United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Grand Rapids, MI, Employer 

__________________________________________ 

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Docket No. 16-0763 

Issued: July 17, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

On May 7, 2016 appellant filed a timely appeal from a January 4, 2016 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed as No. 

16-0763. 

The Board has reviewed the record and finds that this case is not in posture for decision 

and must be remanded to OWCP. 

OWCP found in a decision dated March 5, 2015 that appellant forfeited his compensation 

benefits from June 27, 2008 to July 1, 2011 under 5 U.S.C. Section 8106(b) because he 

knowingly failed to report his employment activities or earnings on Form EN1032s dated 

June 17, 2009, June 23, 2010, and July 1, 2011. On March 25, 2015 OWCP received appellant’s 

request for a telephone hearing before an OWCP hearing representative regarding the March 5, 

2015 forfeiture decision. 

OWCP issued a preliminary determination on September 30, 2015 that an overpayment 

of compensation in the amount of $107,680.56 was created for the period June 27, 2008 to 

July 1, 2011. The basis for the overpayment was the finding of forfeiture in OWCP’s March 5, 

2015 decision that appellant had failed to report his employment earnings from self-employment 

from June 27, 2008 to July 1, 2011. 
2

On October 1, 2015 OWCP issued an amended forfeiture decision. By decision dated 

January 4, 2016, OWCP finalized the preliminary determination of overpayment in the amount 

of $107,680.56 for the period June 27, 2008 to July 1, 2011 and found that appellant was at fault 

in the creation of the overpayment. 

The Board has found that it must first determine whether an overpayment occurred by 

examining the underlying decision of OWCP on which the overpayment was based.1

 

Accordingly, in order to determine whether an overpayment of compensation occurred in this 

case, the Board must initially determine whether OWCP properly determined that appellant 

forfeited his right to monetary compensation from June 27, 2008 to July 1, 2011 under 5 U.S.C. 

§ 8106(b) because he knowingly failed to report his employment activities or earnings.2 

The Board notes that following OWCP’s March 5, 2015 forfeiture decision, appellant 

requested a hearing. This request was received by OWCP on March 25, 2015. A review of the 

record reveals, however, that OWCP failed to grant or address appellant’s timely request for a 

hearing of OWCP’s March 5, 2015 forfeiture decision. OWCP issued the September 30, 2015 

preliminary notice of overpayment without consideration of appellant’s request for hearing. 

OWCP Procedures provide that a claimant is entitled to a hearing before an OWCP 

hearing representative after a final decision.3 The Board has held that a claimant who submits a 

written request for either an oral hearing or a review of the written record within 30 days of the 

date of the OWCP’s decision is entitled to a hearing or review as a matter of right.4 The Board 

finds that OWCP failed to grant appellant’s March 25, 2015 hearing request, which was received 

by OWCP within 30 days of the March 5, 2015 forfeiture decision. The case will, therefore, be 

remanded for OWCP to properly address and grant appellant’s timely March 25, 2015 hearing 

request. After such further development as OWCP deems necessary, it should issue an 

appropriate decision. 

 

 1 Russell E. Wageneck, 46 ECAB 653 (1995); Samuel J. Russo, 28 ECAB 43 (1976). 

2 See Ronald E. Ogden, 56 ECAB 278 (2005). 

3

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 

2.1601.2.a (October 2011).

4 N.M., Docket No. 12-1257 (issued November 28, 2012); B.T., Docket No. 10-2349 (issued June 15, 2011). 
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IT IS HEREBY ORDERED THAT the January 4, 2016 decision of the Office of 

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

consistent with this order. 

Issued: July 17, 2017 

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