May 9, 2016

In the Matter of the Debt Collection Act Petition

PEDRO P. GONZALEZ v. UNITED STATES POSTAL SERVICE

P.S. Docket No. DCA 15-271

APPEARANCE FOR PETITIONER:
Pedro Gonzalez

APPEARANCE FOR RESPONDENT:
Andrew Potawsky
Labor Relations Specialist

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982 

Petitioner, Pedro Gonzalez, challenges a $1,712 debt assessment by Respondent, United States Postal Service, for collection of continuation of pay (COP) for which the Postal Service asserts he was not entitled.  I conducted a hearing on March 31, 2016, and I rule in favor of Mr. Gonzalez.

FINDINGS OF FACT 

1. During the relevant time, the Postal Service employed Mr. Gonzalez as a letter carrier in the Buena Vista Station, in Miami, Florida (Tr. 14).
2. On November 12, 2014, Mr. Gonzalez was injured while performing his postal duties.  He received treatment in a hospital emergency room that day.  (Resp. Exh. 3; Tr. 64). 
3. On November 14, 2014, Mr. Gonzalez was examined by a physician specializing in the type of injury he sustained.  The physician concluded that Mr. Gonzalez should not return to work.  The resulting medical documentation, Duty Status Report - Form CA-17, indicated that Mr. Gonzalez should remain out of work until November 21, 2014, which was the date of his next appointment with that physician.  Mr. Gonzalez provided this documentation to his supervisor, and the Postal Service approved COP.  (Resp. Exh. 1; Tr. 40, 64).
4. On November 21, 2014, Mr. Gonzalez was examined by the same physician, who extended the period of inability to return to work for another week.  At the end of that period, Mr. Gonzalez again was examined by the physician, who extended the period to December 5, 2014.  Mr. Gonzalez provided medical documentation from his physician to his supervisor showing the extensions of the disability period.  However, the documentation is missing from his personnel file and Mr. Gonzalez did not retain a copy.  (Tr. 64-65, 69, 80-81).  The Postal Service paid Mr. Gonzalez COP through December 5, 2014.  Throughout the entire COP period, Mr. Gonzalez was unable to resume his postal duties due to his on-the-job injury.  (Tr. 22-23, 48, 82).
5. On November 26, 2014, the Department of Labor’s Office of Workers Compensation Program (OWCP) approved Mr. Gonzalez’ workplace injury compensation claim (Resp. Exh. 2).
6. On July 31, 2015, the Postal Service issued Mr. Gonzalez a Letter of Demand and on September 11, 2015, issued a Notice of Involuntary Administrative Salary Offsets assessing $1,712 for recovery of improperly paid COP.  The Postal Service sought recovery for the period for which it believed Mr. Gonzalez had been cleared to return to work but had received COP – November 22, 2014, through December 5, 2014.  (Pet. Exh. 1; Resp. Exh. 4; Tr. 15, 21-23, 33).
7. On September 30, 2015, Mr. Gonzalez transmitted the Debt Collection Act Petition which began this case.  Thereafter, the Postal Service continued collection activity through at least January, 2016, and collected most, if not all of the assessed debt (Petition; Resp. Exh. 4; Pet. Exhs. 1, 4-5; Tr. 70-71, 75, 86-87).

DECISION 

To recover in this Debt Collection Act case, the Postal Service must prove that it paid COP, the amount of those payments, and that Mr. Gonzalez was not entitled to the COP payments.  See Moss v. United States Postal Service, DCA 15-220 (November 13, 2015). 

The Postal Service contends that Mr. Gonzalez was entitled to COP only between November 12, 2014 and November 21, 2014 because the medical documentation in its records covers only that period, and it seeks to recover COP paid after November 21, 2014 due to lack of documentation.

Mr. Gonzalez contends that he submitted the required documentation to his supervisor covering November 22, 2014 through December 5, 2014.  However, the medical documentation for the disputed period is not in Mr. Gonzalez’ personnel file, and Mr. Gonzalez did not retain a copy.  (Finding 4). 

