T.P. and U.S. Postal Service, Post Office, Warren, OH (Board decision, May 13, 2013)

ECAB remand decision. The Board set aside OWCP’s September 20, 2012 fault determination concerning a $11,936 overpayment and remanded for specific findings on fault and waiver. The overpayment’s existence and amount were affirmed in an earlier Board decision; fault remains for OWCP to decide. 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).

Plain-English summary

T.P., a postal worker, received compensation during a period after a court entered a guilty verdict concerning false information on OWCP forms. In an earlier appeal, the Board upheld the existence and amount of an $11,936 overpayment but directed OWCP to make findings about fault. OWCP’s new decision listed several fault standards and referred to the conviction without explaining which conduct showed fault for payments received after the verdict. The Board held that the earlier conduct and receipt of later payments were separate questions. It set aside the new decision and directed OWCP to identify the evidence supporting fault and address waiver.

Decision snapshot

• Authority: 20 C.F.R. § 10.433 fault standards for compensation overpayments.
• Outcome: September 20, 2012 fault decision set aside; fault and waiver remanded. The $11,936 overpayment finding stands.
• Key point: A prior conviction did not replace specific findings about what T.P. knew or should have known about later payments.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.P., Appellant
)
)
and ) Docket No. 13-509
) Issued: May 13, 2013
U.S. POSTAL SERVICE, POST OFFICE,
)
Warren, OH, 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
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 2, 2013 appellant filed a timely appeal of an Office of Workers’ Compensation Programs’ (OWCP) decision dated September 20, 2012. The appeal was docketed as No. 13-509.

The Board issued a decision dated July 19, 2012 regarding two overpayments of compensation.1 With respect to an $11,936.00 overpayment for the period April 1 to August 28, 2010, the Board affirmed fact and amount of overpayment, but remanded the case for proper findings as to fault in creating the overpayment.2 The September 20, 2012 OWCP decision states that appellant was at fault “because of the following” and lists all of the fault standards under 20 C.F.R. § 10.433: made an incorrect statement as to a material fact which she knew or should have known to be incorrect, failed to provide information which she knew or should have known to be material, and accepted a payment which she knew or should have known was incorrect. The only additional statement as to fault is that “the conviction for fraud concerning OWCP compensation benefits is now final.” 1 Docket No. 12-7 (issued July 19, 2012).
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The Board also remanded the case with respect to the amount of a declared $1,589.64 overpayment resulting from an incorrect pay rate. The September 20, 2012 OWCP decision on appeal states that issues regarding this overpayment were considered in a separate correspondence.
The overpayment in this case occurred because appellant continued to receive compensation after April 1, 2010, when an Ohio Municipal Court entered a guilty verdict with respect to false information provided on compensation EN1032 forms. The conviction for fraud was previously of record and the overpayment was based on 5 U.S.C. § 8148(a), as discussed in the prior Board decision. It is important to note that the overpayment period did not begin until the guilty verdict was entered. The guilty verdict itself relates to actions prior to April 1, 2010. The fault issue regarding receipt of compensation from April 1 to August 28, 2010 is a separate issue. As to compensation from April 1 to August 28, 2010, if there was an incorrect statement or a failure to provide material information, OWCP must explain what incorrect statement was made or information omitted, and explain why appellant knew or should have known the information was incorrect or material. If appellant is found to have accepted payments covering the period April 1 to August 28, 2010 that she knew or should have known were incorrect, OWCP should explain what specific evidence established appellant knew or should have known the payments were incorrect.

Since OWCP failed to make proper findings as directed by the Board, the case will be remanded to OWCP. On return of the case record it should make specific findings as to fault and waiver. After such further development as OWCP deems necessary, it should issue an appropriate decision.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated September 20, 2012 is set aside and the case remanded for further action consistent with this order of the Board.

Issued: May 13, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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