G.L. and U.S. Postal Service, Brooklyn Processing & Distribution Center, Brooklyn, NY (Board decision, April 18, 2016)

ECAB remand decision. The Board set aside OWCP’s April 9 and August 25, 2015 overpayment and hearing decisions and remanded the case. Whether G.L. owes an overpayment remains unresolved. 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

G.L., a postal employee receiving disability compensation, returned to modified part-time work. OWCP found a $5,289.43 overpayment after treating her return as full-time work. G.L. contended that the modified job was withdrawn after about a week and sought reconsideration of an earlier denial of disability recurrence. The Board held that OWCP needed to resolve the recurrence issue before the overpayment’s existence and amount could be decided. It set aside the overpayment and hearing decisions and returned the case for further action.

Decision snapshot

• Authority: 20 C.F.R. § 501.2(c)(2).
• Outcome: April 9 and August 25, 2015 decisions set aside; overpayment issue remanded.
• Key point: The pending recurrence claim could change whether and how much G.L. was overpaid.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.L., Appellant
)
)
and ) Docket No. 15-1939
) Issued: April 18, 2016
U.S. POSTAL SERVICE, BROOKLYN
)
PROCESSING & DISTRIBUTION CENTER,
)
Brooklyn, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
James D. Muirhead, Esq., for the Appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

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

On September 28, 2015 appellant, through counsel, filed a timely appeal from an April 9, 2015 merit decision and an August 25 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Board docketed the appeal as No. 15-1939. The Board has duly considered the matter and finds that this case is not in posture for decision.

By letter dated May 9, 2002, OWCP accepted that on January 12, 2002 appellant, then a 55-year-old mail processor/clerk, sustained a concussion, contusion of the head, neck sprain, and left shoulder sprain as a result of being hit on the head by the top metal bar of a post con. Appellant was paid compensation on the daily rolls until she returned to work on April 17, 2002 in a limited-duty part-time position. She continued to be paid partial wage-loss compensation.

Appellant claimed a recurrence of disability (Form CA-2a) on May 11, 2010 which was accepted by decision dated June 4, 2010 and she was paid wage-loss compensation. She accepted a part-time modified-duty assignment on August 26, 2013. OWCP, however, continued to pay compensation for total disability through October 19, 2013.

On June 19, 2014 appellant again filed a recurrence of disability claim (Form CA-2a) alleging that her limited-duty position had been withdrawn on August 29, 2013. In an October 1, 2014 decision, OWCP denied appellant’s claim for recurrence of disability, finding that the evidence was insufficient to establish the withdrawal of her limited-duty position.

By letter dated February 25, 2015, OWCP advised appellant of a preliminary determination that she had received an overpayment of $5,289.43 from August 26 to October 19, 2013 as she was paid disability compensation after her return to “full-time” work on August 26, 2013. It stated that she received compensation in the amount of $2,596.63 for the period August 25 to September 21, 2013 and $2,692.80 for the period September 22 to October 19, 2013, which yielded an overpayment of $5,289.43. It found appellant at fault in its creation because she was aware or should have reasonably been aware that she accepted payments for total disability after returning to work. OWCP afforded her 30 days to submit financial information and to request either a telephone conference, decision on the written evidence, or a prerecoupment hearing.

Appellant did not respond to the preliminary overpayment determination. On April 9, 2015 OWCP finalized the determination that she was at fault in the creation of the $5,289.43 overpayment because she knew or reasonably should have known that she was not entitled to compensation after returning to work. It noted that appellant had not responded to the preliminary determination. OWCP requested that she repay the full amount of the overpayment within 30 days.

In letters received by OWCP on July 30, 2015, appellant, through counsel, requested a prerecoupment hearing on the overpayment decision, requested reconsideration of the October 1, 2014 OWCP decision denying appellant’s claim for recurrence, and requested a copy of the record. Counsel noted that on August 26, 2013 appellant had only returned to part-time work, four hours a day and that she worked only for about one week before the position was withdrawn. He asserted that the amount of the overpayment would have been nominal as it should have only included four or five days of part-time work.

In an August 26, 2015 decision, OWCP’s Branch of Hearings and Review denied appellant’s request for a prerecoupment hearing as untimely. It found that she had not requested a hearing within 30 days after the February 25, 2015 preliminary overpayment determination, and that a final overpayment decision was not subject to the hearing provision of 5 U.S.C.
§ 8124(b).

The Board finds that the issues concerning the overpayment decision are not in posture for decision. Appellant’s claim that she sustained a recurrence of disability, commencing August 29, 2013, bears on the issue of fact and amount of overpayment. On July 30, 2015 appellant requested reconsideration of the October 1, 2014 decision denying her recurrence claim. OWCP had not issued a decision with regard to that request for reconsideration when appellant filed this appeal.

A final decision on the recurrence claim is critical to any decision on fact or amount of overpayment in this case. At the time of the filing of this appeal, the issue on appeal is not ripe for decision.1 Accordingly, this case will be remanded for further development.

1
20 C.F.R. § 501.2(c)(2).

2
 IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ Compensation Programs dated August 25 and April 9, 2015 are set aside and the case is remanded for further action consistent with this order.

Issued: April 18, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3