United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.R., Appellant

and

GENERAL SERVICES ADMINISTRATION, 

NCR PUBLIC BUILDING SERVICE, 

Kansas City, MO, Employer

__________________________________________

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Docket No. 18-1117

Issued: June 20, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On May 10, 2018 appellant filed an appeal from a February 6, 2018 merit decision of the 

Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards

assigned Docket No. 18-1117. 

By letter dated May 23, 2017, appellant advised OWCP of a change of address. 

By notice dated September 21, 2017, OWCP made a preliminary determination that an 

overpayment of $46,152.84 was created for the period from April 1, 2011 through March 4, 2017 

because appellant was paid dual compensation under the Federal Employees’ Compensation Act1

(FECA) and from the Social Security Administration (SSA) without an appropriate offset creating 

a prohibited dual benefit. It found that he was with fault in the creation of the overpayment because 

he accepted a payment that he knew or reasonably should have known was incorrect. OWCP

informed him of his review rights and instructed him to complete an enclosed overpayment 

recovery questionnaire (Form OWCP-20) and submit supporting documentation within 30 days. 

 

1 5 U.S.C. § 8101 et seq.
2

The proposed notice was sent to appellant’s former address and not to the updated address provided 

on May 23, 2017. 

On October 11, 2017 the preliminary overpayment determination was returned to OWCP 

by the U.S. Postal Service, marked as “vacant”, “unable to forward,” and “return to sender.”

On November 6, 2017 OWCP reissued the preliminary September 21, 2017 overpayment 

decision and mailed the notice to appellant’s current address of record.

Although properly addressed, based on the information provided by appellant, the U.S. 

Postal Service returned OWCP’s November 6, 2017 decision as undeliverable.

2

 It noted on the 

envelope: return to sender, not deliverable as addressed, unable to forward. OWCP received the 

undelivered document on November 20, 2017.

By decision dated February 6, 2018, OWCP finalized its preliminary determination finding 

that an overpayment of $46,152.84 was created for the period from April 1, 2011 through March 4, 

2017 because appellant was paid dual compensation under FECA and SSA without an appropriate 

offset. It found that appellant was at fault in the creation of the overpayment and failed to respond 

to its preliminary notice. OWCP further determined that the overpayment would be collected by 

deducting $300.00 monthly from his continuing compensation benefits.

OWCP’s procedures require that it provide written notice informing the individual of the 

existence and amount of the overpayment before seeking recovery or adjusting benefits.3 It must 

additionally advise the individual whether he is at fault in the creation of the overpayment,4 his 

right to challenge the fact or amount of the overpayment, his right to contest the preliminary 

finding of fault in the creation of the overpayment and, if applicable, his right to request a waiver 

of recovery of the overpayment.

5

 OWCP must provide a preliminary finding of overpayment

within 30 days that clearly identifies the reason the overpayment occurred and the basis for any 

fault finding.6

On November 6, 2017 OWCP mailed appellant a properly addressed notice of preliminary 

overpayment determination. The mailbox rule provides that proper and timely mailing of a 

document in the ordinary course of business raises a rebuttable presumption of receipt by the 

addressee.7 As a rebuttable presumption, receipt will not be presumed, however, when there is 

 

2 C.C., Docket No. 14-0745 (issued July 29, 2014).

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

(June 2009).

7 M.C., Docket No. 12-1778 (issued April 12, 2013); J.M., Docket No. 12-0543 (issued March 12, 2013).
3

evidence of nondelivery, and the presumption may also be rebutted by other evidence that supports 

that the addressee did not receive the correspondence.8

The record in this case contains direct evidence of nondelivery of the November 6, 2017 

preliminary overpayment determination.9 Although properly addressed to appellant’s last known 

address, the U.S. Postal Service returned the notice to OWCP as undeliverable and unable to 

forward.

10

 OWCP received the nondelivered preliminary overpayment determination on 

November 20, 2017. Despite receiving the notice as undeliverable, it made no further attempt to 

reissue the preliminary determination. The Board finds that the returned envelope constitutes 

evidence of nondelivery and rebuts the presumption of receipt.11 Because appellant had not 

received the November 6, 2017 preliminary overpayment determination, he was not afforded an 

opportunity to challenge the fact and amount of overpayment and to request a waiver of recovery 

of the overpayment.12 

As OWCP did not comply with the procedural rights afforded to appellant under its 

regulations, the Board finds that it improperly issued its final overpayment decision without proper 

notice.13 Consequently, the February 6, 2018 decision is hereby set aside.

14

 Accordingly,

 

8

Id.

9

J.B., Docket No. 17-1164 (issued September 11, 2017).

10 K.N., Docket No. 16-1412 (issued December 20, 2016).

11 See M.U., Docket No. 09-0526 (issued September 14, 2009).

12 Supra note 9.

13 L.G., Docket No. 17-0004 (issued April 17, 2017).

14 20 C.F.R. §§ 10.431, 10.432; see also K.H., Docket No. 11-0603 (issued September 27, 2011); K.G., Docket No. 

08-2135 (issued April 16, 2009).
4

IT IS HEREBY ORDERED THAT the February 6, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further proceedings 

consistent with this order of the Board.

Issued: June 20, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board