United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Duluth, GA, Employer

__________________________________________

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Docket No. 16-1385

Issued: October 3, 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

COLLEEN DUFFY KIKO, Judge

JURISDICTION

On June 21, 2016 appellant, through counsel, filed a timely appeal from a May 13, 2016 

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 to consider the merits of this case.

ISSUES

The issues are: (1) whether appellant forfeited his right to compensation for the period 

October 12, 2007 through November 15, 2014 because he knowingly failed to report 

 

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 earnings as a pastor; (2) whether he received an overpayment of compensation in 

the amount of $271,743.45; and (3) whether OWCP properly found that appellant was at fault in 

the creation of the overpayment and that the overpayment was therefore not subject to waiver of 

recovery.

On appeal counsel argues that appellant was not working when performing pastoral 

duties and, therefore, did not forfeit his right to wage-loss compensation and medical benefits.

FACTUAL HISTORY

On May 16, 2007 appellant, then a 52-year-old truck driver, filed a traumatic injury claim 

(Form CA-1) alleging that on May 14, 2007 he injured his neck and arm when a trailer door 

jammed as he pulled it down. He stopped work on the date of injury. OWCP accepted the claim 

for right upper arm rotator cuff tear, right shoulder sprain, and rotator cuff syndrome. It

authorized right shoulder arthroscopic surgery, which was performed on July 24, 2007. By letter 

dated January 9, 2008, OWCP placed appellant on the periodic rolls for temporary total 

disability.3

Between 2009 and 2014, appellant completed EN1032 forms which contained language 

advising him of the types of employment activities, earnings, and volunteer activities that he was 

required to report for each 15-month period prior to the time he signed each form.

The EN1032 forms instructed appellant to report all employment for which he received a 

salary, wages, income, sales commissions, piecework, or payment of any kind. Appellant was 

directed to report all self-employment or involvement in business enterprises, including (but not 

limited to) farming, sales work, operating a business, and providing services in exchange for 

money, goods, or other services. Examples of services that he was required to report included 

such activities as carpentry, mechanical work, painting, contracting, child care, keeping books 

and records, odd jobs, and managing and overseeing a business of any kind, including a family 

business. Such activities had to be reported even if they were part time or intermittent. 

Moreover, the EN1032 forms instructed appellant to report any work or ownership 

interest in any business enterprise, even if the business lost money or if profits or income were 

reinvested or paid to others. If appellant performed any duties in a business enterprise for which 

he was not paid, he had to show what the rate of pay would have cost the employing 

establishment or organization to hire someone to perform the work or duties he did, even if the 

work was for him or a family member or relative. The forms contained certification clauses 

which informed him of the consequences of failing to accurately report his employment 

activities, such as being subjected to criminal penalties and losing the right to receive federal 

workers’ compensation benefits. 

 

3 By decision dated November 14, 2014, OWCP suspended appellant’s benefits, effective November 16, 2014, for 

failing to submit the required completed annual EN1032 form. On November 20, 2014 OWCP received his EN1032 

form dated November 15, 2014. It reinstated benefits for the period November 14 to December13, 2014 on 

November 24, 2014. In a November 3, 2015 decision, OWCP suspended appellant’s benefits for failing to submit 

the required completed EN1032 form effective November 15, 2015. On March 23, 2016 it received a completed 

EN1032 form. Appellant’s benefits were reinstated beginning November 16, 2015.
3

On January 12 and November 18, 2009, October 22, 2010, October 20, 2011, 

November 13, 2012, October 18, 2013, and November 15, 2014 appellant completed EN1032 

forms indicating that he had not engaged in any employment, self-employment, or volunteer 

work during the 15-month periods prior to the completion of each form.4 These EN1032 forms 

collectively covered the period October 12, 2007 through November 15, 2014. 

On April 7, 2015 OWCP received a February 9, 2015 investigative memorandum and an 

April 3, 2015 report of investigation by the employing establishment’s Office of Inspector 

General (OIG), which concluded that appellant had engaged in employment activity as the main 

pastor for the Union Missionary Baptist Church in East Point, GA during the period of

October 12, 2007 to November 15, 2014. The OIG noted that appellant’s EN1032 forms did not 

disclose his involvement with the Union Missionary Baptist Church. It further noted that on

March 11, 2013 appellant indicated his inability to perform an offered limited-duty job because 

of his physical ailments. Appellant responded to an employing establishment job offer noting 

that he could not lift, hold objects, or even “wipe his butt” due to his work injury. He also 

reported that he could not stand for long periods of time and that he walked many times with a 

cane. Appellant concluded his response by noting that he sometimes cannot leave his house or 

even get out of his bed due to his pain.

