United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.R., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 15-1047 

Issued: December 29, 2015 

Appearances: Case Submitted on the Record

Howard L. Graham, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER REMANDING CASE 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On April 10, 2015 appellant, through his representative, filed a timely appeal of a 

January 28, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).1

 

The claim was docketed as No. 15-1047. 

On November 8, 2011 appellant, then a 53-year-old welder, filed an occupational disease 

claim (Form CA-2) alleging that he developed left shoulder tendinopathy, impingement 

syndrome, and partial rotator cuff tear. OWCP accepted his claim for left shoulder rotator cuff 

tear on January 6, 2012. Appellant underwent left shoulder arthroscopic repair on 

March 7, 2012. OWCP entered appellant on the periodic rolls on April 10, 2012. 

On October 16, 2012 and September 10, 2013 appellant completed EN1032 forms and 

indicated that he had not worked within the past 15 months at the employing establishment. He 

further indicated that he had not been self-employed or involved in any business enterprise 

during the previous 15-month period covered by the forms. Appellant indicated that he had not 

 1

 5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 510.2(c) and 501.3. 
2

performed any volunteer work for which any form of monetary or in-kind compensation was 

received. 

In a memorandum of digital versatile disc (DVD) review dated February 25, 2014, 

OWCP indicated that it had received three DVDs as well as an investigative report from the 

employing establishment’s criminal investigation service. These records included two DVDs of 

a video interview with appellant by two investigators which lasted for almost two hours. There 

was also a DVD of 986 records from appellant’s OWCP file.2

On April 10, 2014 OWCP made a preliminary determination that appellant had received 

an overpayment of compensation in the amount of $64,519.57 for the period February 10, 2012 

through August 21, 2013 as he had forfeited his right to compensation benefits for this period. 

Counsel requested a prerecoupment hearing before OWCP’s Branch of Hearings and Review and 

a copy of all the investigative reports. 

By decision dated January 28, 2015, OWCP hearing representative affirmed the findings 

of forfeiture and overpayment in the amount of $64,519.57 for the period February 10, 2012 

through September 10, 2013 as appellant knowingly failed to report employment earnings and 

activities on his EN1032 forms. She stated that she had reviewed the November 15, 2013 DVD 

interview of appellant and found that during this interview appellant admitted to volunteering 

during the period covered by his EN1032 forms. 

The Board has duly considered the matter and finds that the case is not in posture for 

decision. Upon review of the case record submitted by OWCP, the Board finds that the record is 

incomplete because the DVDs containing appellant’s interview with investigators are not in the 

record. OWCP hearing representative relied on these DVDs in reaching the decision that 

appellant had an overpayment of compensation because he had forfeited his right to 

compensation. The Board finds that the case is not in posture for a decision as the record before 

the Board is incomplete and would not permit an informed adjudication. The case must be 

remanded to OWCP to furnish the DVD’s containing appellant’s interview and for further 

reconstruction and assemblage deemed necessary, to be followed by an appropriate de novo

decision. 

 

 2

 By decision dated March 13, 2014, OWCP found that appellant had forfeited his compensation benefits for the 

period February 10, 2012 through September 21, 2013 on the basis that he “knowingly” failed to report employment 

or earnings from Caring Place Adult Family Home LLC (Caring Place). It stated that this decision was based on 

business documents and paperwork for Caring Place which listed appellant as a certified caregiver and staff 

member. OWCP further stated that appellant stated on camera during an interview of November 15, 2013 that he 

was the owner of the residential property for Caring Place and the he performed tasks including cleaning, preparing 

meals, and repairs for six hours a day seven days a week. In a separate letter dated April 10, 2014, it stated that the 

decision dated March 10, 2014 was issued prematurely and was set aside. 
3

IT IS HEREBY ORDERED THAT the January 28, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded to OWCP for further 

proceedings consistent with this order of the Board. 

Issued: December 29, 2015 

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