United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

DEPARTMENT OF THE ARMY, ARMY 

DEPOT, New Cumberland, PA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1159 

Issued: October 1, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 21, 2014 appellant, through his attorney, filed a timely appeal from a January 7, 

2014 decision of the Office of Workers’ Compensation Programs (OWCP) that found an 

overpayment of compensation. 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. 

ISSUE 

The issue is whether OWCP properly determined that appellant was not entitled to a 

prerecoupment hearing from a preliminary overpayment finding. 

On appeal appellant’s attorney asserts that appellant timely requested a hearing from an 

August 27, 2013 preliminary overpayment decision and, therefore, OWCP erred in issuing a final 

overpayment decision on October 2, 2013 and denying appellant’s request for a prerecoupment 

hearing on January 7, 2014. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a September 18, 2002 decision, the 

Board affirmed as modified a February 12, 2001 OWCP decision. The Board found that 

appellant was not entitled to reimbursement for travel expenses incurred by his attendants while 

he was on vacation or for reimbursement of repairs to his vehicle or for van rental or for travel 

expenses.

2

 The facts of the previous Board decision are incorporated herein by reference. 

On July 30, 2013 OWCP informed appellant that a bill for landscape maintenance for 

2012, from Black Landscape Contracting, Inc., in the amount of $6,424.96, was paid in full to 

him by its bill payment facility, ACS. It noted that it had no record that landscaping services 

were authorized under the claim, and asked him to provide a copy of the authorization letter 

within 21 days, if one had been sent. 

In correspondence dated August 20, 2013, appellant’s attorney responded that appellant 

did not receive prior authorization for landscape maintenance but that OWCP had previously 

reimbursed him for landscape work. The record contains an invoice dated December 29, 2012 

from Black Landscape Contracting, Inc., for 2012 landscape maintenance at appellant’s 

residence, for the amount of $6,424.96 and an ACS notice that the invoice was paid. 

By letter dated August 27, 2013, OWCP issued a preliminary determination that appellant 

received an overpayment in compensation in the amount of $6,424.96 because he was 

reimbursed in error for landscaping services for the year 2012. Appellant was found at fault in 

the creation of the overpayment as he knew or should have known of the requirement of 

requesting authorization prior to submission of a request for reimbursement. There was no 

evidence to support that the landscaping services were related to the 1985 employment injury. 

He was provided an overpayment action request form and an overpayment questionnaire and was 

given 30 days to respond. The notice was sent to appellant’s address of record and to his 

attorney of record. An overpayment memorandum indicates that appellant would not be entitled 

to reimbursement for landscaping done on his property unless it was previously authorized. 

On September 27, 2013 appellant’s present attorney provided an appointment of 

representation form, signed by appellant on September 27, 2013 to OWCP. The attorney asked 

for a copy of the case record. 

 2

 Docket No. 01-1073 (issued September 18, 2002). On August 5, 1985 appellant, a heavy mobile equipment 

mechanic foreman, sustained a work-related gunshot wound to the right cerebral hemisphere while on official travel. 

The accepted conditions include brain laceration, paralytic syndrome and major depression. The injury resulted in 

triplegia that necessitated wheelchair use. Following rehabilitation, appellant returned to modified duty on 

August 23, 1988 and worked part time for a number of years. He retired on disability on July 10, 1993. On July 29, 

1994 he was granted a schedule award for a total 1,087.3 weeks of compensation, to run from July 24, 1994 to 

May 26, 2015. Appellant also receives disability retirement benefits from the Office of Personnel Management. 

OWCP paid for modification to his home, including an indoor pool for therapy use, modified vans, and additional 

durable medical equipment. It also pays for attendant care. The record indicates that appellant owns rental 

properties and is a co-owner in several businesses. A 2004-05 Office of the Inspector General investigation 

concluded that appellant was having his attendants perform nonhealth-related activities such as landscaping and 

work on his rental properties, and that he ordered items in excess at government expense. In November 2005, 

appellant had a multidisciplinary rehabilitation evaluation which concluded that he needed 24-hour care. His 

attendant care is now furnished by a nursing service. 
3

By letter dated September 30, 2013, OWCP forwarded appellant’s counsel a copy of the 

letter of new representation and asked him to state, in writing, if his firm still represented 

appellant in his FECA claim. 

Appellant did not respond to the preliminary overpayment finding.3

By decision dated October 2, 2013, OWCP finalized the preliminary overpayment 

decision. It found that appellant was at fault in the creation of the overpayment as he knew or 

should have known that he was not entitled to the payment received.4

 Appellant’s counsel was 

provided a copy of the final overpayment decision. 

On October 8, 2013 appellant’s original attorney informed OWCP that he no longer 

represented appellant in connection with his FECA claim. 

In correspondence dated September 27, 2013, received by the Branch of Hearings and 

Review (BHR) on October 17, 2013 and scanned received on October 21, 2013, appellant’s 

present attorney noted that appellant’s file would document that he requested a prerecoupment 

hearing. Counsel also asked that his representation be acknowledged. He forwarded a copy of 

an envelope from his office, addressed to the Branch of Hearings and Review, postmarked 

September 28, 2013, and a copy of the appointment of representative, signed by appellant on 

September 27, 2013. By letter dated October 10, 2013, received by the Branch of Hearings and 

Review on October 17, 2013 and scanned on October 23, 2013, counsel asked that it respond to 

his September 27, 2013 correspondence regarding the preliminary overpayment determination. 

