United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.A., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, Washington, DC, 

Employer

__________________________________________

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Docket No. 18-0406

Issued: January 28, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

No appearance, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 18, 2017 appellant filed a timely appeal from a November 3, 2017 merit 

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

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.

ISSUE

The issue is whether OWCP properly determined that appellant forfeited his right to 

compensation for the period December 21, 2013 to March 21, 2015 because he knowingly failed 

to report employment activities and earnings.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 26, 2013 appellant, then a 45-year-old maintenance worker, filed a traumatic 

injury claim (Form CA-1) alleging that, on February 13, 2013, he sustained a back injury when he 

was filling potholes while in the performance of duty. He reported that he was about to enter his 

truck when he stepped on leaves which were covered by a large rock, lost his balance and fell 

backwards onto a boulder, injuring his back. OWCP accepted the claim for sprain of back, thoracic 

region.2

Appellant stopped work on February 14, 2013 and did not return. OWCP paid him 

appropriate wage-loss compensation on the supplemental rolls beginning April 1, 2013 and placed 

him on the periodic rolls, effective August 24, 2014.

On February 24, 2015 OWCP provided appellant with Forms EN1032 to complete 

regarding his earnings and employment activity for the preceding 15-month period. The form 

advised that appellant must report all employment for which he received a salary, wages, income, 

sales commissions, piecework, or any payment of any kind, and that he must also report selfemployment or involvement in any business enterprise in the past 15 months. The form contained 

certification clauses which informed him of the consequences of inaccurately reporting his 

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

workers’ compensation. 

In an EN1032 form signed on March 21, 2015, appellant responded “no” with respect to 

any employment or involvement in a business enterprise during the past 15 months. 

In the employing establishment’s Office of Inspector General (OIG) investigative activity 

report dated November 13, 2015, D.N. reported that he and W.R., serving as OIG special agents, 

conducted a telephonic interview with appellant regarding possible false claims for workers’

compensation. D.N. reported that, during the interview, appellant informed him that he drove 

buses part time for Haymarket Transportation, Inc. (Haymarket) from 2007 to April or May 2015. 

He reported that appellant declared his income from Haymarket for April or May 2015 and 

believed that he also claimed other periods in the past. Appellant stated that his supervisor was 

 

2 The Board notes that appellant also has the following accepted claims: 

Appellant filed a Form CA-1 for a December 18, 2009 injury when he was involved in a motor 

vehicle accident while in the performance of duty after another vehicle crossed the center line and 

struck his vehicle head on. OWCP accepted the claim for sprain of back thoracic region under

File No. xxxxxx503.

Appellant filed a notice of recurrence (Form CA-2a) alleging a back injury on August 3, 2010 when 

attempting to pull a sign post out of the ground. OWCP accepted the claim for sprain of back lumbar 

region as a new traumatic injury, under File No. xxxxxx378. 

Appellant filed another Form CA-1 for an April 4, 2012 injury when he injured his back while 

shoveling and raking dirt to repair a road. OWCP accepted the claim for sprain of back lumbar 

region and sprain of back thoracic region under File No. xxxxxx653.

On July 30, 2014 OWCP has administratively combined File Nos. xxxxxx653, xxxxxx503, 

xxxxxx378, and xxxxxx653, with the latter serving as the master file. 
3

aware that he was driving part time for a company and never expressed any concerns with his 

outside employment. He reported that no one informed him that there was a conflict between 

driving buses for Haymarket and his workers’ compensation claim. 

In an EN1032 form signed on February 22, 2016, appellant indicated that he drove buses 

for Haymarket from April 13 to 19, 2015, and three days in May 2015. He reported wages of

$14.00 an hour with earnings totaling $1,472.00 for the entire year. 

In a May 17, 2016 letter, the employing establishment’s OIG informed OWCP that it had 

conducted an investigation into appellant after it was alleged that he may have been involved in a

workers’ compensation fraud scheme. The investigation revealed that appellant was employed by 

a private sector transportation company while claiming FECA workers’ compensation with the

employing establishment. It noted that he did not report his work status on the annual EN1032 

forms until February 19, 2016. OIG requested OWCP issue a forfeiture determination based on 

appellant’s nondisclosure of his employment activity. It provided a copy of his March 21, 2015 

EN1032 form, a November 13, 2015 report summarizing its investigatory interview of him, a 

January 6, 2016 Form EN1032 document review, and a January 27, 2016 summary report of the 

investigation.

