E.H. and Department of Homeland Security, Citizenship & Immigration Services, Los Angeles, CA (Board decision, October 20, 2020)

ECAB final decision. June 15, 2018 denial affirmed as modified. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

E.H., a federal immigration information officer, had received an overpayment determination after collecting FECA wage loss and federal retirement benefits at the same time. She sought OWCP reconsideration of that determination. The Board held that a final overpayment determination can be reviewed by the Board, but cannot be reconsidered by OWCP under the usual FECA rule. It affirmed OWCP’s June 15, 2018 denial while changing the reason for the denial. The underlying overpayment was not reconsidered.

Decision snapshot

• Authority: 20 C.F.R. § 10.440(b), review of final overpayment determinations.
• Outcome: June 15, 2018 denial affirmed as modified.
• Key point: OWCP used the wrong legal basis to reject review of a final overpayment determination.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
E.H., Appellant
)
)
and ) Docket No. 19-0016
) Issued: October 20, 2020
DEPARTMENT OF HOMELAND SECURITY,
)
CITIZENSHIP & IMMIGRATION SERVICES,
)
Los Angeles, CA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On October 2, 2018 appellant, through counsel, filed a timely appeal from a June 15, 2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit decision was a Board decision, dated August 19, 2016, which became final after 30 days of issuance and is not subject to further review.2 As there was no merit decision by OWCP within 180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 2 20 C.F.R. § 501.6(d); see E.H., Docket No. 15-0312 (issued August 19, 2016).
3
5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.4

ISSUE

The issue is whether OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

This case has previously been before the Board.5 The facts and circumstances as set forth in the prior Board decisions are incorporated herein by reference. The relevant facts are set forth below.

On September 27, 1999 appellant, then a 56-year-old information officer, filed a traumatic injury claim (Form CA-1) alleging that on September 24, 1999 she injured her right knee and leg when her foot caught and she tripped on boxes while in the performance of duty. OWCP accepted the claim for right knee and leg sprain. Appellant intermittently received wage-loss compensation on the supplemental and periodic rolls. She received wage-loss compensation on the periodic rolls from August 1, 2010 until January 15, 2011.

By decision dated October 31, 2014, an OWCP hearing representative finalized a preliminary determination that appellant was at fault in the creation of a $17,806.25 overpayment for the period July 31, 2010 through January 15, 2011 because she concurrently received retirement benefits from the Office of Personnel Management (OPM) while receiving FECA benefits without an appropriate offset.

On November 24, 2014 appellant appealed to the Board. By decision dated August 19, 2016, the Board affirmed the October 31, 2014 decision.6

On August 21, 2017 appellant timely requested reconsideration. In the August 21, 2017 reconsideration request, in addition to generally challenging the overpayment finding, he provided a recitation of the factual history of his case.

By decision dated June 15, 2018, OWCP denied appellant’s request finding that the evidence presented was insufficient to warrant merit review.

4
The Board notes that, following the June 15, 2018 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. 5 Docket No. 08-2057 (issued July 1, 2009); Docket No. 15-0312 (issued August 19, 2016).
6
Id.

2

LEGAL PRECEDENT

Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a matter of right.7 OWCP has discretionary authority in this regard and has imposed certain limitations in exercising its authority.8 One such limitation is that the request for reconsideration must be received by OWCP within one year of the date of the decision for which review is sought.9

A timely request for reconsideration, including all supporting documents, must set forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.10 When a timely request for reconsideration does not meet at least one of the above-noted requirements, OWCP will deny the request for reconsideration without reopening the case for a review on the merits.11

Section 10.440(b) of OWCP’s regulations specifically provides that the only review of a final overpayment determination of OWCP is to the Board and that section 8128(a) of FECA does not apply to such a final overpayment determination.12

ANALYSIS

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of her claim.

On August 21, 2017 appellant requested reconsideration of the overpayment determination.
By decision dated June 15, 2018, OWCP denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that appellant had not submitted evidence or argument warranting such merit review of her claim under the standards of 5 U.S.C. § 8128(a) and associated OWCP regulations, including those set forth at 20 C.F.R § 10.606.

Section 10.440(b) of OWCP’s regulations, however, specifically provides that the only review of a final overpayment determination of OWCP is to the Board and that 5 U.S.C. § 8128(a)

7
5 U.S.C. § 8128(a).
8
20 C.F.R. § 10.607.
9
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal Employees Compensation System (iFECS). Id. at Chapter 2.1602.4b. 10 Id. at § 10.606(b)(3); see B.R., Docket No. 19-0372 (issued February 20, 2020).
11
Id. at § 10.608.
12
Id. at § 10.440(b).

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does not apply to such a final overpayment determination.13 The Board finds that OWCP erred in applying 5 U.S.C. § 8128(a) and its associated regulations in its June 15, 2018 decision. Therefore, the Board shall modify OWCP’s June 15, 2018 decision denying appellant’s request for reconsideration of the merits of her claim to reflect that the basis of the denial was not her failure to meet the standards of 5 U.S.C. § 8128(a), but rather because 5 U.S.C. § 8128(a) does not apply to a final overpayment determination of OWCP.14

CONCLUSION

The Board finds that OWCP properly denied appellant’s request for reconsideration of the merits of her claim.

ORDER

IT IS HEREBY ORDERED THAT the June 15, 2018 decision of the Office of Workers’ Compensation Programs is affirmed, as modified.

Issued: October 20, 2020
Washington, DC

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

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

13
See id.
14
See P.J., Docket No. 19-1479 (issued May 8, 2020).

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