United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 18-1557

Issued: June 25, 2019

Appearances: Case Submitted on the Record

Aaron B. Aumiller, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 10, 2018 appellant, through counsel, filed a timely appeal from a February 28, 

2018 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 OWCP properly determined that appellant forfeited her right 

to compensation for the period December 12, 2014 to March 12, 2016, pursuant to section 

 

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

8106(b)(2) of FECA, because she knowingly failed to report her employment activities and 

earnings; (2) whether she received an overpayment of compensation in the amount of $45,889.41; 

(3) whether OWCP properly determined that appellant was at fault in creation of the overpayment, 

thereby precluding waiver of recovery of the overpayment; and (4) whether OWCP properly 

required recovery of the overpayment by deducting $310.00 every 28 days from her continuing 

compensation payments.

FACTUAL HISTORY

On October 24, 2009 appellant, then a 24-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 23, 2009, while kneeling to place mail in her mail 

bag, she experienced a sharp pain in her low back while in the performance of duty. She stopped 

work on October 23, 2009 and returned to modified duty on December 7, 2009. On January 14, 

2010 OWCP accepted that appellant had sustained a lumbar strain/sprain. On March 21, 2011 it

expanded its acceptance of the claim to include an L4-5 disc herniation.

From May 14, 2011 to February 10, 2012 appellant performed part-time, light-duty work. 

OWCP paid her wage-loss compensation for the remaining hours. It accepted a recurrence of total 

disability commencing February 11, 2012 and paid appellant wage-loss compensation. Following 

a period of intermittent work absences, OWCP accepted that appellant sustained a recurrence of 

disability commencing May 21, 2012. It paid appellant wage-loss compensation commencing 

June 16, 2012.

Appellant was required to submit information with respect to any outside employment on 

EN1032 forms. The forms instructed that, if appellant had performed any duties in any business 

enterprise for which she was not paid, she must “show as rate of pay what it would have cost the 

employer or organization to hire someone to perform the work or duties you did, even if the work 

was for yourself or a family member or relative.” On a Form EN1032 signed November 11, 2013, 

appellant indicated that during the past 15 months, she was self-employed or involved in a business 

enterprise. She noted that she had “created a website for fun” and had received a total of $5.84 in 

advertisement payments. Appellant operated the website from her residence. On a Form EN1032 

signed on May 1, 2015, appellant indicated that she was not employed, self-employed, or involved 

in any business enterprise during the past 15 months.

On a Form EN1032 signed on March 12, 2016, appellant indicated that during the past 15 

months, she was involved in a business enterprise as creator of the website “All Eyes on the 215”

with actual earnings of $140.00 and a loss of $2,652.00. She operated the website from her 

residence.
3

On April 18, 2016 an investigator from the employing establishment’s Office of the 

Inspector General (OIG) interviewed appellant at the employing establishment. OWCP terminated 

her wage-loss compensation, effective April 18, 2016.3

Special Agent M.O. of the OIG submitted an investigative report dated April 20, 2016.

M.O. reported that from October 23, 2015 to April 6, 2016, appellant had operated “Jean Marie 

Creations,” a photography business, and a second enterprise, “All Eyes on the 215” to promote 

fashion and music. Appellant was observed carrying photography equipment for location shoots 

on November 11, 2015 and February 10, 2016. She had recently contracted with an undercover 

OIG agent as “Jean Marie Creations a company under All Eyes on the 215” for photography 

services at a June 6, 2016 wedding for a fee of $3,200,00 plus $256.00 in taxes. The detailed, 

multi-page contract describes a 14-hour package of photography and video services. An 

undercover OIG agent had also written a check to appellant dated February 3, 2016 for $150.00 

for “photography services” rendered. The report also notes an additional $70.00 payment on an 

unspecified date.

Appended to the investigative report is appellant’s statement signed on April 18, 2016, in 

which she acknowledged that she did not report in-kind compensation from Jean Marie Creations. 