In a January 6, 2016 OIG Form EN1032 document review, agent D.N. reported that 

appellant’s signed March 21, 2015 Form EN1032 stated that he did not work for any employing 

establishment during the past 15 months. The agent further stated that, during appellant’s 

November 21, 2015 interview, he informed them that he was employed part time by Haymarket 

from 2007 until April or May 2015. Appellant reported that his spouse was his then-representative 

and submitted his workers’ compensation paperwork on his behalf. 

OIG provided a January 27, 2016 summary report which determined that appellant worked 

in the private sector while also in receipt of FECA benefits during the entire period of his workers’

compensation claim spanning from April 2013 to March 2015. During a telephonic interview, 

appellant admitted that he had driven buses for Haymarket part time from 2007 to 2015. He stated 

that his wife submitted OWCP paperwork on his behalf and that he had declared his most recent 

period of employment with Haymarket. Appellant believed that he had reported all other periods 

of employment. OIG reported that his EN1032 form, signed on March 21, 2015, indicated that he 

did not work for any employing establishment during the past 15 months. 

By decision dated July 26, 2016, OWCP found that appellant forfeited his compensation 

from December 21, 2013 to March 21, 2015 based on his failure to report earnings while receiving 

compensation for total disability.3 It found that he knowingly failed to report his earnings from 

Haymarket when he was employed for the company from 2007 through April or May 2015. 

 

3 The Board notes that, on October 29, 2015, OWCP notified appellant of a proposal to terminate his wage-loss 

compensation and medical benefits because his work-related injuries and disability had resolved. By decision dated 

February 23, 2016, OWCP terminated his wage-loss compensation and medical benefits, effective February 19, 2016, 

finding that the medical evidence of record established that he no longer had any residuals causally related to the 

accepted work-related conditions or continued disability as a result of the February 13, 2013 work injury. 
4

OWCP referenced appellant’s EN1032 form dated March 21, 2015, which certified that he did not 

work for any employing establishment during the past 15 months. 

By separate decision dated July 26, 2016, OWCP preliminarily determined that an 

overpayment of compensation in the amount of $45,425.19 was created due to the forfeiture of 

compensation for the period December 21, 2013 through March 21, 2015. It further found that 

appellant “appeared to be” at fault in the creation of the overpayment. OWCP informed him of 

his rights with regard to further review and instructed him to complete an enclosed overpayment 

recovery questionnaire (Form OWCP-20) and submit supporting financial documentation within 

30 days. 

In an appeal request form postmarked on August 26, 2016, appellant contested the July 26, 

2016 forfeiture decision and requested an oral hearing before an OWCP hearing representative.

In an overpayment action request postmarked on August 26, 2016, appellant disagreed with 

the fact and amount of overpayment and requested a prerecoupment hearing. 

By decision dated September 13, 2016, an OWCP hearing representative denied 

appellant’s request for a hearing regarding the forfeiture decision, finding that his request was not 

made within 30 days of the July 26, 2016 decision. The hearing representative further determined 

that the issue in the case could equally well be addressed by requesting reconsideration from 

OWCP and submitting evidence not previously considered. 

By separate decision dated September 13, 2016, an OWCP hearing representative denied 

appellant’s request for a prerecoupment hearing, finding that his request was not made within 30 

days of the July 26, 2016 preliminary overpayment decision. 

On October 28, 2016 appellant requested reconsideration of the forfeiture decision. He

contended that his compensation from December 21, 2013 through March 21, 2015 should not be 

forfeited because he was not employed by Haymarket during that time. 

An October 21, 2016 letter provided by Haymarket reported that appellant had been on the 

contractor roster for Haymarket as a driver contractor since November 2005. However, appellant 

did not actually work between the dates of December 21, 2013 and March 21, 2015. 

By decision dated January 19, 2017, OWCP denied modification of its July 26, 2016 

forfeiture decision. It found that the evidence of record was insufficient to support that appellant 

did not receive payment from Haymarket during the period December 21, 2013 through March 21, 

2015 while also receiving FECA compensation benefits.

By separate decision dated January 19, 2017, OWCP finalized the preliminary 

overpayment determination, finding that appellant was overpaid in the amount of $45,425.19 from 

December 21, 2013 through March 21, 2015. It further found that he was at fault in the creation 

of the overpayment because he knew or should have known that he was required to complete the 
5

EN1032 form accurately and failed to state that he was employed while receiving compensation

on the periodic rolls. OWCP determined that the entire overpayment was due and payable in full.4

On February 22, 2017 appellant requested reconsideration of the January 19, 2017 

forfeiture decision. 