In an April 3, 2015 report of investigation, the reporting OIG agent noted the 

investigation had covered the period of December 11, 2013 to February 9, 2015 and concluded 

that appellant had served as the primary pastor for the Union Missionary Baptist Church during 

this period. In support of the findings of its investigation, the OIG reported that on 

December 22, 2013 an OIG agent observed appellant addressing the congregation as its pastor

from the podium at approximately 10:55 a.m., dismissing Sunday School at approximately 11:03 

a.m., and beginning a two and one-half hour service at approximately 11:30 a.m. During this 

period, the OIG agent observed that appellant appeared to function with no difficulty as he was 

seen walking, bending, standing, and raising his arms during the service. According to the OIG 

agent, congregation members and appellant himself related that he had been the pastor of the 

church for the past 17 years. 

Follow-up observation was conducted in furtherance of the OIG investigation. On 

January 19, 2014 an OIG agent observed appellant addressing the congregation starting at 

approximately 11:30 a.m. The service lasted until approximately 1:10 p.m. and he was observed 

walking up and down stairs, singing, pacing on the stage, and reaching with both arms 

outstretched continuously until the end of the service. Appellant was also observed on 

January 26, 2014 addressing the congregation beginning at 11:33 a.m. and ending at 2:00 p.m. 

During this time, the OIG agent observed appellant picking up, holding, and carrying a large 

bible; singing and conducting the choir; walking and swaying back and forth on stage; going 

down stairs; motioning with both arms and hands as well as swinging his arms; unscrewing a cap 

 

4 The EN1032 forms appellant completed between January 12, 2009 and October 22, 2010 asked, “During the 

past 15 months, did you perform any volunteer work for which ANY FORM of monetary or in-kind compensation 

was received?” The EN1032 forms he completed on October 20, 2011, November 13, 2012, October 18, 2013, and 

November 15, 2014 contained a change in language and asked, “During the past 15 months, did you perform any 

volunteer work including volunteer work for which ANY FORM of monetary or in-kind compensation was 

received?”
4

and drinking from a water bottle several times; grasping a microphone continuously throughout 

the service; and waving a towel. On April 6 and 13, 2014 two OIG agents observed appellant at 

the church with similar movements as on January 26, 2014. The service on April 6, 2014 lasted 

from 11:33 a.m. to 1:15 p.m. while the service conducted on April 13, 2014 began at 11:05 a.m. 

and ended at 1:00 p.m. At the April 13, 2014 service appellant introduced a guest minister, 

D.M., who gave the sermon, but he later addressed the congregation for approximately 1 hour 

and 25 minutes following the guest sermon. Appellant told the OIG agent that D.M. preached 

most of the time at the church and that his own title of pastor was in name only. The OIG report 

does not indicate, and the record does not otherwise establish, that appellant was ever paid a 

salary or received in-kind compensation for activities related to Union Missionary Baptist 

Church.

The OIG agent who completed the report indicated that in the Articles of Incorporation,

filed on January 16, 2005 with the Georgia Secretary of State, appellant was recorded as an 

incorporator and an initial director of Union Missionary Baptist Church, along with a number of 

other individuals. This document also related that the Church was tax exempt as a charitable or 

religious organization.

A church bulletin for the worship service of April 16, 2014 noted in the Order of Worship 

that appellant was to perform both the sermon and the benediction. The church bulletin also lists 

appellant as pastor and includes his email address, home telephone number, and his cell phone 

number. Neither D.M. nor any other individual is included in the bulletin as a pastor or in any 

other capacity.

In addition to the activities observed within the Union Missionary Baptist Church, the 

OIG report also confirmed physical activities performed by appellant including yard work, 

pulling a trash bin from the curb to his garage, driving a car, removing items from the trunk of a 

car, working on a car for three hours continuously, driving his van on vehicle ramps to crawl 

underneath the van, unraveling and taking a water hose from his yard to his home, carrying and 

painting a coffee table at his residence, raising his then 9-year-old son onto a garbage can and 

then pulling the garbage can across his yard, dragging tree branches in his yard, mowing his lawn 

with a riding lawn mower, and hand washing a minivan in his driveway including the top of the 

vehicle. The OIG report listed these activities and then cited to an October 9, 2014 medical 

assessment evaluation form in which appellant alleged that he could not cut his grass or work on 

cars. In an assessment form, noted in the OIG report, he indicated that he led a lifestyle of 

almost no activity as he could not reach, squat, kneel, bend, or grasp.

