J.L. and U.S. Postal Service, General Mail Facility, Amarillo, TX (Board decision, May 9, 2012)

ECAB remand decision. The Board set aside OWCP's September 9, 2011 overpayment decision because it did not honor J.L.'s timely request for a prerecoupment hearing. Whether an overpayment is owed, its amount, and fault remain unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

OWCP alleged that J.L., a postal employee, had received an overpayment because it had not deducted health benefit premiums. J.L. timely requested a prerecoupment hearing and disputed fault, but OWCP held a telephone conference with a claims examiner instead and issued a final overpayment decision. The Board held that the conference did not satisfy his hearing request and that the decision was premature. It also noted that OWCP had changed its preliminary fault finding without proper notice. The Board set aside the decision and returned the case for the requested hearing and a new decision.

Decision snapshot

• Authority: Overpayment notice and hearing procedures, 20 C.F.R. §§ 10.431(b), 10.432.
• Outcome: September 9, 2011 overpayment decision set aside; case remanded.
• Key point: A claims-examiner conference did not replace the prerecoupment hearing J.L. requested on time.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.L., Appellant
)
)
and ) Docket No. 12-48
) Issued: May 9, 2012
U.S. POSTAL SERVICE, GENERAL MAIL
)
FACILITY, Amarillo, TX, 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 October 11, 2011 appellant filed a timely appeal from a September 9, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding that he received an overpayment of compensation for which he was at fault. The Board docketed the appeal as No. 12-48.

The Board has reviewed the case and finds that it is not in posture for decision. On August 2, 2011 OWCP notified appellant of its preliminary determination that he received an overpayment of compensation in the amount of $4,030.50 because it did not deduct premiums for health benefits from May 31, 2010 to July 2, 2011. It advised him that within 30 days he could request a telephone conference, a final decision based on the written evidence or a prerecoupment hearing. OWCP provided on the form that a prerecoupment hearing before the Branch of Hearings and Review could be held by telephone in a teleconference.

On August 19, 2011 OWCP received appellant’s timely request for a prerecoupment hearing before OWCP’s Branch of Hearings and Review.1 Appellant indicated that he was amenable to the option of a telephone hearing. He contended that he was not at fault in creating the overpayment and requested that it be waived. OWCP, however, did not conduct a

1
The envelope containing the request is not in the record. prerecoupment hearing. Instead, on September 9, 2011 it held a telephone conference with a claims examiner. By decision dated September 9, 2011, OWCP determined that appellant received an overpayment of compensation in the amount of $4,080.50 because it did not deduct health benefit premiums from May 31, 2010 through July 22, 2011. It further determined that he was at fault creating the overpayment and thus it could not be waived.

OWCP is required to follow certain procedures in overpayment cases. Section 10.432 provides that the recipient of an alleged overpayment may present evidence in response to OWCP’s preliminary notice, either in writing or at a prerecoupment hearing requested within 30 days.2 As appellant timely requested a telephone prerecoupment hearing within 30 days of the August 2, 2011 preliminary determination and OWCP issued its September 9, 2011 final overpayment decision without properly addressing his request, the Board concludes that the September 9, 2011 decision was premature.3 The case must be remanded to OWCP to respond to his request for a prerecoupment hearing regarding the overpayment of compensation.4 Following this and such other development as deemed necessary, OWCP shall issue a de novo decision.

2
20 C.F.R. § 10.432.
3
The Board notes that OWCP, in the September 9, 2011 decision, inappropriately changed its preliminary finding that appellant was without fault to a finding that he was at fault without providing proper notice; see 20 C.F.R.
§ 10.431(b). OWCP further changed the amount and period of the overpayment; however, it appears that may have been a typographical error. 4 See Willie C. Howard, 55 ECAB 564 (2004).

2
IT IS HEREBY ORDERED THAT the September 9, 2011 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further proceedings consistent with this order of the Board.

Issued: May 9, 2012
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