In a February 18, 2017 statement, appellant reported that both his 2013 Internal Revenue 

Service (IRS) wage and tax statement (Form W-2) and tax return showed that none of his 2013 

wages were from Haymarket. He reported that his 2014 IRS tax return, along with his spouse’s 

Statement of Annuity form (1099-R), showed that her income was the sole income for 2014, which 

established that he was not employed by Haymarket during that period. Appellant stated that his 

2015 miscellaneous income form (1099-MISC) from Haymarket showed that he earned $1,472.00 

for the entire year from the private-sector employment. He explained that he did not earn income

from Haymarket during the period December 21, 2013 through March 21, 2015, and that the 

$1,472.00 earned occurred later in 2015. 

In support of his claim, appellant submitted his 2013 W-2 from the Department of the 

Interior reflecting wages amounting to $15,126.07. He also submitted a 2013 Department of the 

Interior W-2 for his wife reflecting wages amounting to $29,479.35. The remaining information 

on the 2013 W-2 statements were redacted. A joint IRS tax return for 2013 was submitted for 

appellant and his wife. Wages were noted as $44,605.00 and adjusted gross income amounted to 

$61,505.00. The tax return was stamped “preview copy, do not file.” The information on the 

remainder of the form was redacted. A redacted 2014 statement of annuity 1099-R form reflected 

that appellant’s spouse received $33,386.80 for disability payment. A 2014 joint IRS tax return

reflected wages of $33,387.00 with an adjusted gross income amounting to the same. The 

remainder of the document was redacted. In a 2015 Haymarket Miscellaneous Income form (1099-

MISC), appellant earned $1,472.00 for nonemployee compensation. 

By decision dated May 22, 2017, OWCP denied modification of its July 26, 2016 forfeiture 

decision. It noted that the evidence submitted was redacted, the tax returns were not official copies, 

and the 2015 form 1099-MISC from Haymarket did not provide dates to indicate whether the 

income was earned after March 21, 2015. 

On July 26, 2017 appellant requested reconsideration of the May 22, 2017 decision. In an 

accompanying statement, he noted submission of IRS wage and income transcripts for 2013, 2014, 

and 2015, none of which were redacted. Appellant reported that, from January to December 2013, 

he earned $15,126.00 from the Department of the Interior. From January to December 2014, he 

earned $71.00 from the Department of the Interior. From January to December 2015, appellant

earned $1,472.00 from Haymarket which was earned after March 2015. 

A 2013 IRS Form W-2 wage and tax statement printout for appellant revealed his 

employing establishment as the Department of the Interior with wages amounting to $15,126.00. 

A 2014 IRS form W-2 wage and tax statement printout for him revealed his employing 

 

4 On February 17, 2017 appellant contested the overpayment decision and requested a prerecoupment hearing. By 

decision dated March 20, 2017, an OWCP hearing representative notified him that the final January 19, 2017 

overpayment decision was not subject to the hearing provision of 5 U.S.C. § 8124(b).
6

establishment as the Department of the Interior with wages amounting to $71.00. A Haymarket 

report for the period January through December 2015 indicated that appellant received a May 1, 

2015 check for 56.5 hours of work, a May 15, 2015 check for 17.25 hours of work, and a June 26, 

2015 check for 18.25 hours of work, amounting to $1,472.00 in earnings for 2015. 

By decision dated November 3, 2017, OWCP denied modification of its May 22, 2017 

decision. It found that appellant’s 2014 W-2 established that he earned $71.00 from the 

Department of the Interior which substantiated that during the 15-month forfeiture period he

received earnings that he did not report. 

LEGAL PRECEDENT

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.5

Earnings from employment or self-employment means: (1) gross earnings or wages before 

any deductions 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.6 Neither lack of 

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 duties.7

In order to establish that a compensationer should forfeit the compensation received for the 

periods covered by completed EN1032 forms, the evidence must establish that he or she knowingly 

omitted or understated his or her employment and earnings.8 The language on EN1032 forms is 

clear and unambiguous in requiring a claimant to report earnings for the previous 15 months from 

any employing establishment, self-employment, or a business enterprise in which he or she 

worked. The forms further emphasize that severe penalties may be applied for failure to report all 

work activities thoroughly and completely.9 

An employee can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he 

or she “knowingly” omitted or understated earnings. It is not enough to merely establish that there 

were unreported earnings or employment. OWCP procedures recognize that forfeiture is a 

 

5

Id. at § 8106(b).