A copy of the investigative DVD/CD was included in the record. Appellant was 

interviewed by the investigator concerning his work injury and involvement with the Union 

Missionary Baptist Church. He related that the majority of the preaching was conducted by 

M.A. and that he was a pastor by name only. Appellant explained that due to physical 

limitations he was unable to conduct services. The investigator showed appellant the 

surveillance videotape of his conducting sermons and performing activities around his home and 

asked for his response. Appellant replied that he made statements and filled out paperwork 

based on what he felt he could do physically. He also claimed that he really did not read the 

forms thoroughly and just filled it out. The investigative memorandum reported appellant’s
5

statement that the church owed him $18,000.00 for work he performed prior to his injury and 

that he was not paid by the church as they could not afford to pay him.

By decision dated July 27, 2015, OWCP determined that appellant forfeited his right to 

compensation from October 12, 2007 to November 15, 2014 because he failed to report 

employment activities on EN1032 forms covering this period. The decision set forth the 

applicable language in the EN1032 forms for employment activities and for volunteer activities 

and noted that appellant reported no employment or volunteer activities. OWCP found that he 

had worked as a pastor of Union Missionary Baptist Church and noted that the wording of the 

EN1032 forms advised him of the need to report such employment activities even if he was not 

paid for them. OWCP noted that appellant’s activities were documented by evidence such as his

name being listed as pastor on the church bulletin and that he had not denied involvement with 

church management. It also noted that he had begun this work prior to his injury and therefore 

his continuation of the work required reporting.

In a July 27, 2015 letter, OWCP advised appellant of its preliminary determination that 

he received an overpayment of compensation in the amount of $271,743.45 because he forfeited 

his right to any compensation from October 12, 2007 to November 15, 2014.5 It also made a 

preliminary determination that he was at fault in the creation of the overpayment, thereby 

precluding waiver of recovery of the overpayment. OWCP indicated that appellant was aware or 

reasonably should have been aware of the reporting requirements of the EN1032 forms. It 

requested that he complete and return a financial information questionnaire (Form OWCP-20). 

Appellant requested a prerecoupment telephonic hearing with an OWCP hearing 

representative, which was held on March 18, 2016. During the hearing, the hearing 

representative noted that appellant had submitted an OWCP-14 form without any supporting 

financial evidence. Counsel argued that appellant’s work as a pastor could not be considered a 

hobby or volunteer work and therefore appellant was not required to report this activity. He

further argued that appellant’s activity of serving God was exempt from OWCP and the United 

States government laws and that this matter was not subject for review. Appellant testified that 

he received no money from the church or its parishioners for praying for the parishioners or 

when he preached. He also provided testimony regarding his income and expenses. 

On March 21, 2016 OWCP received a January 5, 2016 Nolle Prosequi Order by the 

Superior Court of Clayton County, GA, dismissing a criminal indictment for making false 

statements and theft by deception as crimes appellant had been charged with as the acts had 

occurred outside the venue of Clayton County.6

On April 15, 2016 OWCP received information regarding appellant’s income and 

expenses and supporting financial evidence.

 

5 The record contains payment records and worksheets showing that appellant had received $271,743.45 in 

compensation from October 12, 2007 to November 15, 2014.

6 On May 12, 2016 the special agent reported that OIG ultimately declined to prosecute appellant.
6

In a May 13, 2016 decision, the hearing representative affirmed the finding that appellant 

forfeited his right to compensation from October 12, 2007 to November 15, 2014 because he 

failed to report employment and earnings on EN1032 forms covering this period. He noted that 

the July 27, 2015 forfeiture decision had not been appealed. The hearing representative also 

found that appellant had received an overpayment of compensation in the amount of $271,743.45 

and that he was at fault in the creation of the overpayment, thereby precluding waiver of 

recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 1

The 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 earnings, forfeits his 

right to compensation with respect to any period for which the affidavit or report was required.7

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 he “knowingly” failed to report employment or earnings.8 The term 

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

consciously, willfully, or intentionally.”

