United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Marshfield, VT, Employer

__________________________________________

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Docket No. 19-0051

Issued: August 20, 2019

Appearances: Case Submitted on the Record

Patricia K. Turley, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 9, 2018 appellant, through counsel, filed a timely appeal from a May 3, 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.3

 

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.

3 The Board notes that, following the May 3, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedures provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id. 
2

ISSUE

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

wage-loss compensation for the periods November 29, 2013 to July 7, 2014 and July 26, 2014 to 

June 25, 2015 as he knowingly failed to report employment activities and earnings, pursuant to 5 

U.S.C. § 8106(b).

FACTUAL HISTORY

This case has been previously before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On October 18, 2013 appellant, then a 44-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 12, 2013 he pulled muscles in his neck, shoulder, and 

upper back while in the performance of duty. OWCP accepted the claim for a sprain of the neck 

and left shoulder, a left superior glenoid labrum lesion, and a disorder of bursae and tendons in the 

left shoulder region. 

On December 17, 2013 appellant filed a claim for compensation (Form CA-7) requesting 

wage-loss compensation for the period November 29 to December 13, 2013. The form advised 

him that he must report any and all earnings from employment, self-employment, or involvement 

in a business enterprise for which he received a salary, wages, income, commissions, or payment 

of any kind during the period(s) claimed. Appellant signed the form and indicated that he had not 

performed work outside of his federal job for the period claimed. 

Appellant additionally submitted CA-7 forms requesting wage-loss compensation for total 

disability for the periods November 29, 2013 to June 13, 2014 and July 26 through 

September 14, 2014. He indicated on the forms that he had not worked during the periods claimed. 

OWCP paid appellant wage-loss compensation for total disability for the period 

November 29, 2013 to September 20, 2014 on the supplemental rolls. 

In a July 7, 2014 Form EN1032, appellant advised that he had been self-employed for the 

preceding 15-month period as co-owner/manager of Hilltop Auto Body. He maintained that he 

had not participated in the business enterprise since his October 12, 2013 employment injury. 

Appellant indicated that he had not received pay or actual earnings from the business. 

Appellant returned to part-time modified employment on September 26, 2014.5 He 

submitted claims for compensation (Form CA-7) requesting wage-loss compensation for 

intermittent periods of disability from employment from October 7, 2014 to July 24, 2015. 

 

4 Docket No. 16-1379 (issued August 4, 2017).

5 From May 4 through September 20, 2014, appellant was paid compensation on the periodic rolls. Wage-loss 

compensation payments before and after this period were paid on the supplemental rolls pursuant to CA-7 forms filed 

by appellant. 
3

Appellant indicated on the forms either that he had not worked during the period claimed or failed 

to respond to the question. 

OWCP paid appellant compensation for intermittent time lost from work from 

September 21, 2014 until July 24, 2015.

In a case summary report covering January 30 to October 4, 2014, the employing 

establishment’s Office of the Inspector General (OIG) advised that insurance companies had 

written checks to appellant or Hilltop Auto Body from October 2013 to March 2014. It provided 

supporting documentation, including estimates provided by Hilltop Auto Body to insurance 

companies, copies of payments made directly to him based on the estimates, and invoices from 

Hilltop Auto Body to customers listing him as the point of contact.

In an addendum dated December 10, 2014, covering the period October 5 to December 4, 

2014, the OIG submitted interviews from witnesses identifying appellant as the owner of Hilltop 

Auto Body. It related that bank account statements established that he used a sole proprietorship 

account for Hilltop Auto Body with deposits for April through July 2014 totaling $127,992.00. 

The OIG submitted evidence showing that Hilltop Auto Body deposited over $29,000.00 in 

payments from March to May 2014 and $127,992.00 from April through July 2014. 

A 2013 Schedule C, Profit or Loss from Business tax form completed by appellant showed 

that Hilltop Auto Body had gross sales of $217,861.00 and gross income of $94,577.00. He listed 

a net loss on the form of $31,638.00. Appellant identified himself on the form as a sole proprietor 

of Hilltop Auto Body. He responded “yes” to the question on the form of whether he materially 

participated in the operation of the business in 2013. 

In a July 7, 2015 addendum, the OIG submitted deposit slips and checks made out to either 

appellant or Hilltop Auto Body dated July 16, 2014 to May 18, 2015 and invoices through 

June 2015. It provided a 2014 Schedule C tax form completed by him as the sole proprietor of 

Hilltop Auto Body showing gross sales of $246,455.00 and gross income as $112,604.00. 

Appellant responded “yes” to the question on the form of whether he materially participated in the 

business during that year. He claimed a net loss from the business of $7,653.00.

By decision dated July 23, 2015, OWCP found that appellant had forfeited his entitlement 

to compensation for the period November 29, 2013 to June 25, 2015 because he knowingly failed 

to disclose his outside earnings and employment pursuant to 5 U.S.C. § 8106(b). It determined 

that he had failed to fully disclose his earnings and employment on a July 7, 2014 EN1032 form 

covering the period April 7, 2013 through July 7, 2014 and had failed to disclose employment on 

CA-7 forms covering the period July 26, 2014 through June 25, 2015.

