C.F. and Department of the Navy, Camp Smedley D. Butler, Okinawa, Japan (Board decision, September 25, 2014)

ECAB remand decision. The Board set aside OWCP’s July 19, 2013 overpayment and fault decision and returned it for consideration of C.F.’s written objections. Whether the overpayment and fault findings stand remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final as to the appealed decision 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless the order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

OWCP found that C.F. had been overpaid compensation because he worked part time while receiving total disability benefits. After an earlier Board remand, OWCP again found an overpayment and fault, stating that C.F. had not contested its preliminary finding. The Board found that he had sent a letter before the final decision challenging the amount, repayment deductions, and notice. OWCP had not addressed that letter. The Board set aside the decision and directed OWCP to consider his arguments before deciding again.

Decision snapshot

• Authority: Board decision finality and complete-record review, 20 C.F.R. § 501.6(d).
• Outcome: July 19, 2013 overpayment and fault decision set aside and remanded.
• Key point: OWCP could not say no objection was received while leaving a timely written challenge unaddressed.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
C.F., Appellant
)
)
and ) Docket No. 14-165
) Issued: September 25, 2014
DEPARTMENT OF THE NAVY, CAMP
)
SMEDLEY D. BUTLER, Okinawa, Japan,
)
Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On October 30, 2013 appellant filed a timely appeal from the July 19, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) which found that he received an overpayment of compensation in the amount of $3,605.65 because he worked while receiving total disability compensation. OWCP also denied waiver of recovery of the overpayment. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
This case has previously been before the Board.2 The Board found that OWCP, in its February 23, 2010 decision, did not follow proper procedures in that it did not give appellant sufficient notice of its preliminary finding of overpayment. The Board further found that the record was devoid of official records indicating appellant’s earnings, so it was not clear how

1
5 U.S.C. § 8101 et seq.
2
Docket No. 10-2163 (issued March 18, 2011). On April 14, 2003 OWCP accepted that appellant, then a 46- year-old athletic director, suffered from a respiratory illness due to poor circulation in his office diagnosed as hypersensitive pneumonitis. It declared an overpayment of compensation as appellant continued to receive compensation benefits for total disability as opposed to partial disability based on his part-time actual earnings as an imaging specialist at Ritz Camera. OWCP arrived at the amount of the overpayment. Accordingly, the Board set aside OWCP’s overpayment decision and remanded the case for further consideration consistent with the decision. The facts as set forth in the Board’s prior decision are hereby incorporated by reference.
On June 24, 2011 OWCP made a preliminary determination that appellant was overpaid in the amount of $3,605.65 because her worked while receiving temporary total compensation. It noted that, for the period August 2007 through January 2009, appellant earned a total of $9,028.00 at Ritz Camera. OWCP noted that, for this period, appellant received a total of $43,587.65 in compensation. It determined that the difference between these figures, $3,605.65, was the amount of the overpayment. OWCP further determined that appellant was with fault in the creation of the overpayment because he received dual benefits.

By letter to OWCP dated May 3, 2013, appellant contended that the deductions from his compensation had not stopped despite the Board’s March 18, 2011 decision. He also contended that OWCP has not been in contact with him regarding this matter; that he has been unable to reach the claims examiner; and that he had not received the second preliminary determination until reaching an operator at OWCP on April 15, 2013. Appellant argued that there were still discrepancies in the amount of benefits he should have received following the appeal, the total amount of overpayment and the amount actually paid back to date.

By decision dated July 19, 2013, OWCP finalized its preliminary determination and found that appellant received an overpayment of compensation in the amount of $3,605.65 for which he was at fault as he knew or should have known he was not entitled to these benefits. In making this decision, OWCP indicated that it had not received a response from appellant to its preliminary decision and that he had not contested the finding.

The Board, having duly considered the matter, notes that OWCP never addressed appellant’s letter of May 3, 2013 in its final overpayment decision of July 19, 2013; in fact, OWCP indicated that appellant had not contested its finding of overpayment. As the Board’s decisions are final with regard to the subject matter appealed, it is crucial that OWCP address all relevant evidence and argument received prior to the issuance of its final decision.3 In this instance, OWCP erred as it failed to consider appellant’s arguments presented in his May 3, 2013 letter.4 As it failed to address all relevant evidence and argument before it at the time of its decision, the case is remanded for a proper review and issuance of an appropriate final overpayment decision.

3
20 C.F.R. § 501.6(d); see William A. Couch, 41 ECAB 548, 553 (1990).
4
William McKennon, 51 ECAB 145 (1999).

2
 IT IS HEREBY ORDERED THAT the July 19, 2013 decision of the Office of Workers’ Compensation Programs is set aside, and the case is remanded for further action consistent with this order of the Board.

Issued: September 25, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

3