S.C. and U.S. Postal Service, University Station, Dallas, TX (Board decision, May 3, 2016)

ECAB remand decision. The Board set aside OWCP’s August 10, 2015 decision and remanded for proper notice before OWCP decides whether to waive recovery of the overpayment. Waiver and the proposed recovery rate remained unresolved. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. 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

OWCP deposited $13,319.36 owed to another claimant into S.C.’s bank account. In an earlier appeal, the Board found that S.C. was not at fault for the overpayment and directed OWCP to consider waiver using current financial information. OWCP then requested a financial questionnaire but did not tell S.C. she had 30 days to submit supporting evidence and argument. The Board set aside OWCP’s denial of waiver and remanded for notice of that deadline before a new waiver decision. It found review of the proposed $200 monthly withholding premature.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq.; 20 C.F.R. § 10.431.
• Outcome: August 10, 2015 waiver denial set aside and remanded.
• Key point: OWCP did not give the required 30-day submission notice before deciding waiver.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.C., Appellant
)
)
and ) Docket No. 16-0443
) Issued: May 3, 2016
U.S. POSTAL SERVICE, UNIVERSITY
)
STATION, Dallas, TX, Employer
)
__________ )

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

DECISION AND ORDER

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

JURISDICTION

On January 11, 2016 appellant filed a timely appeal from an August 10, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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.

ISSUES

The issues are: (1) whether OWCP properly denied waiver of a $13,319.36 overpayment of compensation; and (2) whether it properly found that it would recover the overpayment by withholding $200.00 from appellant’s continuing compensation payments.

FACTUAL HISTORY

This case has previously been before the Board. In a decision dated April 13, 2015, the Board affirmed in part and set aside in part a June 19, 2014 decision finding that appellant

1
5 U.S.C. § 8101 et seq. received an overpayment of compensation for which she was at fault.2 The Board affirmed OWCP’s finding that she received an overpayment of $13,319.36 when it electronically transferred compensation owed to another claimant into her bank account. The Board determined, however, that appellant was not at fault in creating the overpayment and remanded the case for OWCP to consider whether she was entitled to waiver of recovery of the overpayment based on current financial information. The facts and circumstances as set forth in the prior decision are incorporated herein by reference.

On June 15, 2015 OWCP requested that appellant submit an overpayment recovery questionnaire (Form OWCP-20) with supporting documentation so that it could evaluate whether she was entitled to waiver of recovery of the overpayment. It did not provide a deadline for submission of the information. OWCP indicated that it was enclosing a blank Form OWCP-20 with its letter.

In a decision dated August 10, 2015, OWCP denied waiver of the $13,319.36 overpayment of compensation. It found that appellant had not responded to its request for current financial information. OWCP determined that it would recover the overpayment by deducting $200.00 from her continuing compensation payments.

On appeal appellant contends that OWCP’s June 15, 2015 letter did not advise her that she only had 30 days to submit the requested information. She asserts that repaying the overpayment would cause severe financial hardship.

LEGAL PRECEDENT -- ISSUE 1

OWCP’s regulations provide that, before seeking to recover an overpayment or adjust benefits, it will advise the individual in writing that the overpayment exists and the amount of the overpayment.3 The written notification must also include a preliminary finding regarding whether the individual was at fault in the creation of the overpayment.4 OWCP must inform the individual of his or her right to challenge the fact or amount of the overpayment, the right to contest the preliminary finding of fault in the creation of the overpayment, if applicable, and the right to request a waiver of recovery of the overpayment.5 OWCP’s procedures provide that a preliminary finding of overpayment must be provided within 30 days and must clearly identify the reason that the overpayment occurred and the basis for any fault finding.6

2
Docket No. 14-1730 (issued April 13, 2015). OWCP accepted that on September 13, 2011 appellant, then a 50- year-old city carrier, sprained her left ankle in the performance of duty. It paid her disability compensation beginning October 29, 2011. 3 20 C.F.R. § 10.431(a).
4
Id. at § 10.431(b).
5
Id. at § 10.431(d).
6
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4(a)(1) (May 2004).

2
 OWCP’s procedures provide, “If the claimant is determined to be without fault, Form CA-2202 must be released (along with an OWCP-20) within 30 days of the date the overpayment is identified.”7 (Emphasis in the original.)

OWCP’s procedures further specify, “Form CA-2202 also informs the claimant of the right to submit additional evidence and argument, if the claimant disagrees with the fact or amount of the overpayment and if the claimant feels the overpayment should be waived. Additional evidence and arguments must be submitted by the claimant within 30 days of the date of the letter.”8

ANALYSIS -- ISSUE 1

On prior appeal, the Board set aside OWCP’s finding that appellant was at fault in the creation of an overpayment of $13,319.36. The Board remanded the case for OWCP to consider waiver of the overpayment after obtaining current financial information.

In a letter dated June 15, 2015, OWCP requested that appellant complete and return an enclosed overpayment recovery questionnaire (Form CA-20) with supporting documentation so that it could consider waiver of the overpayment. It, however, did not inform her that, in accordance with its procedures, she must submit any evidence or argument in support of waiver within 30 days.9 Consequently, as OWCP did not comply with its procedures, the case will be remanded for OWCP to provide appellant with a Form OWCP-20 with notice of the 30-day time limitation prior to determining whether she is entitled to waiver of recovery of the overpayment.

CONCLUSION

The Board finds that the case is not in posture for decision regarding whether OWCP properly denied waiver of the overpayment.10

7
Id.
8
Id. at Chapter 6.200.4(a)(2) (May 2004).
9
Id.
10
In view of the Board’s determination regarding waiver of the overpayment, it is premature to address whether OWCP properly determined that the overpayment should be repaid by withholding $200.00 per month from continuing compensation.

3
 ORDER

IT IS HEREBY ORDERED THAT the August 10, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings consistent with this opinion of the Board.

Issued: May 3, 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

4