On July 23, 2015 OWCP advised appellant of its preliminary determination that he had 

received a $50,802.10 overpayment of compensation as he forfeited entitlement to compensation 

from November 29, 2013 through June 25, 2015 and that he was at fault in its creation. 

On August 20, 2015 appellant requested a telephonic conference regarding the preliminary 

determination of overpayment. He challenged fact and amount of overpayment and the finding 

that he was at fault in its creation. Appellant asserted that he worked less than three or four hours 

per week performing managerial duties and had no earnings. 
4

On October 5, 2015 appellant, through counsel, requested reconsideration of the July 23, 

2015 forfeiture decision. In an accompanying September 18, 2015 statement, counsel argued that

appellant had properly completed the CA-7 forms as he had not received a salary, wages, income, 

or other payments and reported his employment on the EN1032 form. She contended that his work 

was passive, that he spent four or five hours per week on managerial duties, and that his expenses 

were greater than his income. Counsel maintained that the investigative report demonstrated bias 

as it failed to provide complete information. 

In a September 27, 2015 affidavit, appellant advised that he believed that he had no 

earnings. He maintained that he performed no repair work and had no taxable earnings.

In a May 3, 2016 memorandum of telephone conference regarding the preliminary 

overpayment determination, counsel advised that appellant had reported that he co-owned a 

business and asserted that his involvement was passive in nature. She also contended that his 

business operated at a loss and thus had not generated income. 

By decision dated March 24, 2016, OWCP found that appellant had received an 

overpayment of compensation in the amount of $50,802.10 from November 29, 2013 through 

June 25, 2015 as he forfeited his entitlement to compensation for this period. It further determined 

that he was at fault in creating the overpayment. OWCP instructed appellant to forward a check 

for the full amount of the overpayment as repayment.

Appellant appealed the March 24, 2016 overpayment determination to the Board. 

By decision dated August 4, 2017, the Board affirmed in part and set aside in part the 

March 24, 2016 decision.6 The Board found that appellant had received an overpayment of 

compensation, but that the case was not in posture for determination regarding the amount of the 

overpayment as the evidence was insufficient to support that he forfeited his entitlement to 

compensation for the period July 7 to 26, 2014. The Board noted that there was no EN1032 form 

or CA-7 form in the record covering this period. The Board determined that appellant had forfeited 

his entitlement to compensation for the periods November 29, 2013 through July 7, 2014 and 

July 26, 2014 through June 25, 2015 as he knowingly failed to report earnings or employment 

activities and thus had received an overpayment of compensation during these periods. The Board 

further found that he was at fault in the creation of the overpayment of compensation and thus not 

entitled to waiver of recovery of the overpayment.

On February 15, 2018 counsel telephoned OWCP regarding the status of appellant’s

request for reconsideration of the July 23, 2015 forfeiture decision.7 

On March 7, 2018 OWCP requested that counsel again file her September 18, 2015 request 

for reconsideration and provide any additional arguments following review of the Board’s 

August 4, 2017 decision. 

 

6 Supra note 4.

7 OWCP issued a January 19, 2018 preliminary overpayment determination finding that appellant had received an 

overpayment of wage-loss compensation in the amount of $48,435.90 because he forfeited compensation for the 

periods November 29, 2013 to July 7, 2014 and July 26, 2014 to June 25, 2015. 
5

On March 13, 2018 appellant, through counsel, resubmitted the September 18, 2015 

reconsideration request. Appellant further submitted a November 26, 2016 arbitration decision 

finding that the employing establishment lacked just cause to remove him for failing to report his 

outside work to OWCP. The arbitrator modified the disciplinary action to a 30-day suspension 

with back pay as appropriate. She found that the record established that appellant had received 

financial benefit from work outside the employing establishment which he failed to report on 

forms, and thus found “just cause to discipline the grievant for misconduct.” The arbitrator

determined, however, that the discipline was excessive as he had acknowledged his outside work 

on an EN1032 form and as the employing establishment had actual knowledge that he owned an 

auto body shop. The arbitrator found that appellant had failed to report his income, but without 

the intent to conceal his employment.

Counsel also submitted a December 15, 2016 letter in which she argued that the arbitrator 

had ruled favorably on some issues, including that appellant had not concealed his employment 

and that any earnings were minor compared with his salary from the employing establishment. 

By decision dated May 3, 2018, OWCP vacated in part, modified in part, and affirmed in 

part its July 23, 2015 forfeiture determination. It indicated that it had reopened appellant’s claim 

for reconsideration of the forfeiture upon the expiration of the Board’s jurisdiction over the case. 

OWCP noted that, with his reconsideration request, he had submitted evidence previously

reviewed by the Board in reaching its findings regarding the overpayment of compensation based 

on the forfeiture decision. It also indicated that appellant had submitted an arbitrator’s decision 

modifying his removal from the employing establishment for failing to report outside employment 

to OWCP to a 30-day suspension. OWCP found that the evidence supported that he knowingly 

failed to report employment earnings and activities from November 29, 2013 through July 7, 2014 

and July 26, 2014 through June 25, 2015 and thus forfeited his entitlement to compensation for 

this period. It vacated its finding in the July 23, 2015 decision that appellant had forfeited 

entitlement to compensation from July 7 to 26, 2014 as there was no Form CA-7 or EN1032 

covering that period. OWCP noted that he had to report earnings and employment activities even 

if his business operated at a loss or he did not receive a salary.