9

Section 10.5(g) of OWCP’s implementing federal regulations defines earnings from 

employment or self-employment as follows:

“(1) Gross earnings or wages before any deduction and includes the value of 

subsistence, quarters, reimbursed expenses and any other goods or services 

received in kind as remuneration; or

“(2) A reasonable estimate of the cost to have someone else perform the duties of 

an individual who accepts no remuneration. Neither lack or profits, nor the 

characterization of the duties as a hobby, removes an unremunerated individual’s 

responsibility to report the estimated cost to have someone else perform his or her 

duties.”

10

OWCP procedures recognize that forfeiture is a penalty.11 As a penalty provision, it must 

be narrowly construed.12 To meet this burden, OWCP is required to examine closely appellant’s 

activities and statements. It may meet this burden without an admission by an employee if the 

 

7

5 U.S.C. § 8106(b).

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

9

20 C.F.R. § 10.5(n).

10 Id. at § 10.5(g).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.8 (May 2012).

12 See Christine P. Burgess, 43 ECAB 449, 458 (1992).
7

circumstances of the case establish that he failed to reveal fully and truthfully the full extent of 

his employment activities and earnings.13

ANALYSIS -- ISSUE 1

The Board finds that appellant forfeited his compensation between October 12, 2007 and 

November 15, 2014 as he knowingly failed to report employment and or volunteer activities 

related to being a pastor of Union Missionary Baptist Church on the EN1032 forms submitted 

into the record. These forms cover an entire period during which appellant served in the position 

of pastor and was observed performing actual labor activities. 

The EN1032 forms of record expressly indicate that if work was performed in 

furtherance of another’s business, the employee must show the rate of pay of what it would have 

cost the employer or organization to hire someone to perform the work actually performed. The 

Board has held that the test of what constitutes reportable earnings on an EN1032 is not whether 

appellant received a salary, but what it would have cost to have someone else do the work.

14

Appellant was interviewed by an OIG investigator in the course of its investigation. He 

was shown a copy of video surveillance which included his activities while acting in the position 

of pastor, as well as performing additional activities around his home and on his motor vehicles. 

Appellant did not deny that he was the individual surveilled or that he performed the activities as 

recorded. Rather, he explained that he made statements and filled out paperwork based on what 

he believed he could do physically. Appellant presented himself in documentation he submitted 

to OWCP as significantly disabled and unable to return to any work because he could not lift, 

hold objects, or even perform the most basic of self-care activities. Such statements lack 

credibility given the undisputed performance of activities both at his home and in his church as 

discovered and documented by the OIG investigator. Such lack of candor by appellant is 

persuasive evidence that he failed to reveal fully and truthfully the full extent of his employment 

activities and or earnings from Union Missionary Baptist Church.

While the investigative report was not supported by signed affidavits or declarations of 

witnesses such as a church parishioner, the Board finds that such support is unnecessary in this 

case to prove appellant’s activities as he confirmed the allegations contained in the report during

the course of the investigative interview.15 Appellant’s admissions are sufficient, on their own, 

to establish the extent of his activities as a pastor and to undercut his claims of total disability. 

The Board finds that appellant’s statements justifying his EN1032 entries are not credible given 

the undisputed observations of the OIG investigators, appellant’s own admissions that he was the 

individual on the surveillance video performing the activities witnessed by the investigators, and 

 

13 Terry A. Geer, 51 ECAB 168 (1999).

14 See Anthony Derenze, 40 ECAB 504 (1988); see also Monroe E. Hartzog, 40 ECAB 322 (1988); B.S. Docket 

No. 09-0076 (issued September 30, 2009); G.R., Docket No. 15-1047 (issued July 8, 2016).

15 Cf. D.O, Docket No. 13-1809 (issued September 11, 2014) (finding that an investigative report, lacking a 

transcript and signed statement of each witness cited within the report, is insufficient to establish a finding of 

forfeiture).
8

documentary evidence including the church bulletin which listed him as pastor and provided his 

contact information to parishioners. 

