United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Akron, OH, Employer

__________________________________________

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Docket No. 17-0953

Issued: December 20, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 30, 2017 appellant, through counsel, filed a timely appeal from a February 28, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

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

Board has jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether appellant forfeited her entitlement to compensation from 

October 24, 2011 to October 14, 2012 as she knowingly failed to report earnings from 

 

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

employment; (2) whether she received an overpayment of $31,600.83 as a result of the forfeiture; 

and (3) whether OWCP properly found that appellant was at fault in the creation of the 

overpayment and thus not entitled to waiver of recovery of the overpayment.

FACTUAL HISTORY

On August 9, 2011 appellant, then a 45-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she injured her head, left shoulder, and neck when a 

shelf fell on her head. OWCP accepted the claim for a head contusion and left shoulder sprain. 

It paid appellant compensation for total disability beginning October 24, 2011 as the employing 

establishment did not have work available with her restrictions.

Appellant underwent a left shoulder acromioplasty and distal claviculectomy on 

April 5, 2012. OWCP paid her compensation on the periodic rolls, effective July 29, 2012. 

On October 14, 2012 appellant signed a Form EN1032 regarding her earnings and 

employment activity for the preceding 15-month period. The form advised that she must report 

all employment for which she received a salary, wages, income, sales commissions, piecework,

or any payment of any kind, and that she must also report self-employment or involvement in 

any business enterprise in the past 15 months. It further informed appellant that fraudulently 

concealing or failing to report income could subject her to criminal prosecution. On the form, 

she marked an “x” rather than responding “yes” or “no” to the questions of whether she worked 

for an employer or was self-employed during the past 15 months. 

In an amended Form EN1032 signed October 25, 2012, appellant indicated that she did 

not work for an employer and was not self-employed or involved in a business enterprise during 

the previous 15-month period. In response to the question on the form that asked whether, if she 

had answered “no” to questions asking whether she was employed or self-employed, she had 

been “unemployed for all periods during the past 15 months,” she responded that she did not 

understand the question.

In a July 31, 2015 report of investigation, the employing establishment’s Office of the 

Inspector General (OIG) advised that appellant certified on an October 2012 Form CA-1032 that 

she was not employed even though she worked as an outside sales agent with Roy’s Stow Travel 

Agency during that period, booking 15 trips and earning around $1,926.00 in commissions. It

advised that she made travel arrangements for 15 trips that left between July 14, 2011 and 

October 14, 2012. OIG also indicated that appellant arranged four trips departing from July 30, 

2012 to October 30, 2013, but that the date she booked the travel was unknown. Records from 

the travel agency indicated that appellant received $56.00 on February 22, 2011, $489.57 on 

September 5, 2011, $845.64 on October 31, 2011, $285.34 on December 12, 2011, and $305.55 

on May 31, 2012. 

A reporting agent and special agent with OIG interviewed T.R., the owner of Roy’s Stow 

Travel Agency, on July 16, 2014. He related that appellant was self-employed and paid on 

commission when she brought business to his company. When appellant booked travel for 

T.R.’s company she received half of any commission. She had an identification number that she 

used to book travel through companies such as Apple Vacations, and was covered by his 
3

insurance in case of a lawsuit. Appellant performed the work at home for about five years and 

stopped work a few years prior to the interview. 

An April 25, 2012 e-mail to Roy’s Stow Travel indicated that $802.58 in commissions 

would be deposited into the company account. Appellant was listed as a reservation contact for 

three commissions with a date of April 12, 2012. 

Travel records compiled by the OIG’s office for 2011 to 2013 showed that on 

September 15, 2012 appellant booked travel for a party with a departure date of 

October 19, 2012. Appellant booked travel for 12 other individuals with departure dates ranging 

from October 31, 2011 to August 15, 2012. 

J.M., an employee of Apple Vacations, provided an e-mail summarizing commissions 

appellant received from 2011 to 2013. Appellant earned $182.40 for a trip that she booked 

departing November 8, 2011 and $132.00 for a trip that she booked departing October 19, 2012. 

