions she could take and allotted 30 days for response.

On January 13, 2020 appellant requested a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review. 

Following a preliminary review, by decision dated April 2, 2020, OWCP’s hearing 

representative found that the case was not in posture for decision. The hearing representative 

found that it was not clearly documented how the SSA determined the periods of SSA disability 

and SSA retirement and how they arrived at their calculations. OWCP’s hearing representative 

set aside the preliminary overpayment determination of December 19, 2019, as additional evidence 

was necessary from the SSA. The hearing representative noted that, upon return of the case file, 

OWCP should request evidence from SSA to document the periods of age-related benefits 

provided to appellant, how SSA calculated the age-related benefits, and the basis of the 

overpayment calculation. OWCP’s hearing representative noted that, upon completion of the 

development of the evidence, OWCP should issue a de novo decision.

On October 1, 2020 OWCP finalized the December 19, 2019 preliminary overpayment

determination. It found that, based upon the revised calculations from SSA regarding the periods 

of SSA disability and SSA age-related retirement benefits, the amount of the overpayment was 

$3,146.57. OWCP found that during the period January 1 through November 30, 2012 the amount 

of the overpayment was $364.45; from December 1, 2012 through February 28, 2013, $97.91;

from September 1 through November 30, 2013, $105.00; from December 1, 2013 through

February 28, 2014, $100.88; from March 1 through November 30, 2015, $398.90; from 

December 1, 2015 through November 30, 2016, $530.90; from December 1, 2016 through

November 30, 2017, $517.42; from December 1, 2017 through November 30, 2018, $541.48; and 

from December 1, 2018 through October 12, 2019, $489.63. It determined that appellant was 

without fault in the creation of the overpayment. OWCP further found that the circumstances of 

her case did not warrant waiver of recovery of the overpayment as she had not completed the Form 

OWCP-20 or submitted any financial documentation. It declared that the sum of $467.37 would 

be withheld from appellant’s continuing compensation payments. 

LEGAL PRECEDENT -- ISSUE 1

FECA provides that the United States shall pay compensation for the disability or death of 

an employee resulting from personal injury sustained while in the performance of his or her duty. 3 

When an overpayment has been made to an individual because of an error of fact or law, 

adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing 

later payments to which the individual is entitled.4

 

3

Id. at § 8102(a).

4

Id. at § 8129(a).
4

Section 10.431 of the implementing regulations provides that, before seeking to recover an 

overpayment or adjust benefits, OWCP will advise the individua l in writing that the overpayment 

exists and the amount of the overpayment.5 The written notification must also include a 

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

overpayment.6 Additionally, OWCP is obliged to advise the individual of his or her right to inspect 

and copy the government records relating to the overpayment.7 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.8 The recipient of the alleged 

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

at a prerecoupment hearing.9 The evidence must be presented or the hearing requested within 30 

days of the date of the written notice of overpayment.10 Failure to request the hearing within this 

30-day time period shall constitute waiver of that right.11

ANALYSIS

The Board finds that OWCP improperly issued its October 1, 2020 overpayment decision.

On December 19, 2019 OWCP issue a preliminary determination finding that appellant 

had received an overpayment of compensation in the amount of $3,221.08 for the period January 1, 

2012 through December 7, 2019. On January 13, 2020 appellant requested a prerecoupment 

hearing and disagreed with the preliminary overpayment determination. On April 2, 2020 an 

OWCP hearing representative explained that a preliminary review had been completed and it was 

determined that the case was not in posture for decision as the amount and period of the 

overpayment had not been fully explained. The hearing representative set aside the December 19,

2019 preliminary overpayment determination and returned the case for further development to be 

followed by a de novo decision.

OWCP further developed the claim and by decision dated October 1, 2020, issued a new, 

final overpayment decision, finding that appellant had received an overpayment of compensation 

in the amount of $3,146.57 for the period January 1, 2012 through October 12, 2019, that she was 

without fault in the creation of the overpayment, and that she was not entitled to waiver of 

recovery. It noted that the sum of $467.37 would be withheld from her continuing compensation 

payments.

 

5

20 C.F.R. § 10.431(a).

6

Id. at § 10.431(b).

7

Id. at § 10.431(c).

8

Id. at § 10.431(d).

9

Id. at § 10.432.

10 Id.

11 Id.
5

The Board finds that OWCP denied appellant due process in issuing the October 1, 2020 

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.12 In this case, OWCP did not issue a new 

preliminary determination advising appellant of its findings following the hearing representative’s

April 2, 2020 decision, which found that the case was not in posture for decision, set aside the 

preliminary overpayment determination, and remanded the case for further development. Instead, 

it finalized the overpayment adjusting the amount of the overpayment to $3,146.57 for the period 

January 1, 2012 through October 12, 2019, without issuing a new preliminary determination. 

OWCP did not provide appellant with the right to challenge the new amount of overpayment or 

inform her whether she was entitled to waiver of recovery, thereby infringing upon her due process 

procedural rights.13

OWCP 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.14 It 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, and the right to request a waiver of recovery of the overpayment.15

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

made in a final overpayment decision.

The Board finds that, in the current case, appellant was not afforded her procedural rights 

to challenge the fact and new amount of overpayment and to request a waiver of recovery of the 

overpayment, or to submit new information regarding waiver of recovery of the overpayment. 17 

Consequently, OWCP did not comply with the procedural rights under its regulations.18

Accordingly, the case will be remanded for OWCP to issue a preliminary determination 

regarding overpayment consistent with its own procedures.

 

12 See K.G., Docket No. 17-0517 (issued September 8, 2017); see N.N.,Docket No. 14-0603 (issued July 22, 2014); 

J.J., Docket No. 13-1905 (issued April8, 2014); L.B., Docket No. 12-1202 (issued February 6, 2013).

13 20 C.F.R. §§ 10.431, 10.432.

14 Id. at § 10.431(a).

15 Id. at § 10.431(d).

16 Id. at § 10.440 (b).

17 Supra note 15.

18 Supra note 13; see also K.H.,Docket No. 11-603 (issued September 27, 2011); K.G., supra note 12.
6

CONCLUSION

The Board finds that OWCP improperly issued its October 1, 2020 overpayment decision.

ORDER

IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of 

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

consistent with this decision of the Board.

Issued: September 20, 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