D.M. and Department of the Navy, Military Sealift Fleet Support Command, Norfolk, VA (Board decision, June 14, 2011)

ECAB remand decision (order). The Board set aside OWCP’s March 22, 2010 overpayment ruling and returned the case for a hearing. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it, but it does not decide the overpayment and waiver issues. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

D.M., a Navy employee, requested a hearing before OWCP collected an asserted $2,035.81 overpayment. OWCP scheduled the hearing after it had been told he was deploying overseas. The Board found the evidence supported that D.M. did not receive the hearing notice while away. It set aside the overpayment ruling and returned the case so he could have the requested hearing.

Decision snapshot

• Authority: Board precedent on hearing requests and notice.
• Outcome: $2,035.81 overpayment ruling set aside and remanded for a hearing.
• Key point: A timely hearing request could not be treated as abandoned when deployment prevented notice.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.M., Appellant
)
)
and ) Docket No. 10-1539
) Issued: June 14, 2011
DEPARTMENT OF THE NAVY, MILITARY
)
SEALIFT FLEET SUPPORT COMMAND,
)
Norfolk, VA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On May 19, 2010 appellant filed an application for review of a March 22, 2010 decision of the Office of Workers’ Compensation Programs (OWCP) that found that he received an overpayment in compensation in the amount of $2,035.81. The appeal was docketed as No. 10-1539.

By letter dated July 17, 2009, OWCP issued a preliminary determination that appellant received a $2,035.81 overpayment in compensation because he was overpaid hazard pay in his compensation benefits.1 Appellant was found without fault and OWCP advised him of his rights if he disagreed with the preliminary finding.

On July 28, 2009 appellant requested a prerecoupment hearing. He returned to work on August 4, 2009. By e-mail on September 15, 2009, a nurse assigned to his case notified an OWCP claims examiner that appellant was going to be deployed overseas on 1 OWCP found that appellant was entitled to $1,529.00 in hazard pay annually, but the amount of $15,296.00 was keyed in to the compensation rolls, which created the overpayment. It determined that the correct weekly pay rate for compensation purposes was $890.69 and noted that he had been paid $8,849.58 in compensation for the period March 27, 2009 through June 6, 2009, when he should have received compensation of $6,813.77, yielding an overpayment in compensation of $2,035.81. September 18, 2009. By letter dated October 14, 2009, OWCP informed appellant that a telephone hearing was scheduled for 9:00 a.m. on November 19, 2009. Appellant submitted nothing further and did not telephone the Office at the appointed time. On March 22, 2010 an OWCP hearing representative found that appellant abandoned the hearing request and finalized the overpayment decision. He found that appellant was not at fault in the creation of the overpayment but that he was not entitled to waiver because he provided no financial information to justify waiver. The hearing representative ordered repayment of the overpayment in full.

Appellant asserts on appeal that because he was deployed at sea from September 16, 2009 until April 16, 2010, he was not informed of the hearing scheduled for November 19, 2009 and, therefore, he did not abandon his hearing request. The Board has duly considered the matter and finds that the case is not in posture for decision as the evidence supports that appellant did not receive the October 14, 2009 letter informing him of the date and time of the scheduled hearing.

The mailbox rule provides that proper and timely mailing of a document in the ordinary course of business raises a rebuttable presumption of receipt by the addressee.2 As a rebuttable presumption, receipt will not be presumed, however, when there is evidence of nondelivery, and the presumption may also be rebutted by other evidence that supports that the addressee did not receive the correspondence. In this case, the nurse assigned to appellant’s case informed OWCP on September 15, 2009 that he was leaving for an overseas deployment on September 18, 2009. OWCP did not inform him of the scheduled hearing until October 14, 2009, after his deployment. This evidence supports his contention that, as he was deployed out of the country for seven months as of September 18, 2009, he did not receive hearing notice advising him of the date and time of his requested hearing.

The Board concludes that, under circumstances such as these where a claimant, such as appellant, timely requested a prerecoupment hearing within 30 days of the July 17, 2009 preliminary overpayment notice and did not receive notice of the hearing, he was not provided the opportunity to present testimonial evidence regarding the overpayment. The case must therefore be remanded to OWCP to consider the request for a hearing.3 The Board will set aside the March 22, 2010 decision and remand the case for proceedings consistent with this order of the Board.

2
See M.U., Docket No. 09-526 (issued September 14, 2009).
3
Willie C. Howard, 55 ECAB 564 (2004).

2
 IT IS HEREBY ORDERED THAT the March 22, 2010 decision of the Office of Workers’ Compensation Programs be set aside and the case remanded to the Office.

Issued: June 14, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3