The OIG further listed commissions received by appellant from May 1, 2011 through 

August 3, 2013 and an itinerary for an October 2013 trip booked by appellant. It also submitted 

copies of checks to her from the travel agency dated September 9, November 3, and

December 13, 2011, and May 4 and June 4, 2012. An income statement from the travel agency 

provided that appellant made $1,676.55 in commission in the year ending December 31, 2011 

and $395.55 in commission for the year ending December 31, 2012.

By letter dated October 5, 2015, OWCP advised appellant that it had received 

information that she had earnings as a sales agent for the period July 14, 2011 through 

October 14, 2012. It requested that she discuss any work performed during this period.

Appellant, in a response received November 9, 2015, testified that she did not have 

earnings from July 2011 to October 2012 and that any money she received during that time was 

for work performed before that time period.

In a decision dated May 26, 2016, OWCP found that appellant had forfeited her 

compensation from October 24, 2011 to October 14, 2012. It determined that she had knowingly 

omitted earnings from self-employment on the October 14, 2012 Form EN1032. 

On May 26, 2016 OWCP notified appellant of its preliminary determination that she 

received an overpayment of $31,600.83 as she forfeited entitlement to compensation from 

October 24, 2011 to October 14, 2012. It further advised her of its preliminary determination 

that she was at fault in creating the overpayment. OWCP requested that appellant complete the 

enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial 

documents. Additionally, it notified her that, within 30 days of the date of the letter, she could 

request a telephone conference, a final decision based on the written evidence, or a 

prerecoupment hearing. 

On June 6, 2016 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative regarding the May 26, 2016 decision. On June 10, 2016 she 

requested a prerecoupment hearing or teleconference regarding the preliminary overpayment 

determination. 
4

In an overpayment recovery questionnaire dated June 23, 2016, appellant provided her 

monthly income and expenses. She further indicated that she had stocks and bonds.

At a telephone hearing, held on January 23, 2017, appellant related that she worked as a 

travel agent before her August 9, 2011 work injury. She indicated that the commissions she 

received after that date were for work performed prior to her injury. Counsel noted that her 

commissions from September 9, 2011 and May 13, 2012 were not paid until July 29, 2012 and 

predated when she began to receive compensation. He did not challenge the amount of any 

overpayment. Counsel further asserted that OWCP denied appellant due process by failing to 

send him a copy of the Form EN1032 and asking him to verify its accuracy. The hearing 

representative requested that appellant submit additional evidence regarding her expenses, 

including financial documentation.

Appellant submitted receipts for travel departing November 2011, September 17, 2011, 

and April 12, 2012. She also submitted salary information for the period January 23 to 

February 18, 2017. 

By decision dated February 28, 2017, OWCP’s hearing representative affirmed the 

May 26, 2016 forfeiture decision and found that appellant received an overpayment of 

$31,600.83 for the period October 24, 2011 to October 14, 2012 as a result of the forfeiture. She 

noted that the evidence confirmed that she received commissions for travel conducted January 3, 

2011 and October 19, 2012. The hearing representative concluded that appellant received 

unreported earnings during the period of the forfeiture. She found that the fact that the Form 

CA-1032 was not sent to counsel did not absolve her of her responsibility to accurately complete 

the form, noting that she could have consulted counsel if she required assistance. The hearing 

representative further found that appellant was at fault in creating the overpayment and thus not 

entitled to waiver. She found that the entire overpayment was due and payable as she did not 

provide documentation regarding her expenses.

LEGAL PRECEDENT -- ISSUE 1

Section 8106(b) of FECA provides that an employee who “fails to make an affidavit or 

report when required or knowingly omits or understates any part of his or her earnings, forfeits 

his or her right to compensation with respect to any period for which the affidavit or report was 

required.3

The Board has held that it is not enough merely to establish that there were unreported 

earnings or unemployment. Appellant can be subjected to the forfeiture provisions of 5 U.S.C. 

§ 8106(b) only if she “knowingly” failed to report employment or earnings.4 The term 

“knowingly” as defined in OWCP’s implementing regulation, means “with knowledge, 

consciously, willfully, or intentionally.”

