L.S. and U.S. Postal Service, Sudbury Post Office (Board decision, July 9, 2024)

ECAB remand decision. The Board upheld the finding that a postal worker received an overpayment after returning to full-time work, but set aside the stated amount and period. OWCP must reconsider a returned, voided payment and issue a new decision, so the debt amount and fault issue remain 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

A postal letter carrier kept receiving total-disability payments after returning to full-time work. The Board agreed this created an overpayment. It found that OWCP had not addressed a compensation check that the worker returned and voided before the final determination. It set aside the stated $12,365.56 amount and remanded for OWCP to recalculate the debt and issue a new decision. The Board did not decide whether the worker was at fault.

Decision snapshot

• Authority: Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq.; 5 U.S.C. § 8116(a).
• Outcome: Existence of overpayment affirmed; amount and period set aside and remanded.
• Key point: OWCP must account for a returned payment before fixing the overpayment amount.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.S., Appellant
)
)
and ) Docket No. 24-0535
)
Issued: July 9, 2024
U.S. POSTAL SERVICE, POST OFFICE, )
Sudbury, MA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Edmund P. Hurley, Esq., for the appellant1
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 23, 2024 appellant, through counsel, filed a timely appeal from a February 6, 2024 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 3

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 5 U.S.C. § 8101 et seq.
3
The Board notes that, following the February 6, 2024 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.
ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an overpayment of compensation in the amount of $12,365.56 for the period July 31 through November 4, 2023, because he continued to receive wage-loss compensation for total disability after he returned to full-time work; and (2) whether OWCP properly found that appellant was at fault in the creation of the overpayment, thereby precluding waiver of recovery of the overpayment.

FACTUAL HISTORY

On October 29, 2019 appellant, then a 59-year-old letter carrier, filed a traumatic injury claim (Form CA-1) alleging that on that date he fractured his left distal radius when he tripped and fell while in the performance of duty. OWCP accepted his claim for left distal radius fracture and subsequently expanded the acceptance of his claim to include permanent aggravation of advanced osteoarthritis of the scaphotrapezial trapezoidal (STT) joint of the left thumb. It paid appellant wage-loss compensation for disability on the supplemental rolls, effective December 14, 2019, and on the periodic rolls, effective May 6, 2023.4

On September 28, 2023 OWCP received a work status report (Form CA-3) indicating that appellant returned to full-time modified duty with restrictions on July 31, 2023. On October 23, 2023 it received a subsequent Form CA-3 indicating that he returned to full-time regular-duty work with no restrictions on October 2, 2023.

In a November 15, 2023 preliminary overpayment determination, OWCP notified appellant that he had received an overpayment of compensation in the amount of $ 12,365.56 for the period July 31 through November 4, 2023 because he returned to full-time work on July 31, 2023, but continued to receive wage-loss compensation through November 4, 2023. It noted that he was paid $14,277.76 for 112 days of compensation for the period July 16 through November 4, 2023 when he was only entitled to 15 days of compensation. OWCP calculated an overpayment rate of $127.48 per day, which equated to $12,365.56 for 97 days of non-entitlement. It further advised appellant of its preliminary determination that he was at fault in the creation of the overpayment. OWCP requested that he submit a completed overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable repayment method and requested that he submit supporting financial documentation, including copies of income tax returns, bank account statements, bills, canceled checks, pay slips, and any other records to support income and expenses. Additionally, it notified appellant that he could request a final decision based on the written evidence or a prerecoupment hearing within 30 days.

On December 8, 2023 OWCP received a returned compensation check dated November 4, 2023 for the period October 8 through November 4, 2023 in the amount of $3,569.44 with “VOID” written across the front.

4
Appellant stopped work on the date of injury. OWCP initially paid him compensation for total disability.
Following his return to part-time modified-duty work, it paid appellant compensation for loss of wage-earning capacity (LWEC), effective February 15, 2020. He underwent surgery for the accepted conditions on May 4, 2023, and OWCP paid him total temporary disability compensation on the periodic rolls, effective May 6, 2023.