Appellant asserted that she had declared $140.00 of the $220.00 received from the OIG undercover 

agent as she mistakenly thought she was required to list income only from 2016. She explained 

that her duties in maintaining the “All Eyes on the 215” website included editing videos and 

hosting a radio show. From 2012 through 2016, appellant had conducted 14 interviews and three 

photo shoots, for which she received $4,100.00 in in-kind compensation. In an investigative 

interview conducted on April 18, 2016, appellant acknowledged that she had performed

photographic services valued at $200.00 for a wedding in early 2015 and $3,000.00 for a wedding 

in August 2015. She provided these services in exchange for publicity for her business. Appellant 

noted that she also provided photography services to family members.

Appellant resigned from the employing establishment effective September 12, 2016.

By decision dated June 23, 2017, OWCP found that appellant forfeited her compensation 

from December 12, 2014 to March 12, 2016. It found that she failed to report earnings from her 

freelance photography business in the EN1032 form she had signed on March 12, 2016. OWCP 

further found that as appellant “knowingly” failed to report her earnings on the EN1032 form 

signed on March 12, 2016, her wage-loss compensation was forfeited for the 15-month period 

prior to the date she signed the form. It calculated that it had paid appellant $45,889.41 in wageloss compensation from December 12, 2014 to March 12, 2016.

OWCP issued a preliminary determination dated June 23, 2017, finding that an 

overpayment of $45,889.41 was created due to appellant’s failure to disclose earnings from her 

 

3 OWCP predicated the termination of appellant’s wage-loss compensation on reports of a referral physician and 

an attending physician after viewing OIG surveillance videos. On May 24, 2016 appellant claimed compensation 

(Form CA-7) for the period April 16, 2016 and continuing. By decision dated September 12, 2016, OWCP denied the 

claim based on a lack of medical evidence. On September 15, 2016 appellant, through counsel, requested a telephonic 

oral hearing before a representative of OWCP’s Branch of Hearings and Review. At the hearing, held April 5, 2017, 

counsel asserted that appellant had reported to the employing establishment on April 18 and May 2, 2016 for 

investigative interviews, but performed no work duties. 
4

freelance photography business on the Form EN1032 signed on March 12, 2016. It informed 

appellant of her review rights and instructed her to complete an enclosed overpayment recovery 

questionnaire (Form OWCP-20) and submit supporting documentation within 30 days.

On June 27, 2017 OWCP retroactively reinstated appellant’s compensation effective 

April 18, 2016 and paid compensation through June 24, 2017. It placed appellant on the periodic 

compensation rolls effective June 27, 2017, with ongoing payments of $3,237.00 every 28 days.

On July 20, 2017 appellant, through counsel, requested a telephonic oral hearing before an 

OWCP hearing representative with regard to the June 23, 2017 forfeiture decision.

On July 27, 2017 appellant, through counsel, requested a telephonic prerecoupment 

hearing before an OWCP hearing representative regarding the issues of fault and waiver of the 

proposed overpayment of compensation. Appellant contended that her photography was a hobby 

and not a business, and that the $220.00 in photography services she performed at the request of 

an undercover OIG agent did not include child care and other expenses incurred. She asserted that 

the two photography projects she contracted with the OIG agent were the only projects for which 

she had asked for money, and that all of her other photography activities were only as a hobby or 

for family members. Appellant submitted a partially completed Form OWCP-20 signed on 

June 20, 2017 with no information about her income, assets, or expenses.

During the telephonic hearing, held January 16, 2018, an OWCP hearing representative 

addressed both the forfeiture and overpayment issues. Appellant contended that Jean Marie 

Creations and All Eyes on the 215 were hobbies and not businesses. She acknowledged receiving 

$220.00 in payment from an undercover OIG inspector for photography services, including 

location shoots at a park and an art museum. Appellant contended that she reported the $220.00 

received on a Form EN1032, but first subtracted her expenses. 

By decision dated February 28, 2018, an OWCP hearing representative found that 

appellant had forfeited her right to compensation for the period December 12, 2014 to March 12, 

2016, finding that the evidence of record supported that appellant failed to report all of her earnings 

on the Form EN1032 dated March 12, 2016. He found that although appellant reported earning 

$140.00, she associated it with All Eyes on the 215, but did not disclose her photography business. 

