United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Plainfield, IL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0209

Issued: September 18, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On November 6, 2018 appellant, through counsel, filed a timely appeal from a 

September 4, 2018 decision of the Office of Workers’ Compensation Programs (OWCP).2 The 

Clerk of the Appellate Boards docketed the appeal as No. 19-0209.3 

 

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 The Board notes that following the September 4, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure 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 

evidence for the first time on appeal. Id. 

3 During the pendency of this appeal, the Board issued a November 13, 2018 decision affirming OWCP’s 

February 1, 2018 schedule award decision. The issue of a schedule award is therefore not presently before the Board.
2

By decision dated February 28, 2018, OWCP found that appellant had forfeited 

compensation for the periods from February 21 through April 10, 2010 and May 15, 2010 through 

November 4, 2016 as she knowingly failed to report self-employment activities and earnings on

EN1032 forms, which indicated that for the past 15 months she had not worked, was not selfemployed, and was not involved in a business enterprise, and on claims for compensation (Form 

CA-7) for leave without pay. It noted that an investigation, initiated by the employing

establishment’s Office of the Inspector General (OIG) in 2016 regarding appellant’s employment 

activities, revealed that she was self-employed at Pierce’s Precious Puppies, a dog breeding service 

operated in her residence. On March 16, 2018 appellant, through counsel, requested a telephonic 

hearing with a representative of the OWCP Branch of Hearings and Review. 

OWCP made a preliminary determination finding that an overpayment of compensation in 

the amount of $103,563.25 was created due to the forfeiture of compensation for the periods from 

February 21 through April 10, 2010 and May 15, 2010 through November 4, 2016. It further 

found that appellant was at fault in the creation of the overpayment because she knowingly failed 

to report self-employment activities and earnings. 

By decision dated September 4, 2018, an OWCP hearing representative affirmed the 

February 28, 2018 forfeiture decision and finalized the preliminary determination regarding the 

fact and amount of overpayment and found that appellant was with fault in the creation of the 

overpayment in the amount of $103,563.25. In finding that a forfeiture and an overpayment of 

compensation had occurred, the amount of the overpayment, and that appellant was at fault in 

creating the overpayment, the hearing representative not only relied on the EN1032 and CA-7 

forms signed by appellant, but also relied on the OIG investigative report. It was noted that, “The 

OIG provided evidence dating back to 2008 documenting appellant’s activities and obtained 

statements from the customers of the business. The decision stated that, “The OIG report is 

incorporated herein by reference.” The hearing representative directed repayment of the 

overpayment by deducting $400.00 every 28 days from appellant’s continuing compensation 

payments. The hearing representative also directed OWCP to combine her claims in OWCP File 

Nos. xxxxxxx047 and xxxxxx660.4

The Board finds that while a January 27, 2011 Form EN1049, which informed appellant of 

her rights and responsibilities as a FECA benefits recipient, and appellant’s EN1032 and CA-7 

forms were listed as exhibits in the OIG investigative report and contained in the record, not all of 

the items listed as exhibits were transmitted to the Board. The Board, therefore, cannot verify the 

factual basis for the findings as to the nature and extent of business activities as found by the 

hearing representative in the September 4, 2018 decision.

OWCP’s procedures provide that all evidence that was before OWCP at the time it 

rendered its decision should be in the case record before the Board.5 To consider appellant’s appeal 

 

4 Following issuance of the hearing representative’s September 4, 2018 decision, OWCP administratively combined

OWCP File Nos. xxxxxx047 and xxxxxx660, with OWCP File No. xxxxxx660 serving as the master file. 

5 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(a) 

(June 2011).
3

in piecemeal fashion, as presented to the Board, could result in further inconsistent results.6 It is 

the Board’s policy to avoid such an outcome.7

Accordingly, the case will be remanded to OWCP for reconstruction of the record, 

including obtaining the exhibits listed in the OIG investigative report. Following reconstruction 

of the record, OWCP shall issue a de novo decision on the merits of the claim.8 Accordingly,

IT IS HEREBY ORDERED THAT the September 4, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this order of the Board.

Issued: September 18, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

6 See C.J., Order Remanding Case, Docket No. 18-1202 (issued March 8, 2019); A.B., Docket No. 17-1480 (issued 

June 8, 2018).

7

Id.; see also William T. McCracken, 33 ECAB 1197 (1982).

8 See C.J., supra note 5; G.R., Order Remanding Case, Docket No. 15-1047 (issued December 29, 2015).