United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Medford, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0437

Issued: July 29, 2022

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 19, 2022 appellant filed a timely appeal from an October 15, 2021 nonmerit 

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

elapsed from the last merit decision dated June 28, 2021 to the filing of this appeal, pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

lacks jurisdiction over the merits of this case.

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.
2

ISSUE

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

hearing as untimely filed.

FACTUAL HISTORY

On June 21, 1993 appellant, then a 39-year-old rural carrier, filed an occupational disease 

claim (Form CA-2), alleging that she developed right shoulder acromioclavicular joint 

osteoarthritis, shoulder impingement, rotator cuff tendinitis, and bicipital tendinitis due to factors 

of her federal employment which required repetitive right shoulder and arm motion. She first 

became aware on March 17, 1993 that the diagnosed conditions were caused or aggravated by her 

employment. Appellant stopped work on March 23, 1993. OWCP accepted the claim for right 

shoulder impingement syndrome and right rotator cuff tendinitis. It subsequently expanded

acceptance of the claim to include right shoulder adhesive capsulitis and major depression. OWCP 

paid appellant wage-loss compensation on the supplemental rolls commencing December 7, 1997 

and on the periodic rolls commencing April 20, 2003.

On August 26, 2021 OWCP advised appellant of its preliminary determination that she had 

received an overpayment of compensation in the amount of $18,310.62 for the period May 1, 2020

through July 17, 2021 because she concurrently received Social Security Administration (SSA) 

age-related retirement benefits and FECA wage-loss compensation without appropriate offset. It 

determined that she was without fault in the creation of the overpayment. OWCP requested that 

appellant submit a completed overpayment recovery questionnaire (Form OWCP-20) and 

supporting financial documentation, including copies of income tax returns, bank account 

statements, bills, pay slips, and any other records to support income and expenses. Additionally, 

it provided an overpayment action request form and advised her that, within 30 days of the date of 

the letter, she could request a telephone conference, a final decision based on the written record,

or request a prerecoupment hearing.

On September 16, 2021 OWCP received a completed overpayment recovery questionnaire 

form and an overpayment action request form, both dated September 10, 2021, noting that 

appellant contested the overpayment. Appellant disagreed that the overpayment occurred and 

requested waiver because she was found to be without fault in the creation of the overpayment. 

She stated that she was receiving her deceased husband’s social security benefits. 

By overpayment action request form, dated September 27, 2021, appellant requested a 

prerecoupment hearing.3 

By decision dated October 15, 2021, OWCP’s Branch of Hearings and Review denied 

appellant’s request for a prerecoupment hearing as untimely filed. It found that, because her

request was not received within 30 days of the August 26, 2021 preliminary overpayment 

determination, she was not entitled to a prerecoupment hearing as a matter of right.

3 The case record does not contain an accompanying envelope showing a postmark or other carrier’s date of 

marking. Appellant noted that the form had been faxed to the Branch of Hearings and Review on September 27, 2021. 
3

LEGAL PRECEDENT

OWCP’s regulations provide that a claimant may request a prerecoupment hearing with 

respect to an overpayment.

4

 Failure to request a prerecoupment hearing within 30 days constitutes 

a waiver of the right to a hearing.

5

 In computing a time period, the date of the event from which 

the designated period of time begins to run shall not be included, while the last day of the period 

so computed shall be included unless it is a Saturday, Sunday, or a federal holiday .

6

 The date of 

the request is determined by the postmark or other carrier’s date marking.

7

 The test used in 20 

C.F.R. § 10.616(a) for determining the timeliness of hearing requests should apply to requests for 

prerecoupment hearings. Accordingly, timeliness is determined by the postmark on the envelope, 

if available. Otherwise, the date of the letter itself should be used.

8

 

ANALYSIS

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

hearing as untimely filed.

The timeliness of a request for a prerecoupment hearing is determined by the postmark date 

or other carrier’s marking showing when the request was sent to OWCP.9 OWCP issued its 

preliminary overpayment determination on August 26, 2021. The 30th day from August 26, 2021 

was September 25, 2021. As this fell on a Saturday, appellant had until Monday, September 27, 

2021 to request a prerecoupment hearing.10 As appellant’s request for a prerecoupment hearing 

was dated and received on Monday, September 27, 2021, it was timely filed.11 The Board thus 

finds that OWCP improperly denied appellant’s request for a prerecoupment hearing.

12

4

20 C.F.R. § 10.432;see V.M., Docket No. 21-0914 (issued February 16, 2022); E.G., Docket No. 19-0176 (issued 

February23, 2021); S.O., Docket No. 20-0753 (issued October 28, 2020); E.M., Docket No. 19-0857 (issued 

December 31, 2019); D.H., Docket No. 19-0384 (issued August 12, 2019).

5

Id.

6

See V.M., supra note 4.; B.W., Docket No. 16-1860 (issued May 4, 2017); M.R., Docket No. 11-970 (issued 

August 12, 2011); DonnaA. Christley, 41 ECAB 90 (1989). See also JohnB. Montoya, 43 ECAB 1148 (1992).

7

Supra note 4 at § 10.439, 10.616(a); see A.B., Docket No. 18-1172 (issued January 15, 2019); see also B.W., 

Docket No. 18-1004 (issued October 24, 2018); C.R., Docket No. 15-0525 (issued July 20, 2015).

8

See V.M., supra note 4; J.H., Docket No. 06-1565 (issued February 20, 2007); James B. Moses, 52 ECAB 465 

(2001), citing WilliamJ. Kapfhammer, 42 ECAB 271 (1990); see also Douglas McLean, 42 ECAB 759 (1991).

9

Supra note 7.

10 Supra note 6.

11 Id.

12 See V.M., supra note 4; E.G., supra note 4; E.V., Docket No. 17-1328 (issued December 11, 2017). See also 

R.U., Docket No. 16-0027 (issued March 24, 2017); RonaldE. Morris, Docket No. 05-1553 (issued 

November 23, 2005).
4

On remand, OWCP shall conduct a prerecoupment hearing before a representative of 

OWCP’s Branch of Hearings and Review, to be followed by any necessary further development 

and a de novo decision.

13

CONCLUSION

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

hearing as untimely filed.

ORDER

IT IS HEREBY ORDERED THAT the October 15, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed, and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: July 29, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

13 V.M., supra note 4; Order Remanding Case, N.G., (T.G.), Docket No. 19-1482 (issued September 17, 2020);

C.R., Docket No. 15-0525 (issued July 20, 2015).