F.W. and U.S. Postal Service, Los Angeles Bulk Mail Center, Bell, CA (Board decision, June 12, 2014)

ECAB remand decision. The Board set aside OWCP’s November 26, 2013 overpayment decision because F.W. had timely requested a prerecoupment hearing but OWCP issued a final decision without one. OWCP must hold the hearing and issue an appropriate new decision; the overpayment question remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final as to the issue appealed 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

F.W., a postal distribution clerk with an accepted work injury, appealed OWCP’s decision finding him at fault for a compensation overpayment. He mailed a request for a prerecoupment hearing within the 30-day period stated in OWCP’s preliminary notice. OWCP issued its final decision without giving him that hearing. The Board held that he was entitled to the hearing, set aside the decision, and returned the matter to OWCP for a hearing and a new decision. It did not decide whether the overpayment or fault finding was correct.

Decision snapshot

• Authority: Prerecoupment hearing request under 20 C.F.R. § 10.432.
• Outcome: OWCP’s overpayment decision set aside; case remanded for a hearing and new decision.
• Key point: OWCP could not finalize recovery after a timely prerecoupment hearing request without providing the hearing.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F.W., Appellant
)
)
and ) Docket No. 14-504
) Issued: June 12, 2014
U.S. POSTAL SERVICE, LOS ANGELES BULK
)
MAIL CENTER, Bell, CA, Employer
)
__________ )

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

ORDER REMANDING CASE

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

On January 7, 2014 appellant filed a timely appeal from the November 26, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), which found him at fault in the creation of an overpayment of compensation.1

The Board has duly considered the matter and finds that this case is not in posture for decision. The Director of OWCP has determined that the holding of the United States Supreme Court in Califano v. Yamasaki, 422 U.S. 682 (1979), is applicable to the recovery of overpayments under the Federal Employees’ Compensation Act and requires an opportunity for a prerecoupment hearing.2 OWCP regulations therefore provide that a prerecoupment hearing must be requested within 30 days of the date of the written notice of overpayment.3 Regulations

1
On December 19, 2007 appellant, 59-year-old distribution clerk, sustained a traumatic injury in the performance of duty when a piece of warehouse equipment pinned him against a wall. OWCP accepted his claim for multiple pelvic fractures. 2 Fred A. Cooper, Jr., 44 ECAB 498 (1993) (noting that the right to a prerecoupment hearing does not arise under 5 U.S.C. § 8124(b)).
3
20 C.F.R. § 10.432. further provide that failure to request a prerecoupment hearing within 30 days shall constitute a waiver of that right.4

OWCP issued a preliminary determination of overpayment on September 26, 2013 and provided appellant 30 days to request a prerecoupment hearing. In a letter postmarked October 26, 2013 and mailed to OWCP’s Branch of Hearings and Review, appellant timely requested a prerecoupment hearing before an OWCP hearing representative.

Appellant was thus entitled to a prerecoupment hearing as a matter of right. OWCP proceeded to a final decision on November 26, 2013, however, without providing a hearing.

As OWCP has denied appellant due process, the Board will set aside the November 26, 2013 final decision and remand the case for further action, including a prerecoupment hearing and appropriate final decision.

IT IS HEREBY ORDERED THAT the November 26, 2013 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action.

Issued: June 12, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4
Id.

2