A.R. and U.S. Postal Service, Bay Valley Performance Cluster, Oakland, CA (Board decision, February 3, 2015)

ECAB final decision. The Board set aside OWCP’s July 3, 2014 overpayment decision and remanded for consideration of a timely response. Under 20 C.F.R. § 501.6(d), this decision becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this decision 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

A.R. received workers’ compensation and retirement payments for an overlapping period, and OWCP found a $2,583.39 overpayment for which it held her at fault. She had submitted a response disputing fault and providing financial information before OWCP issued its decision. The Board found that OWCP had incorrectly stated that she did not respond and had failed to review her submission. It set the decision aside and sent the matter back for proper consideration, without deciding fault or the amount owed.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: $2,583.39 overpayment decision set aside and remanded for evidence review.
• Key point: OWCP had to consider the employee’s response received before its final overpayment decision.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
A.R., Appellant
)
)
and ) Docket No. 14-1715
) Issued: February 3, 2015
U.S. POSTAL SERVICE, BAY VALLEY
)
PERFORMANCE CLUSTER, Oakland, CA,
)
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 September 15, 2014 appellant filed a timely appeal from a July 3, 2014 decision of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as No. 14-1715. By its July 3, 2014 decision, OWCP found that appellant was at fault in the creation of an overpayment in the amount of $2,583.39 as she received both compensation and retirement benefits during the period December 14, 2013 through February 8, 2014. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

The Board has duly considered the matter and notes that, in the case of William A.
Couch,2 it held that, when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by it before the final decision is issued. By letter dated May 28, 2014, appellant disagreed that she was at fault in the creation of any overpayment. She stated that she had elected OPM benefits in December 2013, but that OWCP continued to deposit payments into her bank account, despite her submission of an election form and multiple

1
5 U.S.C. § 8101 et seq.
2
41 ECAB 548 (1990). telephone conversations with OWCP. Appellant also submitted financial information with her letter.

In its July 3, 2014 decision, OWCP found that appellant was at fault in the creation of an overpayment in the amount of $2,583.39. It noted that “You did not submit a response to the preliminary decision dated May 7, 2014.” However, appellant’s response by letter dated May 28, 2014 was received on June 2, 2014.

While OWCP is not required to list every piece of evidence submitted to the record, the record is clear that appellant’s response to the preliminary overpayment decision was not reviewed before the issuance of its July 3, 2014 decision. Whether it receives relevant evidence on the date of the decision or several days before, such evidence must be considered.3 As the Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to the subject matter of the claim properly submitted to OWCP be reviewed and addressed.4 Accordingly, the case is remanded for proper review of the evidence and, following any necessary further development, the issuance of an appropriate final decision.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated July 3, 2014 is set aside and the case remanded for further action consistent with this order of the Board.

Issued: February 3, 2015
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

3
J.I., Docket No. 12-1062 (issued December 12, 2012); William McKennon, 51 ECAB 145 (1999).
4
See Yvette N. Davis, 55 ECAB 475 (2004).

2