5

 

 

3

5 U.S.C. § 8106(b).

4 Barbara L. Kanter, 46 ECAB 165 (1994).

5

20 C.F.R. § 10.5(n).
5

ANALYSIS -- ISSUE 1

OWCP accepted that appellant sustained a head contusion and left shoulder sprain on 

August 9, 2011. It paid her wage-loss compensation beginning October 24, 2011 and placed her 

on the periodic rolls effective July 29, 2012. 

OWCP found that appellant forfeited her entitlement to compensation from October 24, 

2011 to October 14, 2012 because she failed to report earnings from employment on a Form

EN1032 signed on October 25, 2012. On the form, appellant indicated that she did not perform 

any work for an employer and was not self-employed. She listed no earnings from employment 

or self-employment.

On July 31, 2015 an investigator with the employing establishment’s OIG related that 

appellant worked as a sales agent with Roy’s Stow Travel Agency during the period covered by 

the October 2012 EN1032 form, earning approximately $1,926.00 in commissions. It specified 

that she arranged 15 trips that took place from July 14 and October 14, 2012. OIG interviewed 

T.R., the owner of the travel agency, on July 16, 2014. He advised that appellant received a 

commission when she booked travel with his company and that she was self-employed. 

Appellant had worked for about five years, performing the work at home, and had stopped a few 

years earlier. Records from the travel agency indicated that appellant received $56.00 on 

February 22, 2011, $489.57 on September 5, 2011, $845.64 on October 31, 2011, $285.34 on 

December 12, 2011, and $305.55 on May 31, 2012.

On August 5, 2015 the OIG provided a travel arrangement summary indicating that 

appellant booked travel arrangements for a customer on September 15, 2012. It provided other 

dates that she made travel arrangement with booking dates that were unknown or outside the 

period of the forfeiture. The OIG’s office further provided checks showing that appellant 

received commissions from the travel agency during the period October 24, 2011 to 

October 14, 2012. Appellant was thus involved in a business enterprise and had unreported 

earnings during the time period covered by the October 25, 2012 Form EN1032. 

Appellant argued that she received the commissions for work performed prior to her 

August 9, 2011 work injury. The evidence from the OIG, however, provides that she made 

travel arrangements for a client on September 14, 2012, during the period covered by the form.

Furthermore, as noted, she had unreported earnings throughout the period at issue.6

OWCP regulations provide that, if an employee knowingly omits or understates earnings 

or work activity in making a report, she shall forfeit the right to compensation with respect to any 

period for which the report was required.7

Appellant can be subject to the forfeiture provision of section 8106(b) only if she 

“knowingly” failed to report earnings or employment. OWCP has the burden of proof to 

 

6 The Board also notes that it has held that 5 U.S.C. § 8106(b)(2) makes no exception for earnings in concurrent 

dissimilar employment. Earl D. Long, 50 ECAB 464, 467 (1999).

7

20 C.F.R. § 10.529(b); Harold F. Franklin, 57 ECAB 287 (2006).
6

establish that a claimant did, either with knowledge, consciously, willfully, or intentionally, fail 

to report earnings from employment.8 Appellant completed CA-1032 forms which advised her 

that she must report both all employment and all earnings from employment and selfemployment. The form clearly provided that she could be subject to criminal prosecution for 

false or evasive answers or omissions. The factual circumstances of record, including 

appellant’s signing of strongly worded certification clauses on the Form CA-1032, provide 

persuasive evidence that she “knowingly” understated her earnings and employment 

information.9 Appellant misrepresented her earnings and employment activity and, therefore, 

forfeited her right to all compensation for the period October 24, 2011 to October 14, 2012.10

LEGAL PRECEDENT -- ISSUE 2

Under 5 U.S.C. § 8106(b), compensation forfeited under this subsection, if already paid, 

shall be recovered under section 8129 of this title, unless recovery is waived under that section.11

Section 10.529 of OWCP’s implementing regulations provides as follows: 

“(a) If an employee knowingly omits or understates any earnings or work activity 

in making a report, he or she shall forfeit the right to compensation with respect to 

any period for which the report was required. A false or evasive statement, 

omission, concealment or misrepresentation with respect to employment activity 

or earnings in a report may also subject an employee to criminal prosecution. 

