United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

New Orleans, LA, Employer 

__________________________________________ 

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Docket No. 17-0046 

Issued: June 9, 2017 

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 October 14, 2016 appellant filed a timely appeal from a September 9, 2016 nonmerit 

decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days 

elapsed from OWCP’s last merit decision, dated May 4, 2015, to the filing of this appeal, 

pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board lacks jurisdiction over the merits of the claim.2

ISSUE 

The issue is whether OWCP properly denied appellant’s request for a prerecoupment 

hearing. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, by order dated April 19, 2017, the Board denied the request as 

appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case as 

submitted on the record. Order Denying Request for Oral Argument, Docket No. 17-0046 (issued April 19, 2017). 
2

FACTUAL HISTORY 

On November 2, 2007 appellant, then a 39-year-old part-time flexible mail carrier, 

injured his left ankle when he stepped in a hole while delivering mail. OWCP accepted his 

traumatic injury claim (Form CA-1) for left ankle sprain. Appellant stopped work on 

November 2, 2007 and received continuation of pay until he resumed work on 

November 28, 2007. He continued to work in a limited-duty capacity for several years following 

his November 2, 2007 employment injury. 

In September 2014, OWCP authorized left ankle surgery. Appellant stopped work on 

October 17, 2014 and underwent surgery on October 21, 2014, which included repair of a 

partially torn peroneal retinaculum and bone fragment excision of the left talus. He received 

disability compensation on the daily rolls beginning October 17, 2014 and on the periodic rolls 

beginning November 16, 2014. 

In November 2014, appellant began participating with a field nurse in an OWCPsponsored nurse intervention program designed to return him to work. In a December 20, 2014 

evaluation report, the field nurse indicated that appellant advised her during a December 3, 2014 

in-person interview at his home in Louisiana that he was taking a supervisory job with the 

employing establishment in Dallas, Texas, but she noted that he “did not provide [a] location.” 

Appellant returned to full-time work, effective December 13, 2014, as a supervisor for 

the employing establishment in Dallas.3

OWCP continued to pay appellant wage-loss compensation for temporary total disability 

through February 7, 2015. 

In an April 2, 2015 notice, OWCP advised appellant of its preliminary determination that 

he received an overpayment of compensation in the amount of $6,772.93 for the period 

December 13, 2014 to February 7, 2015 because he returned to full-time work on December 13, 

2014, but continued to receive total disability compensation. It also made a preliminary 

determination that he was at fault in the creation of the overpayment because he had accepted 

payments that he knew or reasonably should have known was incorrect. OWCP advised 

appellant that he could submit evidence challenging the fact of the overpayment, amount, or fault 

finding, and could request waiver of repayment of the overpayment. 

In an Overpayment Action Request form accompanying its April 2, 2015 notice, OWCP 

informed appellant that he could submit additional evidence in writing at a telephone conference 

with OWCP’s district office or at a prerecoupment hearing before a representative of OWCP’s 

Branch of Hearings and Review, but that a telephone conference or prerecoupment hearing must 

be requested within 30 days of the date of its April 2, 2015 notice.4

 It requested that appellant 

 3

 Appellant’s official return-to-work date was December 13, 2014, but he took sick leave from December 13 

to 27, 2014, and appeared in person for the first time at his new job on December 28, 2014. 

4

 The Overpayment Action Request form included the particular address where the signed, written request was to 

be mailed. 
3

complete and return the enclosed Overpayment Recovery Questionnaire (Form OWCP-20) 

within 30 days even if he was not requesting waiver of the overpayment. 

Appellant did not return the Overpayment Recovery Questionnaire or Overpayment 

Action Request form or otherwise request a telephone conference or prerecoupment hearing 

within 30 days of OWCP’s April 2, 2015 notice. 

In a May 4, 2015 decision, OWCP finalized an overpayment of compensation in the 

amount of $6,772.93. It also found that appellant was at fault in the creation of the overpayment, 

thereby precluding waiver of recovery of the overpayment. 

OWCP sent both the April 2, 2015 preliminary determination and the May 4, 2015 final 

overpayment decision to appellant’s address in New Orleans, LA. 

On August 17, 2016 OWCP received an Overpayment Recovery Questionnaire and an 

Overpayment Action Request form that appellant had completed on August 12, 2016. Appellant 

checked a box on the Overpayment Action Request form requesting a prerecoupment hearing 

before a representative of OWCP’s Branch of Hearings and Review. On the Overpayment 

Action Request form and in a separate statement, he indicated that he had not received OWCP’s 

April 2, 2015 notice as it was sent to his former address in Louisiana, rather than to his address 

in Texas. Appellant asserted that he had advised an OWCP nurse that he moved from Louisiana 

to Texas. He indicated that he first learned that OWCP had declared an overpayment when he 

spoke to an OWCP official in June 2016. 

