United States Department of Labor

Employees’ Compensation Appeals Board

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H.B., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

AGENCIES, Columbus, OH, Employer

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Docket No. 19-0356

Issued: March 20, 2020

Appearances: Case Submitted on the Record

Ian Michael Overking, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On December 5, 2018 appellant, through counsel, filed a timely appeal from an October 29, 

2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the 

Appellate Boards docketed the appeal as Docket No. 19-0356.

In a March 14, 2018 preliminary notice, OWCP advised appellant of its determination that 

he had received an overpayment of compensation in the amount of $41,001.66 because he had 

received Social Security Administration (SSA) Federal Employees Retirement System (FERS) 

age-related retirement benefits attributable to his federal service, as well as Federal Employees’

Compensation Act (FECA) benefits during the period November 1, 2006 through 

October 14, 2017. OWCP found that appellant was without fault in the creation of the

overpayment. Appellant was provided an overpayment recovery questionnaire (OWCP-20) and 

was informed of his appeal rights to address waiver of recovery of the overpayment.

 

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 April 2, 2018 appellant requested a telephone conference with OWCP regarding the 

issues of fault and possible waiver of recovery of the overpayment.

OWCP and appellant’s then-counsel engaged in a series of pre-conference telephone calls 

regarding the preliminary overpayment decision. In the last memorandum of telephone call to 

appellant’s counsel, dated June 11, 2018, OWCP noted that it had informed counsel that it could 

compromise the overpayment down to $9,569.20 and recover the overpayment at a rate of $80.00 

every 28 days, so that the overpayment would be paid, rather than waived.

By decision dated June 26, 2018, OWCP granted waiver of recovery of the entire 

overpayment. It found that the circumstances of the case warranted waiver of recovery because 

the period necessary to repay the debt, with charges, would be 668.73 months, which was longer 

than appellant’s life expectancy of 121.2 months.

On September 14, 2018 the employing establishment sent a detailed correspondences to 

OWCP and requested that it review the June 26, 2018 waiver decision on its own motion. It argued

that OWCP had improperly granted waiver of the entire overpayment, because the procedure 

manual did not allow for waiver of the overpayment principal.2 

By decision dated October 29, 2018, OWCP found an overpayment of compensation had 

been created in the amount of $41,001.66 for which appellant was not at fault. It denied waiver of 

recovery of the overpayment based on appellant’s failure to establish that he required substantially 

all of his income to meet ordinary and necessary living expenses. It further determined that it 

would recover the overpayment by deducting $400.00 every 28 days from his continuing 

compensation payments. OWCP noted that it had to reopen the decision to waive the debt based 

upon concerns raised by the employing establishment. 

The Board finds that this case is not in posture for decision. OWCP is required by statute 

and regulation to make findings of fact and provide a statement of reasons.3 After OWCP granted 

waiver of recovery of the overpayment on June 26, 2018, but prior to the October 29, 2018 final 

overpayment decision, OWCP updated its procedures regarding overpayment and debt collection 

in September 2018. In FECA Transmittal No. 18-044, OWCP explained that it had completely 

overhauled the debt management processes, including identifying and calculating an overpayment, 

making preliminary and final determinations, and liquidating the debt. The Board finds that 

appellant was entitled to a decision which explained why and on what legal basis the June 26, 2018 

decision waiving recovery of the overpayment was rescinded in the October 29, 2018 decision. .

The Board notes that the circumstances of this case reflect that appellant’s then-counsel 

was informed during the telephone conference of June 11, 2018 that the overpayment could be 

 

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

Chapter 6.300.4 (June 2009)

3 5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or 

against payment of compensation. 20 C.F.R. § 10.126 provides that its final decision shall contain findings of fact and 

a statement of reasons. See also H.O., Docket No. 19-0198, Order Remanding Case (issued July 3, 2019).

4 See FECA Transmittal No. 18-04 (issued September 2018).
3

compromised. OWCP’s new procedures at Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Initial Determinations in an Overpayment, Chapter 6.400.5(c)(4) (September 2018) 

provide in part that a final overpayment decision shall provide a discussion, including ... a 

summary of any conference held and conclusions drawn from it; consideration of waiver of 

recovery where the overpaid individual is found without fault; and, if the overpayment is 

recoverable, an appropriate collection plan.

As OWCP failed to provide findings pursuant to its procedures or legal rationale explaining 

the rescission of waiver of the overpayment, and has not explained why waiver of the overpayment 

could not be granted pursuant to its new procedures, the Board finds that the case must be 

remanded for a new preliminary determination which provides proper findings of fact and 

conclusions of law and affords appellant due process rights to seek waiver of recovery of the 

overpayment. 

IT IS HEREBY ORDERED THAT October 29, 2018 decision of the Office of Workers’

Compensation Programs is set aside and this case is remanded for further proceedings consistent 

with this order of the Board.

Issued: March 20, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board