Moreover, appellant did not substantiate expenses of $80.00. The hearing representative further 

found that there was no provision under FECA that allowed for “any deduction of expenses when 

reporting earnings.” He further found that as appellant did not submit financial information as 

requested, it was reasonable to require repayment of the $45,889.41 overpayment of compensation 

at the rate of $310.00 a month, equal to 10 percent of her continuing compensation payments.

4

LEGAL PRECEDENT -- ISSUE 1

Section 8106(b) of FECA provides that the Secretary of Labor may require a partially 

disabled employee to report his or her earnings from employment or self-employment, by affidavit 

 

4 As of February 27, 2018, OWCP paid appellant $2,854.24 in compensation every 28 days, equal to $102.08 a day 

or $37,259.20 a year. Dividing the annual result of $37,259.20 by 12 equaled $3,104.93 a month. 
5

or otherwise, in the manner and at the times the Secretary specifies. It states that an employee 

who: 

“(1) fails to make an affidavit or report when required; or 

“(2) 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

 

Section 10.5(g) of OWCP’S regulations defines earnings from employment or selfemployment 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 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 or her 

duties.”

6

The Board has further explained that in order to establish that a compensationer should 

forfeit the compensation received for the periods covered by completed OWCP EN1032 forms, 

the evidence must establish that he or she knowingly omitted or understated his or her employment 

or earnings.7 As forfeiture is a penalty, it is not enough merely to establish that there were 

underreported earnings from employment. 

The term “knowingly” as defined in OWCP’s implementing regulations and Board 

precedent means “with knowledge; consciously; intelligently; willfully; and intentionally.”

8

 

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.”

9

 

5 5 U.S.C. § 8106(b); M.O., Docket No. 18-0686 (issued January 25, 2019); see also F.C., 59 ECAB 666 (2007).

6 20 C.F.R. § 10.5(g).

7 M.O., supra note 5; Robert R. Holmes, 49 ECAB 161 (1995); Id. at § 10.5(n).

8 M.O., supra note 5; B.K., Docket No. 17-0406 (issued December 12, 2017).

9 20 C.F.R. § 10.529.
6

ANALYSIS -- ISSUE 1

The Board finds that appellant forfeited her right to compensation for the period 

December 12, 2014 to March 12, 2016, because she knowingly failed to report her employment 

activities and earnings. 

The EN1032 forms sent by OWCP to appellant advised her of her responsibility to 

complete the forms and provide all relevant information concerning her employment status and 

earnings during the 15-month period covered by the forms. The forms she signed noted that she 

must report all self-employment or involvement in business enterprises. This included such 

activities as overseeing a business of any kind, including involvement in any enterprise she owned. 

The explicit language of the EN1032 forms clearly advised appellant that the nature of her 

photography business10 and artistic promotion radio show and website11 required her to report such 

activities.

An EN1032 form signed by appellant on March 12, 2016, indicated that for the previous 

15 months she was involved in a business as creator of the website “All Eyes on the 215,” with 

actual earnings of $140.00. Appellant maintained that operating the enterprise had resulted in a 

$2,652.00 loss.

Appellant’s signing of a certification clause on the EN1032 form demonstrates that she was 

aware of the materiality of her failure to report her employment activity.12 

Information forwarded by the employing establishment includes an April 20, 2016 OIG 

investigative report in which appellant admitted operating the photography business “Jean Marie 

Creations” as well as the “All Eyes on the 215” website and online radio program. She admitted

receiving $4,100.00 in in-kind compensation from 2012 through 2016, performing $3,200.00 in 

photography services for two weddings in 2015 in exchange for business publicity, that she 

received $220.00 for photography services rendered to an OIG undercover agent, and had 

contracted with another OIG undercover agent to photograph a wedding for $3,200.00. 

