N.M. and Small Business Administration, Office of Disaster Personnel, Atlanta, GA (Board decision, September 26, 2014)

ECAB remand decision. The Board set aside OWCP’s February 25, 2014 overpayment decision and returned it for consideration of N.M.’s response received before the decision. The overpayment and waiver questions remain 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 preliminarily found that N.M. had been overpaid $10,010.11 in disability compensation because it used an incorrect pay rate. He submitted a response seeking a telephone conference and waiver based on financial hardship before OWCP issued its final decision. OWCP nevertheless said it had received no response, finalized the overpayment, and denied waiver. The Board set aside that decision and directed OWCP to consider the timely response and financial documents before deciding again.

Decision snapshot

• Authority: FECA compensation and overpayment review, 5 U.S.C. § 8101 et seq.
• Outcome: February 25, 2014 overpayment and waiver decision set aside and remanded.
• Key point: OWCP had to review the response received before it finalized the overpayment and denied waiver.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
N.M., Appellant
)
)
and
)
) Docket No. 14-954
SMALL BUSINESS ADMINISTRATION, ) Issued: September 26, 2014
OFFICE OF DISASTER PERSONNEL,
)
Atlanta, GA, Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 20, 2014 appellant filed a timely appeal of a February 25, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as No. 14-954. 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.

Appellant filed a claim for benefits on February 15, 2013, which was accepted for tibia fracture and fibula fracture. Appellant stopped work on the date of injury. He began receiving compensation for temporary total disability and was placed on the periodic rolls. By letter dated January 23, 2014, OWCP made a preliminary finding that an overpayment in the amount of $10,010.11 had occurred because appellant was paid an incorrect pay rate during the period April 1 to December 3, 2013. It further found that appellant was without fault in its creation.

The Board has duly considered the matter and notes that in the case of William A.
2
Couch, the Board held that, when adjudicating a claim, OWCP is obligated to consider all

1
5 U.S.C. § 8101 et seq.
2
41 ECAB 548 (1990). evidence properly submitted by a claimant and received by OWCP before the final decision is issued. In the present case, OWCP received a February 24, 2014 response from appellant to its January 23, 2014 preliminary overpayment notice in which he requested a telephonic conference to address waiver of the overpayment. Appellant also submitted a cover letter in which he requested waiver of the overpayment due to financial hardship.

While OWCP is not required to list every piece of evidence submitted to the record, the record is clear that the statement and financial documents appellant submitted, received by OWCP on February 24, 2014, were not reviewed. In its February 25, 2014 decision, OWCP finalized the January 23, 2014 preliminary determination that an overpayment had occurred and denied waiver of the overpayment. It stated that no response had been received to the preliminary decision when in fact the record reflects that OWCP received appellant’s response on February 24, 2014. For this reason, the case will be remanded to OWCP to enable it to properly consider appellant’s response and all the evidence submitted prior to the issuance of the February 25, 2014 decision. Following further development as the OWCP deems necessary, it shall issue an appropriate decision on the merits.

IT IS HEREBY ORDERED THAT the February 25, 2014 decision of the Office of Workers’ Compensation Programs is set aside; the case record is remanded to OWCP for further proceedings consistent with this order of the Board.

Issued: September 26, 2014
Washington, DC

Christopher J. Godfrey, 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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