2
By decision dated February 6, 2024, OWCP finalized its preliminary overpayment determination finding that appellant had received an overpayment of compensation in the amount of $12,365.56 for the period July 31 through November 4, 2023 because he returned to full-time work on July 31, 2023, but continued to receive wage-loss compensation for total disability through November 4, 2023. It found that he was at fault in the creation of the overpayment and, thereby, precluded from waiver of recovery of the overpayment. OWCP determined that appellant should forward the full amount of $12,365.56, within 30 days as recovery of the overpayment. It further noted that appellant had not responded to the November 15, 2023 preliminary overpayment determination.

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA 5 provides that the United States shall pay compensation for the disability of an employee resulting from personal injury sustained while in the performance of his or her duty.6 Section 8116(a) of FECA provides that, while an employee is receiving compensation or if he or she has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued, the employee may not receive salary, pay, or remuneration of any type from the United States, except in limited specified instances.7 OWCP’s procedures provide that an overpayment of compensation is created when a claimant returns to full-time work, but continues to receive wage-loss compensation for total disability.8

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant received an overpayment of compensation because he continued to receive wage-loss compensation for total disability after he returned to full-time work.

The record establishes that appellant returned to full-time work at the employing establishment on July 31, 2023. OWCP, however, continued to pay him wage-loss compensation for total disability through November 4, 2023. As noted above, OWCP’s procedures provide that an overpayment of compensation is created when a claimant returns to full-time work, but continues to receive wage-loss compensation for total disability. Once appellant had returned to full time work, he was not entitled to receive total disability benefits and actual earnings for that same time period. 9 Thus, an overpayment of compensation was created in this case. 10

5
5 U.S.C. § 8102(a).
6
Id.
7
Id. at § 8116(a)
8
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter 6.300.4g (September 2020); see also D.L., Docket No. 20-1522 (issued July 27, 2023); L.T., Docket No. 19- 1389 (issued March 27, 2020); K.P., Docket No. 19-1151 (issued March 18, 2020). 9 Id.
10
See T.H., Docket No. 23-0194 (issued July 17, 2023); A.C., Docket No. 22-0118 (issued December 15, 2022).

3
The Board further finds, however, that this case is not in posture for decision with respect to the period and amount of the overpayment.

Following OWCP’s November 15, 2023 preliminary overpayment determination, it received additional evidence. In the case of William A. Couch,11 the Board held that, when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a claimant and received by OWCP before the final decision is issued. While OWCP is not required to list every piece of evidence submitted, the Board notes that the November 4, 2023 returned and voided compensation check was not considered and addressed by OWCP in the February 6, 2024 final overpayment decision.12

It is crucial that OWCP consider and address all evidence received prior to the issuance of its final decision, as Board decisions are final with regard to the subject matter appealed. 13 The Board finds that this case is not in posture for decision as OWCP did not consider and address the above-noted evidence in its February 6, 2024 decision.14

On remand OWCP shall review all of the evidence submitted and determine the proper amount of the overpayment of compensation. It shall then issue a new preliminary overpayment determination, with an overpayment action request form, a Form OWCP-20, and instructions for appellant to provide supporting financial information. Following this, and other such further development as deemed necessary, OWCP shall issue a de novo decision.15

CONCLUSION

The Board finds that OWCP properly determined that appellant received an overpayment of compensation. The Board further finds that the case is not in posture for decision with regard to the period and amount of the overpayment.

11
41 ECAB 548 (1990); see J.R., Docket No. 21-1421 (issued April 20, 2022); see also R.D., Docket No. 17-1818 (issued April 3, 2018).
12
See C.D., Docket No. 20-0168 (issued March 5, 2020).
13
See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, supra note 11.
14
See Order Remanding Case, L.G., Docket No. 23-0637 (issued September 15, 2023).
15
In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

4
ORDER

IT IS HEREBY ORDERED THAT the February 6, 2024 decision of the Office of Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded for further proceedings consistent with this decision of the Board .

Issued: July 9, 2024
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

5