United States Department of Labor

Employees’ Compensation Appeals Board

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T.P., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SHIPYARD, Philadelphia, PA, Employer

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Docket No. 20-0791

Issued: June 23, 2021

Appearances: Case Submitted on the Record

Peter Bryant, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 27, 2020 appellant filed a timely appeal from a September 3, 2019 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.

 

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

ISSUE

The issue is whether OWCP properly calculated that appellant received a $134,768.70

overpayment due to his forfeiture of compensation for the periods October 15, 1993 through

October 21, 1997 and January 1, 1998 through February 12, 2012.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

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

are as follows.

On September 22, 1966 appellant, then a 20-year-old machinist, filed an occupational 

disease claim (Form CA-2) alleging that he fractured a vertebra on that same date when he tripped 

over an air hose and fell down an inclined ladder. OWCP accepted the claim for a closed C1 

fracture. Appellant returned to limited-duty work on March 22, 1967, but claimed a recurrence of 

disability (Form CA-2a) as of September 25, 1967. It thereafter paid appellant wage-loss 

compensation for total disability. Appellant did not return to work. 

By decision dated August 18, 2016, OWCP determined that appellant had forfeited his 

right to compensation for the period January 15, 1993 through February 12, 2012 because he 

knowingly failed to report self-employment activities and also understated the amount of his 

weekly earnings on EN1032 forms. By decision dated September 27, 2016, it determined that he

received an overpayment of compensation in the amount of $139,848.73 because he forfeited his 

compensation from January 15, 1993 through February 12, 2012. OWCP found that appellant was 

at fault in the creation of the overpayment because he knowingly accepted payments that he knew 

he was not entitled to and he failed to furnish information, which he should have known to be 

material. It further determined that, therefore, the overpayment was not subject to waiver of 

recovery.

Appellant appealed to the Board and, by decision dated April 11, 2018,4the Board affirmed 

OWCP’s August 18 and September 27, 2016 decisions in part and set them aside in part. The

Board remanded the case to OWCP for further proceedings. The Board found that the 16 EN-1032 

forms signed by appellant established a forfeiture of compensation for the period October 15, 1993 

through October 21, 1997 and January 1, 1998 through February 12, 2012. Based upon these 

findings, the Board concluded that he “knowingly” omitted his earnings under section 8106(b)(2)

of FECA (5 U.S.C. § 8106(b)(2)) by failing to report his self-employment activities and earnings, 

as well as understating his earnings, for the periods October 15, 1993 through October 21, 1997

and January 1, 1998 through February 12, 2012, i.e., the portion of the forfeiture period covered 

by the 16 EN1032 forms submitted. The Board also found that OWCP failed to establish a 

forfeiture of compensation from January 15 through October 14, 1993. The Board further 

determined that there was no form or document in the record on which appellant knowingly failed 

 

3 Docket No. 17-0717 (issued April 11, 2018), petition for recon. denied, Docket No. 17-0717 (issued 

February 15, 2019).

4 See id.
3

to report employment activities or earnings for the period October 22 through December 31, 1997. 

The Board found that OWCP failed to establish that it provided him an EN1032 form covering 

this period and he did not address this period of employment on any of the submitted EN1032 

forms. Therefore, the Board set aside OWCP’s finding with respect to forfeiture for the period 

January 15 through October 14, 1993 and October 22 through December 31, 1997. The Board 

found that appellant forfeited his right to compensation for the periods October 15, 1993 through

October 21, 1997 and January 1, 1998 through February 12, 2012.

With respect to OWCP’s finding that, an overpayment of compensation was created, the 

Board found that OWCP properly determined that appellant was at fault in the creation of the 

overpayment, which occurred due to his forfeiture of compensation. The Board noted that the 

explicit language of the EN1032 forms clearly showed that he knew or should have known that 

the nature of his activities would require him to report such employment activities on the forms. 

The Board found that appellant’s failure to accurately report his earnings and employment 

activities on the EN1032 forms similarly constituted a failure to provide information, which he 

knew or should have known to be material. The Board found that, consequently, appellant was

not eligible for waiver of recovery of the overpayment, which OWCP had calculated to total 

$139,848.73 based on its forfeiture determination. The Board determined that, given its 

modification of OWCP’s forfeiture finding, the case had to be remanded to OWCP to recalculate 

the overpayment based on the forfeiture of compensation for the proper period as found by the 

Board. 

