United States Department of Labor

Employees’ Compensation Appeals Board

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R.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

OLIN E. TEAGUE VETERANS’ MEDICAL

CENTER, Temple, TX, Employer

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Docket No. 23-0598

Issued: October 18, 2023

Appearances: Case Submitted on the Record1

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 17, 2023 appellant filed a timely appeal from a November 3, 2022 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has 

elapsed from OWCP’s last merit decision, dated September 12, 2022, to the filing of this appeal, 

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of her oral argument request, appellant argued that she was entitled to waiver of recovery of an overpayment 

as she currently needed all of her monthly income to meet her expenses. The Board, in exercising its discretion, denies 

appellant’s request for oral argument because it does not have jurisdiction over the merits of the case and this matter

can be adequately addressed in a decision based on a review of the case record. Oral argument in this appeal would 

not serve a useful purpose. Therefore, the oral argument request is denied, and this decision is based on the case 

record as submitted to the Board.
2

pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction to review the merits of this case. 3

ISSUE

The issue is whether OWCP properly denied appellant’s request for a prerecoupment 

hearing as untimely filed.

FACTUAL HISTORY

On April 4, 2019 appellant, then a 65-year-old vocational rehabilitation specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on March 15, 2019 she experienced a chemical 

burn of her throat after her office was mopped with a cleaning solution while in the performance 

of duty. OWCP accepted the claim for laryngeal spasm, burn of the larynx and trachea, localized 

swelling, mass and lump of the neck, and acute bronchospasm. It paid appellant wage-loss 

compensation on the supplemental rolls, effective April 30, 2019, and on the periodic rolls, 

effective August 18, 2019.

In a preliminary overpayment determination dated August 4, 2022, OWCP notified 

appellant of its preliminary determination that she had received an overpayment of compensation 

in the amount of $39,688.77 for the period February 1, 2019 through July 16, 2022, because she 

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

FECA wage-loss compensation benefits without an appropriate offset. It determined that she was 

without fault in the creation of the overpayment because she could not have reasonably known that 

an improper payment had occurred. OWCP requested that appellant submit a completed 

overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable repayment 

schedule, and advised her that she could request a waiver of recovery of the overpayment. It 

further requested that she provide supporting financial documentation, including copies of income 

tax returns, bank account statements, bills, pay slips, and any other records to support income and 

expenses. Additionally, OWCP provided an overpayment action request form and notified 

appellant that, within 30 days of the date of the letter, she could request a final decision based on 

the written evidence or a prerecoupment hearing. 

On September 2, 2022 OWCP received an overpayment action request form in which 

appellant requested that OWCP make a decision based on the written evidence. Appellant

requested waiver of recovery of the overpayment because she was found to be without fault in the 

creation of the overpayment. 

2

5 U.S.C. § 8101 et seq.

3 The Board notes that, following the November 3, 2022 decision and on appeal, OWCP received additional 

evidence. However, the Board’s Rules of Procedureprovides: “The Board’s review of a case is limited to the evidence 

in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be 

considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from 

reviewing this additional evidence for the first time on appeal. Id.
3

On a Form OWCP-20 dated August 31, 2022, appellant reported a monthly gross income 

of $3,180.00 in SSA benefits and $1,460.00 of other income, for a total of $4,670.00 in monthly 

income. She noted $4,305.00 in monthly expenses and assets of $2,090.00. 

Appellant, through counsel, submitted a September 2, 2022 response to the preliminary 

overpayment determination. 

By decision dated September 12, 2022, OWCP finalized its preliminary overpayment 

determination, finding that appellant received an overpayment of compensation in the amount of 

$39,688.77 for the period February 1, 2019 through July 16, 2022 because she concurrently 

received SSA age-related retirement benefits and FECA wage-loss compensation benefits without 

an appropriate offset. It also found that she was without fault in the creation of the overpayment,

but denied waiver of recovery of the overpayment. OWCP noted that waiver was denied because 

there was no evidence to substantiate that adjustment or recovery would defeat the purpose of 

FECA, or be against equity and good conscience. It required recovery of the overpayment by 

deducting $725.67 every 28 days from appellant’s continuing compensation payments.

On October 14, 2022 OWCP received an overpayment action request form, dated 

September 29, 2022, in which appellant requested a prerecoupment hearing. On the form, 

appellant indicated that she disagreed that the overpayment occurred, requested waiver of recovery 

of the overpayment, and asserted that her retirement income was lost in the February 2021 Texas 

freeze, and that she would experience financial hardship. She submitted a federal tax return from 

2021. Appellant also submitted a Form OWCP-20 dated August 31, 2022 and a September 2, 

2022 response to the preliminary overpayment determination, previously of record. 

By decision dated November 3, 2022, OWCP denied appellant’s request for a 

prerecoupment hearing as untimely filed. It found that her request was not filed within 30 days of 

the August 4, 2022 preliminary overpayment determination.

LEGAL PRECEDENT

OWCP’s regulations provide that a claimant may request a prerecoupment hearing with 

respect to an overpayment.4 The date of the request is determined by the postmark or other 

carrier’s date marking.5 Failure to request the prerecoupment hearing within 30 days shall 

constitute a waiver of the right to a hearing.6 The only right to a review of a final overpayment 

4

20 C.F.R. § 10.432. See E.M.,Docket No. 19-0857 (issued December 31, 2019); D.H., Docket No. 19-0384 

(issued August 12, 2019).

5

Id. at § 10.439, 10.616(a); see A.B., Docket No. 18-1172 (issued January 15, 2019);see also B.W., Docket No. 

18-1004 (issued October 24, 2018); C.R., Docket No. 15-0525 (issued July 20, 2015).

6

Id.
4

decision is with the Board.7 The hearing provisions of section 8124(b) of FECA (5 U.S.C. 

§ 8124(b)) do not apply to final overpayment decisions.8

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for a prerecoupment 

hearing as untimely filed.

OWCP issued a preliminary overpayment determination on August 4, 2022. It advised 

appellant that she had 30 days from that date to request a prerecoupment hearing. The record 

indicates that OWCP properly mailed its preliminary determination to her last known address of 

record. On September 2, 2022 appellant requested that OWCP make a decision based on the 

written evidence. She did not request a prerecoupment hearing within 30 days of August 4, 2022. 

On October 14, 2022 OWCP received an overpayment action request form, dated 

September 29, 2022, with no postmark, in which appellant requested a prerecoupment hearing. 

The timeliness of a request for a prerecoupment hearing is determined by the postmark date or 

other carrier’s marking showing when the request was sent to OWCP.9 As appellant’s request for 

a prerecoupment hearing was dated September 29, 2022, more than 30 days after the August 4, 

2022 preliminary overpayment determination, it was untimely filed. Therefore, OWCP properly 

denied her request for a prerecoupment hearing as untimely filed.

10

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for a prerecoupment 

hearing as untimely filed.

7

20 C.F.R. § 10.440(b). See R.S., Docket No. 20-0624 (issued February 9, 2022).

8

Id. at § 10.440(b). See G.L., Docket No. 19-0297 (issued October 23, 2019).

9 A.B., Docket No. 18-1172 (issued January 15, 2019).

10 See F.P., Docket No. 20-1646 (issued August 3, 2021).
5

ORDER

IT IS HEREBY ORDERED THAT the November 3, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 18, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board