J.B. and Department of Energy, State Energy Programs Division, Washington, DC (Board decision, May 25, 2011)

ECAB final decision. The Board set aside OWCP’s May 10, 2010 overpayment decision and remanded for action on J.B.’s hearing request. 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. 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

OWCP determined that J.B. had received a $39,914.68 compensation overpayment and was at fault. She requested a prerecoupment hearing within the allowed period, but OWCP issued a final overpayment decision without holding or addressing that hearing. The Board found the decision premature and returned the case for OWCP to respond to her timely request.

Decision snapshot

• Authority: Overpayment proceedings under 5 U.S.C. § 8129.
• Outcome: May 10, 2010 overpayment and fault decision set aside; hearing request remanded.
• Key point: OWCP had to address the timely prerecoupment hearing request before finalizing recovery.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.B., Appellant
)
)
and ) Docket No. 10-1651
) Issued: May 25, 2011
DEPARTMENT OF ENERGY, STATE
)
ENERGY PROGRAMS DIVISION,
)
Washington, DC, 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 June 7, 2010 appellant filed an application for review of May 10, 2010 merit decision of the Office of Workers’ Compensation Programs that found appellant at fault in creating an overpayment of compensation. The appeal was docketed as No. 10-1651.1

On April 6, 2010 the Office made a preliminary finding that appellant received a $39,914.68 overpayment of compensation from April 14, 2008 to August 29, 2009 as appellant continued to receive wage-loss compensation after her compensation was terminated effective April 13, 2008. It found appellant at fault in creating the overpayment and advised her of her rights if she disagreed with the preliminary finding.2 One of these options was to request a prerecoupment hearing within 30 days. On April 14, 2010 appellant requested a prerecoupment

1
On July 3, 1991 appellant was injured when she slipped and fell into a wall. The Office accepted the claim for cervical and lumbar strains. Appellant was eventually placed on the periodic compensation rolls. In an April 2, 2008 decision, the Office terminated appellant’s compensation benefits effective April 13, 2008. Appellant continued to receive compensation payments through August 29, 2009. She did not return to work. 2 The Office had previously issued a March 17, 2010 overpayment decision without a preliminary determination. Thus, it reissued its overpayment findings on April 6, 2010. hearing with the Office’s Branch of Hearings and Review. By decision dated May 10, 2010, the Office finalized the preliminary overpayment and fault finding.

The Board has duly considered the matter and finds that the case is not in posture for decision. Following the Office’s April 6, 2010 preliminary overpayment finding, appellant timely requested a prerecoupment hearing on April 14, 2010.3 The prerecoupment hearing, however, was not held prior to the issuance of the Office’s May 10, 2010 decision.4 Under these circumstances, where appellant timely requested a prerecoupment hearing within 30 days and the Office issued its May 10, 2010 final overpayment decision without properly addressing appellant’s request, the May 10, 2010 decision was premature. The case must be remanded for the Office to respond to appellant’s request for a prerecoupment hearing regarding the overpayment of compensation.5

IT IS HEREBY ORDERED THAT the May 10, 2010 decision of the Office of Workers’ Compensation Programs be set aside and the case remanded for action consistent with this order of the Board.

Issued: May 25, 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
See 20 C.F.R. § 10.432.
4
After appellant filed her appeal on June 7, 2010, the record indicates that the Office held a prerecoupment hearing on July 30, 2010. On November 16, 2010 the Office issued a new decision finalizing its overpayment and fault determination. Under the principles set forth in Douglas E. Billings, 41 ECAB 880 (1990), the Office’s November 16, 2010 decision, issued while the Board has jurisdiction over the matter in dispute, is null and void. 5 Willie C. Howard, 55 ECAB 564, 569 (2004).

2