6 20 C.F.R. § 10.5(g).

7

Id.

8 Robert R. Holmes, 49 ECAB 161 (1997).

9 B.T., Docket No. 09-2190 (issued August 6, 2010).
7

penalty,

10 and as a penalty provision, it must be narrowly construed.11

 In its regulations, 

“knowingly” is defined as: “with knowledge, consciously, willfully, or intentionally.”

12

 OWCP 

has the burden of proof to establish that a claimant, either with knowledge, consciously, willfully, 

or intentionally, failed to report earnings or employment activities.13 Its procedures provide that 

an OWCP forfeiture decision should specifically discuss the evidence which supports that the 

claimant knowingly failed to report earnings or employment.14 To meet its burden of proof to 

establish forfeiture, OWCP is required to examine closely the employee’s activities and 

statements. It can meet this burden of proof in several ways, including by appellant’s own 

admission to OWCP that he failed to report employment or earnings which he knew he should 

report.15 

OWCP’s implementing regulations provide:

“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.”

16

The Board has held that OWCP may not base its application of the forfeiture provision 

strictly on conclusions drawn in an investigation; rather, the evidence of record must establish that 

the claimant has had unreported earnings from employment which were knowingly not reported.17 

In FECA Bulletin No. 83-7, OWCP noted that an investigative report showing that a claimant has 

had unreported earnings from employment must be used in conjunction with other evidence of 

record in order to properly find a forfeiture of compensation.18 

ANALYSIS

The Board finds that this case is not in posture for decision. 

In finding that appellant forfeited compensation, OWCP relied on a January 27, 2016 

investigative activity report produced by the employing establishment’s OIG which concluded that 

 

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

11 Christine P. Burgess, 43 ECAB 449 (1992).

12 20 C.F.R. § 10.5(n); see Anthony A. Nobile, 44 ECAB 268 (1992).

13 Billy J. McCamey, Docket No. 00-2725 (issued June 11, 2002).

14 See supra note 10 at Chapter 2.1402.8d.

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

16 20 C.F.R. § 10.529.

17 Antonia J. Giunta, 53 ECAB 370, 377 (2002); Louis P. McKenna, Jr., 46 ECAB 328 (1994).

18 FECA Bulletin No. 83-07 (March 31, 1984).
8

he worked in the private sector for a transportation company while also in receipt of FECA benefits 

during the 15-month period December 21, 2013 to March 21, 2015, covered by the EN1032 form 

he signed on March 21, 2015. The investigation relied on appellant’s November 13, 2015 

telephonic interview where he admitted that he had driven buses for Haymarket part time from 

2007 to 2015. OIG determined that he failed to disclose these earnings on his March 21, 2015 

EN1032 form which stated that he did not work for any employing establishment during the 

preceding 15 months. It noted that appellant did not report his work status on the annual EN1032 

form until February 19, 2016. Based on the November 13, 2015 telephonic interview and 

summary therefrom, and the March 21, 2015 EN1032, OWCP determined that he knowingly 

misrepresented his employment and earnings from Haymarket, subjecting him to forfeiture of his 

compensation for the period December 21, 2013 to March 21, 2015. 

The Board finds that OWCP did not present sufficient evidence to support its determination 

that appellant was employed by Haymarket during the forfeiture period in question. In the 

November 13, 2015 OIG memorandum, agent D.N. merely summarized the telephonic interview 

conducted with appellant, reporting that appellant informed him that he drove buses part time for 

Haymarket from 2007 to April or May 2015. OWCP relied on this interview summary to 

determine that appellant forfeited his right to compensation during the December 21, 2013 to 

March 21, 2015 period in question. The Board notes that the record does not contain any transcript 

detailing the questions agent D.N. asked of appellant as the interviewee, or the actual responses 

made by him. There is no individual statement signed by appellant as the party questioned.

In Claudia J. Thibault,

19 the Board found that OWCP relied only upon a memorandum in 

which an agent with the employing establishment’s OIG memorialized a telephone interview with 

a witness who commented on the employee’s activities in finding forfeiture. The Board noted that 

a special agent wrote the memorandum instead of the person interviewed. The Board determined 

that this was insufficient evidence to outweigh the employee’s testimony that she did not have 

earnings.