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 earnings, forfeits his right 

to compensation with respect to any period for which the affidavit or report was required.8

An employee, however, can only be subjected to the forfeiture provision of 5 U.S.C. § 8106 

if he or she knowingly failed to report employment or earnings. It is not enough to merely establish 

that there were unreported earnings. The Board has recognized that forfeiture is a penalty, and, as 

 

8 5 U.S.C. § 8106(b).
6

a penalty provision, it must be narrowly construed.9 The term knowingly is defined within 

OWCP’s regulations as with knowledge, consciously, willfully, or intentionally.10

OWCP regulations define earnings from employment or self-employment as: (1) gross 

earnings or wages before any deductions and includes the value of subsistence, quarters, 

reimbursed expenses and any offer 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.11 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.12

ANALYSIS

The Board finds that appellant forfeited his entitlement to wage-loss compensation for the 

periods November 29, 2013 to July 7, 2014 and July 26, 2014 to June 25, 2015 as he knowingly 

failed to report employment activities and earnings.

Preliminarily, the Board notes that it is unnecessary to consider the evidence prior to the 

issuance of OWCP’s March 24, 2016 decision as it reviewed that evidence in its August 4, 2017 

decision. Based on its consideration of the evidence, the Board found that appellant had received 

an overpayment of compensation due to his forfeiture of his entitlement to compensation for the 

periods November 29, 2013 to July 7, 2014 and from July 26, 2014 to June 25, 2015 as he 

knowingly failed to report earnings and employment activities. Findings made based on evidence 

reviewed in prior Board decisions are res judicata absent further review and reconsideration by 

OWCP under section 8128 of FECA.13 

In a statement dated September 18, 2015, appellant contended that he had properly 

completed the CA-7 forms, that his work was passive and consisted of managerial duties not 

exceeding four or five hours per week, and that his expenses from the business exceeded his 

income. He submitted a September 27, 2015 affidavit maintaining that he had not performed repair 

work, had no taxable income, and did not believe that he had earnings. Again, however, the Board 

previously considered these arguments in its prior decision, and thus the matter is res judicata.

14

In a December 15, 2016 statement, appellant maintained that an arbitrator had found that 

he had not concealed his employment and that any earnings were minor when compared with his 

salary from the employing establishment. He submitted a November 26, 2016 arbitration decision. 

The arbitrator determined that the employing establishment lacked proper cause for removing 

appellant from employment based on his failure to report his outside work to OWCP. The 

 

9 P.H., Docket No. 17-1362 (issued March 13, 2018).

10 20 C.F.R. § 10.5(n); R.A., Docket No. 18-0406 (issued January 28, 2019).

11 Id. at § 10.5(g).

12 Id.

13 See C.B., Docket No. 19-0175 (issued May 8, 2019); V.P., Docket No. 18-1815 (issued April 22, 2019).

14 J.F., Docket No. 18-1802 (issued May 20, 2019).
7

arbitrator found that he had received a financial benefit from outside employment which he had 

failed to report and that the employing establishment consequently had cause to issue discipline 

for misconduct. However, she modified the removal to a 30-day suspension with back pay as 

appropriate after finding that the removal was excessive given that the employing establishment 

had actual knowledge of his outside work and as he reported his work on an EN1032 form. The 

arbitrator determined that appellant had failed to report his income, but without the intent to 

conceal his employment. It is well established, however, that decisions of other federal agencies 

or governmental bodies are not dispositive to issues raised under FECA. Decisions made by such 

tribunals are pursuant to different statues which have varying standards.15

On appeal counsel asserts that appellant disclosed his employment activities, that he had 

not earned income from employment, and that the forfeiture decision violated his right to due 

process. As discussed, however, he knowingly failed to report earnings during the period in 

question and thus forfeited his right to compensation for the periods November 29, 2013 to July 7,

2014 and July 26, 2014 to June 24, 2015.16 Further, regarding appellant’s due process claim, as 

an administrative body the Board does not have jurisdiction to review a constitutional claim.17

CONCLUSION

The Board finds that appellant forfeited his entitlement to wage-loss compensation for the 

periods November 29, 2013 to July 7, 2014 and from July 26, 2014 to June 25, 2015 as he 

knowingly failed to report employment activities and earnings pursuant to 5 U.S.C. § 8106(b).

 

15 See C.S., Docket No. 16-1784 (issued May 7, 2018); F.M., Docket N. 15-1869 (issued May 4, 2016).

16 See M.O., Docket No. 18-0686 (issued January 25, 2019).

17 See Woodruff v U.S. Department of Labor, 954 f2d 634 (11th Cir. 1992); see also C.D., Docket No. 17-1915 

(issued February 21, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the May 3, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 20, 2019

Washington, DC

Christopher J. Godfrey, 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