In a September 9, 2016 decision, OWCP’s Branch of Hearings and Review denied 

appellant’s request for an oral hearing. It noted that on April 2, 2015 OWCP made a preliminary 

determination that he received a $6,772.93 overpayment for which he was at fault and allowed 

him 30 days to request a telephone conference with OWCP’s district office or a prerecoupment 

hearing before a representative of OWCP’s Branch of Hearings and Review. OWCP’s Branch of 

Hearings and Review indicated that appellant did not submit a hearing request in connection with 

the preliminary overpayment determination within the allotted period and noted that OWCP 

issued a final overpayment decision on May 4, 2015. It indicated that OWCP’s May 4, 2015 

final overpayment decision was not subject to the provisions of 5 U.S.C. § 8124(b) regarding 

hearings. 

LEGAL PRECEDENT 

In response to a preliminary notice of overpayment, an individual may present evidence 

to OWCP in writing or at a prerecoupment hearing. The evidence must be presented or the 

hearing request received within 30 days of the date of the written notice of overpayment. Failure 

to request the hearing within this 30-day time period shall constitute a waiver of that right.5

 5

 20 C.F.R. § 10.432. See also D.P., Docket No. 13-630 (issued August 2, 2013); M.B., Docket No. 12-19 (issued 

October 5, 2012). 
4

The only review of a final decision concerning an overpayment is an appeal to the Board. 

The provisions of 5 U.S.C. § 8124(b) regarding hearings do not apply to a final overpayment 

decision.6

ANALYSIS 

 The Overpayment Action Request form that accompanied the April 2, 2015 preliminary 

overpayment determination was specific as to the 30-day time limitation and the method for 

requesting a prerecoupment hearing, including the particular address where the signed, written 

request was to be mailed. Appellant submitted an Overpayment Action Request form dated and 

postmarked August 12, 2016 and received by OWCP on August 17, 2016.7

 As noted above, 

OWCP’s implementing regulations specify that a prerecoupment hearing must be requested 

within 30 days of the date of the written notice of overpayment.8

Appellant asserted that he had not received OWCP’s April 2, 2015 notice timely. He had 

advised his field nurse that he moved from Louisiana to Texas in December 2014 to work in a 

new position for the employing establishment. Absent evidence to the contrary, a letter properly 

addressed and mailed in the ordinary course of business is presumed to have been received. This 

is known as the mailbox rule.9

 OWCP’s sent its April 2, 2015 notice to appellant’s then address 

of record in Louisiana and it is presumed to have been received by him absent any notice of 

nondelivery. Appellant has not submitted evidence to rebut this presumption. There is no 

evidence of nondelivery of the April 2, 2015 notice, such as a returned mail notice, and appellant 

did not provide a written statement to OWCP advising it of a change of address prior to OWCP’s 

issuance of its April 2, 2015 notice.10

 As the Overpayment Action Request form was not received within 30 days of the April 2, 

2015 preliminary determination, OWCP properly issued its May 4, 2015 final overpayment 

determination. Consequently, the September 9, 2016 decision denying appellant’s request for a 

hearing was proper under the law and facts of this case. The Board further notes that appellant’s 

August 2016 hearing request cannot be considered as a request for a hearing in connection with 

OWCP’s May 4, 2015 final overpayment decision because the provisions of 5 U.S.C. § 8124(b) 

regarding hearings do not apply to a final overpayment decision.11

 6

 20 C.F.R. § 10.440(b); see also J.F., Docket No. 14-1412 (issued November 6, 2014); Philip G. Feland, 48 

ECAB 85 (1997). 

7

 The 30th day after April 2, 2015 was May 2, 2015. 

8 See supra note 6. 

9 See James A. Gray, 54 ECAB 277 (2002). 

10 See generally J.R., Docket No. 13-1946 (issued January 7, 2014). In J.R., the Board found that OWCP 

properly determined that the claimant failed to establish nonreceipt of a notice which OWCP sent him because he 

had not advised OWCP of a change of address in writing prior to the time OWCP sent him the notice. Appellant 

had asserted that he advised his vocational rehabilitation counselor of a change of address in connection with his 

participation in an OWCP-sponsored vocational rehabilitation program. 

11 See supra note 7.
5

CONCLUSION 

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

hearing. 

ORDER 

IT IS HEREBY ORDERED THAT the September 9, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 9, 2017 

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