Regarding the forfeiture period December 12, 2014 to March 12, 2016, on the EN1032 

form appellant signed on March 12, 2016, she reported $140.00 in earnings from her website “All 

Eyes on the 215,” but did not disclose that she also owned and operated the photography enterprise 

Jean Marie Creations. However, as noted above, her April 18, 2018 statements acknowledge that 

her photography business had generated in-kind business income by photographing two weddings 

in 2015. Appellant also failed to report the complete $220.00 payment from the OIG agent for 

photography services in February 2015 and shortly thereafter. She asserted in the April 18, 2016 

sworn statement that she mistakenly believed that she only had to report income earned in 2016, 

 

10 M.O., supra note 5. See also Donald L. Overstreet, 54 ECAB 678 (2003) (where the Board held that the 

claimant’s operation of a photography enterprise which received revenue was a business and not a hobby as alleged).

11 M.O., supra note 5; A.C. , Docket No. 11-1760 (issued April 13, 2012) (where the Board held that the claimant’s 

unpaid activities as an online radio disc jockey for a company he co-owned with a family member constituted 

reportable employment).

12 M.O., supra note 5; B.K., supra note 8.
7

but at the January 16, 2018 telephonic hearing that she reported only $140.00 as she deducted her 

expenses. These conflicting explanations cast doubt on the veracity of her statements. Appellant 

also prepared a detailed, multi-page professional contract as proprietor of Jean Marie Creations,

solicited by an OIG agent, to perform photography services at a June 2016 wedding. She failed to 

report her ownership and operation of Jean Marie Creations photography business and her in-kind 

earnings on the EN1032 form she signed on March 12, 2016.

In a similar case, I.S.,

13 the Board explained that the evidence of record included 

documentation of the claimant’s activities in owning and operating a jewelry business. Appellant’s 

misrepresentation of her earnings and activities on EN1032 forms required forfeiture of 

compensation. 

The EN1032 forms require reporting employment activities even if no wages are earned. 

Appellant’s activities included taking photographs at weddings and other events and arranging 

photo shoots. Thus, as appellant misrepresented her employment activity, the Board finds that 

based on her omissions of employment on Form EN1032 for the period December 12, 2014 to 

March 12, 2016, she knowingly failed to report employment activity and forfeited her right to 

compensation for the period December 12, 2014 to March 12, 2016.14

On appeal, counsel contends that it is inequitable for OWCP to predicate the forfeiture on 

an $80.00 discrepancy between the $220.00 appellant earned by performing photography services 

for the OIG agent and the $140.00 she reported on Form EN1032. He asserts that the difference 

was “simply a lack of knowledge of what portion of the rather limited earnings had to be reported.”

As noted above, the forfeiture was not based solely on the $80.00 discrepancy. Rather, appellant 

failed to report her employment activities and earnings during the reporting period December 12, 

2014 to March 12, 2016. As such, OWCP did not err in determining that appellant forfeited her 

right to compensation. 

LEGAL PRECEDENT -- ISSUE 2

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability or death of an employee resulting from personal injury sustained while in the 

performance of his or her duty.15 Section 8129(a) of FECA provides, in pertinent part, “When an 

overpayment has been made to an individual under this subchapter because of an error of fact or 

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by 

decreasing later payments to which an individual is entitled.”

16

 

13 Docket No. 17-0897 (issued April 9, 2018). See also Donald L. Overstreet, supra note 10.

14 M.O., supra note 5.

15 5 U.S.C. § 8102(a).

16 Id. at § 8129(a).
8

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

“(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 statutes.”

17

ANALYSIS -- ISSUE 2

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

$45,889.41. 

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

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

compensation.18 If a claimant has any employment, including self-employment or involvement in 

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

the 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.19 

The record includes a compensation payment log and calculation from OWCP showing 

that appellant received an overpayment of compensation in the amount of $45,889.41 for the 

period December 12, 2014 to March 12, 2016. The Board has reviewed the calculations performed 

by OWCP and finds that OWCP properly determined that she received an overpayment of 

compensation in the amount of $45,889.41.20

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.”

21

Section 10.433(a) of OWCP’s regulations provides 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 

 

17 20 C.F.R. § 10.529.