He had “received correspondence from the district office dated October 2, 2013 indicating that 

no appeal had been made of that preliminary decision,” and stated that he was again enclosing a 

copy of appellant’s appeal letter dated September 16, 2013. An overpayment action request was 

attached, signed by appellant on September 16, 2013. A prerecoupment hearing was requested, 

and appellant disagreed that an overpayment had occurred or he was at fault. An envelope, 

addressed to the Branch of Hearings and Review, was attached with a postmark of 

October 11, 2013. 

On October 18, 2013 OWCP notified appellant that it had received his request for an oral 

hearing. A copy was sent to his attorney. On December 27, 2013 counsel inquired about 

scheduling the requested hearing. 

By decision dated January 7, 2014, OWCP denied appellant’s request for a 

prerecoupment hearing. It found that it had not received the request for a prerecoupment hearing 

within 30 days of the August 27, 2013 preliminary overpayment determination. OWCP advised 

 3

 The only evidence of record not mentioned above that was submitted subsequent to the August 27, 2013 

preliminary overpayment letter and the final overpayment decision dated October 2, 2013, consists of telephone 

memoranda and other information regarding appellant’s request for a new van, a copy of correspondence dated 

July 9, 2013 from appellant’s physical therapist, and prescriptions from a physician’s assistant for a cushion and a 

new power wheelchair. 

4

 The overpayment was repaid by withholding total compensation for two periods and deducting partial 

compensation for the third period. 
4

that appellant was issued a final decision on the overpayment of compensation and this decision 

was not subject to the hearing provision found at 5 U.S.C. § 8124(b). 

LEGAL PRECEDENT 

OWCP regulations on the recovery of overpayments provide that before collecting the 

overpayment, it must provide the claimant with written notice of the fact and amount of the 

overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or 

finding of fault and the right to request waiver of the overpayment.5

 The regulations further 

provide that a claimant may request a prerecoupment hearing with respect to an overpayment.6

 

Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right 

to a hearing.7

 The only right to a review of a final overpayment decision is to the Board.8 The 

hearing provisions of 5 U.S.C. § 8124(b) of FECA do not apply to a final overpayment decision.9

It is presumed, in the absence of evidence to the contrary, that a notice mailed to an 

individual in the ordinary course of business was received by that individual. This presumption 

arises when it appears from the record that the notice was properly addressed and duly mailed.10 

The mailbox rule provides that proper and timely mailing of a document raises a rebuttable 

presumption of receipt by the addressee. The Board has applied the mailbox rule to claimants 

under FECA and to OWCP when it is established that the mailing was in the ordinary course of 

the sender’s business practices. It serves as a tool for determining in the face of inconclusive 

evidence, whether or not receipt has actually been accomplished. It is to facilitate the fact finder 

in determining whether receipt of a document has occurred. However, as a rebuttable 

presumption, receipt will not be assumed when there is evidence of nondelivery.11

ANALYSIS 

The Board finds that OWCP properly denied appellant’s request for a prerecoupment 

hearing as untimely. OWCP notified him of its preliminary determination that he received an 

overpayment of compensation in a letter dated August 27, 2013. It informed appellant that he 

could request a telephone conference, a prerecoupment hearing or a final decision based on the 

written evidence within 30 days of the date of the letter. Appellant did not respond to the 

August 27, 2013 preliminary determination within 30 days. On October 2, 2013 OWCP 

finalized the overpayment determination and notified him that his only appeal right was with the 

Board. Although the record contains an overpayment action request signed by appellant and 

 5

 20 C.F.R. § 10.431 (2011). 

6 Id. at § 10.432. 

7 Id. 

8

 20 C.F.R. § 10.440(b); see H.K., Docket No. 11-543 (issued November 25, 2011). 

9 Id. 

10 Cresenciano Martinez, 51 ECAB 322 (2000). 

11 M.U., Docket No. 09-526 (issued September 14, 2009). 
5

dated September 16, 2013, this was not received by the Branch of Hearings and Review until 

October 17, 2013. The overpayment action request is specific as to the 30-day time limitation 

and the method for requesting a prerecoupment hearing. It was not received until October 17, 

2013, more than 30 days after OWCP’s notification of overpayment on August 27, 2013. The 

30th day following issuance of the August 27, 2013 preliminary overpayment determination was 

September 26, 2013. 

In regard to the argument on appeal that the mailbox rule is applicable, counsel did not 

begin representing appellant until September 27, 2013, more than 30 days after the preliminary 

overpayment determination on August 27, 2013. He forwarded a copy of correspondence from 

his office dated September 27, 2013 in which he noted that a prerecoupment hearing had been 

requested. This, too, was not received by the Branch of Hearings and Review until 

October 21, 2013. Counsel also forwarded a copy of an envelope from his office with a 

postmark of September 28, 2013. The request for a prerecoupment hearing dated September 27, 

2013, postmarked September 28, 2013 and mailed within the ordinary course of business by the 

attorney, was untimely. 

As provided in OWCP regulations, the request for a prerecoupment hearing was untimely 

and appellant waived his right to a prerecoupment hearing.12 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s request for a prerecoupment 

hearing as untimely. 

 12 20 C.F.R. § 10.432. The Board also notes that appellant did not timely file an appeal with the Board of the 

final overpayment decision. For final adverse OWCP decisions issued on or after November 19, 2008, a claimant 

has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(3) (2009); R.C., Docket No. 10-2371 (issued 

July 14, 2011). 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 7, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 1, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board