To remain eligible to receive COP during the disputed period, Mr. Gonzalez was responsible to submit medical evidence to substantiate the period of his disability (Employee and Labor Relations Manual (ELM) §§ 542.23, 545.724; Tr. 22-23, 26-27).  Conversely, the Postal Service would be entitled to stop payment of COP if it did not receive medical evidence supporting disability due to a work-related injury.  See ELM § 545.741(a).  The outcome of this case therefore, depends on my determination whether Mr. Gonzalez provided the required medical evidence to the Postal Service.  As explained below, I find Mr. Gonzalez’ version of events more believable.

Mr. Gonzalez specifically recalled providing the missing medical documentation to his supervisor and he had a strong motivation to have done so (Tr. 41-42, 53-54, 81).  He credibly testified that his medical condition did not allow him to return to work during the disputed period, and that he left his house during that time only for medical care (Finding 4; Tr. 82).  While Mr. Gonzalez recognizes that he should have retained copies of the medical documentation, I am persuaded that his explanation is true – he trusted his supervisor to handle the paperwork properly at a time that he was focusing on his recovery (Tr. 65, 70, 81-82). 

Mr. Gonzalez was diligent about trying to find the missing documents.  Once the Postal Service raised the lack of documentation months later, Mr. Gonzalez repeatedly requested access to his personnel file to look for the documents (Tr. 60-62, 65, 68-69).  Once permitted access, Mr. Gonzalez discovered that his personnel file was incomplete even with regard to medical documentation that the Postal Service acknowledges it received (Tr. 54 (Resp. Exh. 3 missing from personnel file), 60).  In addition, Mr. Gonzalez returned to the hospital in an unsuccessful effort to obtain a copy of the missing medical documentation, and he explained why the documentation was unavailable from that source (Tr. 80, 85).  I find that Mr. Gonzalez diligently sought the missing documents from the Postal Service and from his physician which is what I would expect from someone who indeed previously had obtained and submitted that documentation.

Mr. Gonzalez’ testimony also is consistent with the medical documentation which is present in the record.  In the November 14, 2014 Return to Duty Form, Mr. Gonzalez’ physician identified November 21 as the last day of his disability, but November 21 also was the date of Mr. Gonzalez’ next medical examination (Finding 3).  I find it inherently plausible that the physician identified the next scheduled medical examination on the form with the expectation of re-evaluating Mr. Gonzalez’ suitability to return to work at that time.  Given Mr. Gonzalez’ description of his physical condition, I find it similarly likely that following that re-evaluation, the physician extended the disability period (Finding 4).

Overall, based in part on my assessment of his demeanor during the hearing, I find Mr. Gonzalez’ testimony to be credible.  While I do not believe that the Postal Service’s witnesses were deceptive, their testimony showed little recollection of the material facts and showed a failure properly to maintain records (Tr. 54-55, 59-61).

Based on the record before me and my assessment of the credibility of the evidence, I find the version of events described by Mr. Gonzalez as more likely than not what actually occurred.  I am convinced that Mr. Gonzalez was unable to return to work between November 22, 2014, and December 5, 2014, due to the on-the-job injury he sustained and which OWCP approved.  I also find that Mr. Gonzalez obtained medical documentation to that effect and provided it to his supervisor.  (Findings 4-5).  Therefore, despite the medical documentation subsequently having been lost, I conclude that Mr. Gonzalez was entitled to COP for that period.

Despite this Debt Collection Act case having been docketed on October 5, 2015, the Postal Service did not honor the automatic stay of collection required by law.  See 5 U.S.C. § 5514(a)(2); 39 C.F.R. § 961.5.  Rather, the Postal Service offset the debt it assessed from Mr. Gonzalez’ salary (Finding 7).  The Postal Service must refund all money it has offset from Mr. Gonzalez’ salary to satisfy its debt assessment.

CONCLUSION AND ORDER

The Petition is granted. 

The Postal Service is prohibited from collecting the $1,712 assessed debt from Mr. Gonzalez by administrative salary offset.

Within thirty days, the Postal Service must refund the money it prematurely offset from Mr. Gonzalez’ salary in violation of the Debt Collection Act’s automatic stay of collection.

Gary E. Shapiro
Administrative Judge