In the Matter of the Complaint Against: 

 ROBERT L. BAKER,
 P.O. Box 5808,
 at
 Hillside, NJ  07205-5808

 P.S. Docket No. PF-7

 01/24/91

 Grant, Quentin E., Chief Administrative Law Judge

 APPEARANCE FOR POSTAL SERVICE: Stephen E. Alpern, Esq.,
 Howard J. Kaufman, Esq., Office of Labor Law,
 United States Postal Service,
 Washington, DC  20260-1134 

 APPEARANCE FOR RESPONDENT: Robert L. Baker,
 P. O. Box 5808, Hillside, NJ  07205-5808

On June 7, 1990, the Reviewing Official (Associate General Counsel) of the United States Postal Service issued a complaint against Respondent Robert L. Baker under the Program Fraud Civil Remedies Act of 1986 [Act], 31 U.S.C. § 3801-3812 and 39 C.F.R. Parts 273 and 962. The complaint was served on Mr. Baker on August 10, 1990. Mr. Baker failed to file a petition for hearing under the Act within 30 days thereafter as required by 39 C.F.R. $Z962.3. On October 1, 1990, pursuant to 39 C.F.R § 962.4(a), the Reviewing Official transmitted the complaint to the Judicial Officer who has referred it to the undersigned for processing in accordance with 39 C.F.R. § 962.4. Section 962.4(a) provides that the presiding officer shall issue an initial decision based upon the information contained in the complaint if the Respondent has failed to request a hearing within the 30 days allowed under § 962.3.

On October 10, 1990, the Recorder received from Respondent a petition for hearing dated October 4, 1990. This petition was not timely filed. The use of the word "shall" in § 962.4(a) appears to foreclose waiver by the presiding officer of the 30-day filing requirement. Consequently, this initial decision is issued based on the information contained in the complaint and the documents referred to therein.

1. Respondent Robert L. Baker was at the time of the issuance of the complaint served on him herein (June 7, 1990) in a non-pay, non-duty status as a distribution clerk in the Newark, New Jersey Post Office.

2. On November 23, 1975, Mr. Baker, then employed by the U. S. Postal Service at the Newark Main Post Office, completed and filed a Form CA-1 (Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation) alleging that he injured his back while working in the Newark Post Office.

3. Thereafter, Mr. Baker began to receive benefits under the Federal Employee's Compensation Act (FECA) based on total disability resulting from such injury. In order to continue to receive such benefits, he was periodically required to complete and file a Form 1032 (Wage and Income Inquiry). The letter from the Department of Labor transmitting such forms stated that the information requested would be used to determine Mr. Baker's qualification for continued benefits or to determine whether an adjustment in benefits might be warranted. It also contained a warning as to the civil and criminal consequences of furnishing false information. The Form 1032, among other things, required him to state whether he had been employed or self-employed during the prior fifteen months.

4. During 1986 and up to March 1987 Respondent was employed as a salesman for Colony Real Estate. From March 1987 to the date the complaint was filed he was employed by Maple Realty. During the second quarter of 1986, Respondent was employed by the Newark City Board of Education. Respondent was also self-employed during 1986 and 1987 as a partner in Mid-Atlantic Construction and Development Systems, Inc.

5. On April 9, 1987, Respondent submitted a completed Form 1032 and failed to disclose in response to Part A (Employment History) thereof that he was employed during the period covered.

6. On March 8, 1988, Respondent submitted a completed Form 1032 and, again, failed to disclose his employment during the period covered.

7. Respondent in submitting the forms 1032 described in findings 5 and 6 omitting material facts as to his employment which he had a duty to include, knew or should have known that he was thereby making false claims for workers' compensation benefits.

8. From October 21, 1986, the effective date of the Program Fraud Civil Remedies Act of 1986, through April 13, 1988, Respondent received $21,705.39 in FECA benefits, ultimately paid by the Postal Service, as the result of false claims and false statements made in support thereof.

In furnishing information to the Department of Labor for continuation of FECA benefit payments to him, Respondent violated the Program Fraud Civil Remedies Act in that he made two claims which he knew, or should have known, omitted material facts which he had a duty to disclose as to his employment during the period of his claimed disability from October 21, 1986 through April 13, 1988 and were false as a result of such omission. During that period as a result of such claims Petitioner received compensation in the amount of $21,705.39, ultimately paid by the Postal Service.

The Postal Service has requested imposition of a penalty of $5000 for each of the two false claims and an assessment in lieu of damages sustained by the Postal Service in an amount double the amount of the false claims, i.e., $43,410.78. These requests are in accordance with the Act ($S3802(a)(1)). The file discloses no mitigating factors.

Respondent is liable to the Postal Service under 31 U.S.C. $S3802(a)(1) for a civil penalty in the amount of $10,000 plus an assessment of $43,410.78, totaling $53,410.78.