United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.G., Appellant

and

U.S. POSTAL SERVICE, STOCKYARD POST 

OFFICE, Chicago, IL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-0926

Issued: December 7, 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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On June 1, 2021 appellant, through counsel, filed a timely appealfrom a February 18, 2021

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

Appellate Boards assigned Docket No. 21-0926.

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On January 22, 2016 appellant, then a 53-year-old carrier technician, filed a traumatic 

injury claim (Form CA-1) alleging that on December 23, 2015 she injured her left foot when a 

shelf from an automated postal center (APC) fell on it while in the performance of duty. OWCP 

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 Docket No. 20-0735 (issued October 23, 2020).
2

accepted her claim for displaced fracture of the second metatarsal bone of the left foot. It paid 

wage-loss compensation on the supplemental rolls, beginning May 4, 2016.

By decision dated March 28, 2019, OWCP found that appellant had forfeited her 

entitlement to compensation for the period May 26, 2016 through January 20, 2017 because she 

knowingly failed to disclose her outside earnings and employment pursuant to 5 U.S.C. § 8106(b).

On April 2, 2019 OWCP advised appellant of its preliminary overpayment determination 

that she had received an overpayment of compensation in the amount of $13,963.50 for the period 

May 26, 2016 through January 20, 2017, as she had forfeited her entitlement to wage-loss 

compensation. It provided its calculations on the amount of compensation paid during the period. 

OWCP further notified appellant of its preliminary finding that she was at fault in the creation of 

the overpayment. It provided her with an overpayment action request form and an overpayment 

recovery questionnaire (Form OWCP-20). 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.

On April 2, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, regarding the March 28, 2019 

forfeiture decision. The telephonic hearing was held on July 17, 2019.

By decision dated July 26, 2019, OWCP finalized its preliminary overpayment

determination that appellant had received an overpayment of compensation in the amount of 

$13,963.50 for the period May 26, 2016 through January 20, 2017, as she had forfeited her 

entitlement to wage-loss compensation. It further finalized its finding that she was at fault in the 

creation of the overpayment, thereby precluding waiver of recovery of the overpayment.

By decision dated September 24, 2019, an OWCP hearing representative affirmed the 

March 28, 2019 forfeiture decision.

Appellant appealed the September 24, 2019 decision to the Board. By decision dated 

October 23, 2020, the Board affirmed, in part, and reversed, in part, the September 24, 2019 

decision. It found that OWCP had properly determined that appellant forfeited her entitlement to 

compensation for the period June 11, 2016 through January 20, 2017, as she had failed to report 

earnings from employment during the claimed period. The Board also found that OWCP had 

improperly determined that appellant had forfeited her entitlement to compensation for the period 

May 26 through June 10, 2016 because the evidence of record did not support that she was engaged 

in employment activity or received earnings during this period.

By decision dated February 18, 2021, OWCP issued an amended final overpayment 

determination that appellant had received an overpayment of compensation in the amount of 

$13,779.34 for the period June 11, 2016 through January 20, 2017 because she forfeited her 

entitlement to compensation pursuant to 5 U.S.C. § 8106(b). It further found that appellant was at 

fault in the creation of the overpayment because she knowingly accepted payments that she knew 

she was not entitled to and she failed to furnish information, which she should have known to be 

material.
3

The Board has duly considered the matter and finds that OWCP improperly issued its 

February 18, 2021 decision regarding the overpayment of compensation without providing 

appellant due process.3 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 the overpayment.4 The written notification must also include a preliminary 

finding regarding whether the individual was at fault in the creation of the overpayment. 5 OWCP 

must inform the individual of 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. 6 Its procedures further provide 

that a preliminary overpayment determination should be issued within 30 days and must clearly 

identify the reason that the overpayment occurred and the basis for any fault finding. 7

The Board has found that 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.8 The claimant is, therefore, precluded from introducing new evidence 

to rebut findings made in a final overpayment decision.

In this case, OWCP did not issue a new preliminary overpayment determination advising 

appellant of its findings following the October 23, 2020 Board decision. Instead of issuing a new 

preliminary overpayment determination advising appellant of its findings following the new period 

of forfeiture, June 11, 2016 through January 20, 2017, OWCP simply amended the final amount 

of overpayment to the amount of $13,779.34. As OWCP failed to issue a new preliminary

overpayment determination explaining its new findings, and providing appellant r with the right 

to challenge the fact and amount of overpayment, it did not comply with its procedural rights under 

its regulations.9

Accordingly, the Board finds that the case must be remanded for OWCP to issue a new 

preliminary overpayment determination, with an overpayment action request form, a Form 

OWCP-20, and instructions for appellant to provide supporting financial documentation. 

Following this, and other such further development as deemed necessary, OWCP shall issue a 

de novo decision.

3

See L.V., Docket No. 15-1856 (issued July 19, 2016); B.T., 14-1909 (issued May 19, 2015).

4

20 C.F.R. § 10.431(a).

5

Id. at § 10.431(b).

6

Id. at § 431(c) – (d).

7 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, 

Chapter 6.300.5(September 2020); see also P.A., Docket No. 17-0075 (issued April10, 2017).

8 A.L., Docket No. 21-0099 (issued September 20, 2021); K.G., Docket No. 17-517 (issued September 8, 2017); 

L.V., supra note 3; see also 20 C.F.R. § 10.440(b).

9

Id. at §§ 10.431, 10.432; see also M.V., Docket No. 13-798 (issued August14, 2013); K.G., Docket No. 08-2135 

(issued April 16, 2009).
4

IT IS HEREBY ORDERED THAT the February 18, 2021 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: December 7, 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