Counsel asserts on appeal that work as a pastor cannot be considered employment under 

FECA and is an activity that cannot be considered by OWCP to trigger forfeiture. The Board has 

previously held work as a pastor or performing volunteer activities for a church is required to be 

included on EN1032 forms.16 However, the mere fact that a claimant was listed on the Articles 

of Incorporation of the Church does not establish that he or she either performed work for or 

volunteered for the church.17 

The Board finds that appellant did knowingly omit employment activities and/or 

volunteer work under section 8106(b)(2) of FECA on each of the EN1032 forms completed 

between January 2, 2009 until November 15, 2014, forms which covered the period of earnings 

from October 12, 2007 through November 15, 2014, as he failed to reveal fully and truthfully the 

full extent of his employment activities and/or earnings.

LEGAL PRECEDENT -- ISSUE 2

Section 10.529 of OWCP’s implementing regulations provide 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 

and other relevant statues.”

18

ANALYSIS -- ISSUE 2

As noted above, OWCP regulations provide that it must declare an overpayment of 

compensation for any compensation already paid for the period of a given forfeiture of 

compensation. If a claimant has any employment, including self-employment or involvement in 

a business enterprise, during a period covered by an EN1032 form which he or she fails to report, 

the claimant is not entitled to any compensation for any portion of the period covered by the 

report, even though he may have not had earnings during a portion of that period. The record of 

evidence contains payment records and worksheets from OWCP showing that appellant received 

$271,743.45 in compensation for the period from October 12, 2007 to November 15, 2014. The 

 

16 See C.D., Docket No. 14-1165 (issued July 8, 2015).

17 Id.

18 20 C.F.R. § 10.529.
9

Board therefore finds that appellant received an overpayment of compensation in the amount of 

$271,743.45.

LEGAL PRECEDENT -- ISSUE 3

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP unless “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.”

19

Section 10.433(a) of OWCP’s regulations provide that OWCP:

“[M]ay consider waiving an overpayment only if the individual to whom it was 

made was not at fault in accepting or creating the overpayment. Each recipient of 

compensation benefits is responsible for taking all reasonable measures to ensure 

that payments he or she receives from OWCP are proper. The recipient must 

show good faith and exercise a high degree of care in reporting events which may 

affect entitlement to or the amount of benefits. A recipient who has done any of 

the following will be found to be at fault in creating an overpayment:

(1) Made an incorrect statement as to a material fact which he or 

she knew or should have known to be incorrect; or

(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 to be incorrect. (This provision applies only to the overpaid 

individual).”

20

To determine if an individual was at fault with respect to the creation of an overpayment, 

OWCP examines the circumstances surrounding the overpayment.

The degree of care expected may vary with the complexity of those circumstances and 

the individual’s capacity to realize that he or she is being overpaid.21

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly determined that appellant was at fault in the 

creation of the overpayment because he failed to provide information which he knew or should 

reasonably have known to be material on the EN1032 forms dated January 2, 2009 to 

 

19 5 U.S.C. § 8129; See Linda E. Padilla, 45 ECAB 768 (1994).

20 20 C.F.R. § 10.433(b); see Sinclair Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

21 Id. at § 10.433(b); Duane C. Rawlings, 55 ECAB 366 (2004).
10

November 15, 2014. The evidence of record establishes that appellant had unreported 

employment activity during this period and knowingly failed to furnish this material information 

to OWCP as required by law.

Appellant signed a certification clause on the EN1032 forms which expressly advised 

him that he might be subject to civil, administrative, or criminal penalties if he knowingly made 

a false statement or misrepresentation or concealed a fact to obtain compensation. By signing 

the annual EN1032 forms, he is deemed to have acknowledged his duty to report any 

employment, self-employment, or involvement in a business enterprise. The Board therefore 

finds that appellant failed to furnish information which he knew or reasonably should have 

known to be material to OWCP. As he is at fault in the creation of the overpayment, it is not 

subject to waiver of recovery.22

In cases such as here, where appellant is no longer receiving FECA compensation 

benefits, the Board does not have jurisdiction over either the amount or method of recovery of 

the overpayment under the Debt Collection Act.23

CONCLUSION

The Board finds that OWCP properly determined that appellant forfeited his right to 

compensation pursuant to § 8106(b)(2) of FECA, for the period October 12, 2007 to 

November 15, 2014. The Board further finds that OWCP properly determined that an 

overpayment of compensation in the amount of $271,743.45 was created and that, as appellant 

was at fault in the creation of the overpayment, it was not subject to waiver of recovery.

 

22 Harold F. Franklin, 57 ECAB 387 (2006).

23 Albert Pineiro, 51 ECAB 310 (2000).
11

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated May 13, 2016 is affirmed.

Issued: October 3, 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