18 Id.

19 Id.

20 M.O., supra note 5.

21 5 U.S.C. § 8129; M.O., supra note 5; see Linda E. Padilla, 45 ECAB 768 (1994).
9

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

following will be found to be at fault in the creation of 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).”

22

To determine if an individual was at fault in 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.23

ANALYSIS -- ISSUE 3

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

of the overpayment, thereby precluding waiver of recovery of the overpayment. 

As discussed above, the record supports that appellant had employment activity for the 

periods covered by the EN1032 form she signed on March 12, 2016. 

The explicit language of the EN1032 form demonstratesthat appellant knew or should have 

known that the nature of her work activity in operating Jean Marie Creations would require her to 

report such employment activities and earnings on the forms.24 Appellant’s failure to accurately 

report her earnings and employment activities on the EN1032 form also constitutes a failure to 

provide information which she knew or should have known to be material in the creation of the 

overpayment.25 Consequently, she is not eligible for a waiver of recovery of the overpayment.

LEGAL PRECEDENT -- ISSUE 4

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

cases where OWCP seeks recovery from continuing compensation under FECA.26

 

22 20 C.F.R. § 10.433; M.O., supra note 5; see Sinclair L, Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

23 Id. at § 10.433(b); M.O., supra note 5; Duane C. Rawlings, 55 ECAB 366 (2004).

24 M.O., supra note 5; J.A., Docket No. 14-1863 (issued July 7, 2015).

25 M.O., supra note 5; B.K., supra note 8.

26 20 C.F.R. § 10.411; see E.K., Docket No. 18-0587 (issued October 1, 2018) (where the Board affirmed recovery 

of an overpayment from continuing compensation payments where the claimant did not submit requested financial 

information).
10

Section 10.441 of OWCP’s regulations provides that when an overpayment has been made 

to an individual who is entitled to further payments, the individual shall refund to OWCP the 

amount of the overpayment as soon as the error is discovered or his or her attention is called to the 

same. If no refund is made, OWCP shall decrease later payments of compensation, taking into 

account the probable extent of future payments, the rate of compensation, the financial 

circumstances of the individual and any other relevant factors, so as to minimize hardship.27

ANALYSIS -- ISSUE 4

The Board finds that OWCP properly required recovery of the overpayment of 

compensation at $310.00 a month from appellant’s continuing compensation.

As noted, appellant did not submit financial information corroborating her income, assets, 

and expenses. The overpaid individual is responsible for providing information about income, 

expenses, and assets as specified by OWCP.28 When an individual fails to provide requested 

financial information, OWCP should follow minimum collection guidelines designed to collect 

the debt promptly and in full.29 As appellant did not submit the financial information to OWCP 

as requested, the Board finds that OWCP did not abuse its discretion in requiring recovery of the 

$45,889.41 overpayment by deducting $310.00 every 28 days from appellant’s continuing 

compensation.30

CONCLUSION

The Board finds that appellant forfeited her right to compensation for the period 

December 12, 2014 to March 12, 2016, pursuant to section 8106(b)(2) of FECA, because she 

knowingly failed to report her employment activities and earnings. The Board further finds that 

she received an overpayment of compensation in the amount of $45,889.41. The Board also finds

that appellant was at fault in creation of the overpayment, thereby precluding waiver of recovery 

of the overpayment. The Board further finds that OWCP properly required recovery of the 

overpayment by deducting $310.00 every 28 days from her continuing compensation payments.

 

27 Id.

28 20 C.F.R. § 10.438; see E.K., supra note 26.

29 E.K., supra note 26; Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt 

Management, Initial Overpayment Actions, Chapter 6.200.4(c)(2) (May 2004). The May 2004 procedures were in 

effect as of the February 18, 2018 OWCP decision under consideration in this case. The Board notes that OWCP 

subsequently updated its overpayment collection procedures in FECA Transmittal 18-04, effective September 2018.

30 E.K., supra note 26.
11

ORDER

IT IS HEREBY ORDERED THAT the February 28, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 25, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board