“(b) Where the right to compensation is forfeited, OWCP shall recover any 

compensation already paid for the period of forfeiture pursuant to 5 U.S.C. 

[§] 8129 [recovery of overpayments] and other relevant statues.”

12

ANALYSIS -- ISSUE 2

Appellant forfeited her right to compensation for the period October 24, 2011 to 

October 14, 2012. As noted above, OWCP may declare an overpayment of compensation for 

any compensation already paid for the period of a forfeiture of compensation. If a claimant has 

any employment, including self-employment or involvement in a business enterprise, during a 

period covered by a Form CA-1032 which he or she fails to report, a claimant is not entitled to 

compensation for any portion of the period covered by the report, even though he or she may not 

have had earnings during a portion of that period.13 OWCP determined that it paid appellant net 

 

8

20 C.F.R. § 10.5(n).

9

See G.R., Docket No. 15-1047 (issued July 8, 2016).

10 See G.Z., Docket No. 16-0892 (issued May 19, 2017).

11 5 U.S.C. § 8106(b).

12 20 C.F.R. § 10.529; see also G.G., Docket No. 14-1848 (issued August 4, 2016).

13 See Louis P. McKenna, Jr., 46 ECAB 428 (1994).
7

compensation in the amount of $31,600.83 during the period in question and there is no contrary 

evidence. The Board, accordingly, finds that there exists an overpayment of $31,600.83.14

LEGAL PRECEDENT -- ISSUE 3

5 U.S.C. 8129(b) provides: Adjustment or recovery by the United States may not be 

made when incorrect payment has been made to an individual who is without fault and when 

adjustment or recovery would defeat the purpose of FECA or would be against equity and good 

conscience.15 A claimant who is at fault in creating the overpayment is not entitled to waiver.16 

On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if she 

has done any of the following: “(1) Made an incorrect statement as to a material fact which he or 

she knew or should have known to be incorrect; (2) Failed to provide information which he or 

she knew or should have known to be material; or (3) Accepted a payment which he or she knew 

or should have known was incorrect.”

17

ANALYSIS -- ISSUE 3

OWCP properly determined that appellant was at fault in the creation of the overpayment 

because she failed to provide information which she knew or should have known to be material 

on a Form EN1032 covering the period October 24, 2011 to October 14, 2012. The record 

establishes that appellant had unreported employment activity during this period and knowingly 

failed to furnish this material information to OWCP. Appellant acknowledged a certification 

clause on the Form EN1032 which advised her in explicit language that she might be subject to 

civil, administrative, or criminal penalties if she knowingly made a false statement or 

misrepresentation or concealed a fact to obtain compensation. By signing these forms, she is 

deemed to have acknowledged her duty to report any employment, self-employment, or 

involvement in a business enterprise. Appellant indicated that she had no employment or 

earnings from employment during the covered periods, and thus failed to furnish information 

which she knew or should have known to be material to OWCP.18 As she is not without fault in 

creating the overpayment, it is not subject to waiver of recovery.19

CONCLUSION

The Board finds that appellant forfeited her entitlement to compensation from 

October 24, 2011 to October 14, 2012 as she knowingly failed to report earnings from 

employment. The Board further finds that she received an overpayment of $31,600.83 as a result 

 

14 See J.N., Docket No. 13-1761 (issued July 1, 2014).

15 5 U.S.C. § 8129(b).

16 See Robert W. O Brien, 36 ECAB 541, 547 (1985).

17 20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001).

18 See supra note 10.

19 See Harold F. Franklin, supra note 7.
8

of the forfeiture and that she was at fault in the creation of the overpayment and thus not entitled 

to waiver of recovery of the overpayment.20

ORDER

IT IS HEREBY ORDERED THAT the February 28, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 20, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

20 The OWCP hearing representative found that the overpayment was due and payable but did not decide the rate 

of recovery. The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those cases where 

OWCP seeks recovery from continuing compensation under FECA. See George A. Rodriguez, 57 ECAB 224 

(2005); Marshall L. West, 36 ECAB 490 (1985).