In the case of R.W.,

20 the Board found that OWCP based its forfeiture determination on a 

memorandum in which a special agent from the employing establishment’s OIG provided 

summaries of interviews conducted with the employee and several witnesses. The memorandum 

did not specify the actual questions asked of the witnesses or contain the actual answers provided. 

There was nothing signed by any of the individuals attesting to the accuracy of the information 

provided. The Board found that the evidence was insufficient to support the forfeiture decision.

Similarly, in R.M., the Board found that OWCP relied heavily on interview summaries

conducted by the employing establishment’s OIG without the benefit of detailed documentation 

reflecting the actual questions asked, answers provided, or attestations establishing the accuracy 

of the information. The Board found that this evidence was insufficient to support the forfeiture 

decision. The Board further explained that a number of the individuals interviewed by 

investigating agents produced signed statements in which they disputed the characterization of 

their statements as reported in OIG memorandum. Moreover, the Board found that the evidence 

 

19 40 ECAB 836 (1989).

20 Docket No. 09-1607 (issued July 26, 2010).
9

of record failed to clearly show that appellant had employment or earnings during the periods of 

forfeiture, explaining that, while the record contained checks made out to him, in most cases there 

was no indication for what purpose the checks were written.21

The facts and the circumstances in the present case, are similar to those in Thibault, 

R.W., and R.M. given the fact that, in finding periods of forfeiture, great emphasis was placed on 

interview summary contained in an investigative memorandum without the benefit of detailed 

documentation confirming the accuracy of the interview summary contained therein.22

In this instance, similar to R.M., appellant disputed the characterization of his statement 

provided in the interview as reported in OIG memorandum which indicated that he was employed 

by Haymarket during the period in question.23 Following OWCP’s forfeiture decision, he asserted 

that although he worked part time for Haymarket from 2007 to 2015, he was not employed by the 

company from December 21, 2013 through March 21, 2015. Appellant went on to explain that he 

worked for the company in April and May 2015, subsequent to the forfeiture period in question,

which he reported on his February 19, 2016 EN1032 form. He further submitted an October 21, 

2016 letter from Haymarket in support of his assertion. The letter prepared by the accounting and 

human resources department at Haymarket, reported that appellant had been on the contractor 

roster for Haymarket as a driver contractor from November 2005 through the present. However, 

it clarified that he did not actually work between the dates of December 21, 2013 and

March 21, 2015. Given the inadequacies of OIG interview summary, coupled with statements 

provided by appellant and Haymarket, the evidence failed to provide support that he had earnings 

or salary from Haymarket during the period in question.24 

The Board has held that OWCP may not base its application of the forfeiture provision 

strictly on conclusions drawn in an investigation, but rather the evidence of record must establish 

that the claimant had earnings from employment which were knowingly unreported.25 The Board 

has further held that, in the absence of actual signed statements or clear documentation of work 

activities, there is inadequate evidence to establish that appellant had earnings or was engaged in 

employment activities which were required to be reported on the EN1032 forms he submitted.26

Given the above, the Board finds that the forfeiture determination requires further 

development. OWCP must present sufficient evidence to establish that appellant misrepresented 

his earnings and employment activity which would subject him to the forfeiture provisions of 

FECA. The evidence should be clear in establishing that he earned income during the period 

December 21, 2013 through March 21, 2015, which he knowingly omitted or understated such that 

 

21 Docket No. 13-2169 (issued August 26, 2014).

22 Id.

23 Id.

24 E.L., Docket No. 11-1046 (issued August 22, 2012).

25 B.Y., Docket No. 11-1798 (issued July 24, 2012); Louis P. McKenna, Jr., 46 ECAB 328 (1994).

26 J.C., Docket No. 16-1058 (issued July 10, 2017).
10

he is subject to forfeiture under 5 U.S.C. § 8106(b). The case will be remanded to OWCP for 

proper findings and a de novo decision.27

CONCLUSION

The Board finds that this case is not in posture for decision with respect to the forfeiture of 

compensation. 

ORDER

IT IS HEREBY ORDERED THAT the November 3, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded for further action consistent 

with this decision of the Board.

Issued: January 28, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

27 T.P., Docket No. 15-1016 (issued March 23, 2016).