In an April 12, 2019 letter, which it characterized as a de novo preliminary finding, OWCP 

advised appellant that, pursuant to the Board’s April 11, 2018 decision, it had recalculated the 

overpayment to total $134,768.70. It provided detailed calculations showing that he received 

$4,020.25 in FECA compensation for the period January 15 through October 14, 1993 and 

$1,059.78 in FECA compensation for the period October 22 through December 31, 1997, i.e., the 

periods that the Board found that he did not forfeit compensation.5 OWCP noted that it subtracted 

$5,080.03 ($4,020.25 plus $1,059.78) from its previous overpayment amount of $139,848.73 to 

derive the new overpayment amount of $134,768.70. It further advised that the Board had affirmed 

its prior finding of fault in the creation of the overpayment, which precluded waiver of recovery of 

the overpayment, but also noted that it had made a preliminary determination that appellant was at 

fault in the creation of the overpayment. OWCP provided appellant 30 days to respond to its letter, 

no response was received within the afforded time period. 

By decision dated September 3, 2019, OWCP determined that appellant received a 

$134,768.70 overpayment of compensation due to his forfeiture of compensation for the periods 

October 15, 1993 through October 21, 1997 and January 1, 1998 through February 12, 2012. 

LEGAL PRECEDENT

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 

 

5 OWCP attached payment records in support of its recalculation of the overpayment. 
4

performance of his or her duty.6 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.”

7

ANALYSIS

The Board finds that OWCP properly calculated that appellant received a $134,768.70

overpayment of compensation due to his forfeiture of compensation for the periods October 15, 

1993 through October 21, 1997 and January 1, 1998 through February 12, 2012.

The Board notes that, in its April 11, 2018 decision, it remanded the case to OWCP for 

recalculation of the overpayment, previously determined to total $139,848.73, given that it had 

modified the basis for the overpayment when it determined that OWCP had only established 

appellant’s forfeiture of compensation for the periods October 15, 1993 through October 21, 1997

and January 1, 1998 through February 12, 2012. In its April 11, 2018 decision, the Board not only 

modified the period of forfeiture, which served as the basis for the overpayment, but also 

determined that he received an overpayment and was at fault in the creation of the overpayment, 

thereby precluding waiver of recovery of the overpayment. 

The Board has final authority to determine questions of law and fact. The Board’s 

determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon by 

the Director of OWCP.8 A decision of the Board is final upon the expiration of 30 days following 

the date of its order and, in the absence of new review by the Director, the subject matter is res 

judicata and not subject to further consideration by the Board.9 Therefore, the determinations the 

Board made in its April 11, 2018 decision regarding the forfeiture periods, the fact of the 

overpayment and the finding of fault precluding waiver of recovery of the overpayment are res 

judicata and not subject to further consideration by the Board.10 The only matter currently before 

the Board is whether OWCP, in its September 3, 2019 decision, properly recalculated the amount of 

the overpayment as instructed by the Board in its April 11, 2018 decision.

 

6 5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8 See Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84 (1949). See also Frank W. 

White, 42 ECAB 693 (1991) (Board’s order in a prior appeal imposed an obligation on the Director to take particular 

actions as directed). See L.C., Docket No. 09-1816 (issued March 17, 2010) (OWCP did not follow the Board’s 

instructions in ascertaining the information necessary to determine pay rate).

9 Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998). See 20 C.F.R. § 501.6(d). The Board notes that the Board 

denied appellant’s petition for reconsideration of the April 11, 2018 decision. See supra note 3.

10 In an April 12, 2019 letter produced after the Board’s April 11, 2018 decision, OWCP noted that it had made a 

preliminary determination that appellant was at fault in the creation of the overpayment. Given the Board’s finding that, 

on this issue, OWCP did not explain its basis for ostensibly revisiting the issue of fault. On appeal counsel argues that 

appellant was not at fault in the creation of the overpayment. However, the Board notes that, for the above-stated 

reasons, the issue of fault in the creation of the overpayment is not currently before the Board.
5

The Board finds that OWCP conducted a proper recalculation to determine that appellant 

received a $134,768.70 overpayment of compensation. As noted, the overpayment was created by 

appellant’s forfeiture of compensation for the periods October 15, 1993 through October 21, 1997

and January 1, 1998 through February 12, 2012 and is not subject to waiver. In connection with 

its recalculation, OWCP presented payment documents, which demonstrate that it properly 

recalculated the overpayment. It provided detailed calculations showing that appellant received 

$4,020.25 in FECA compensation for the period January 15 through October 14, 1993 and 

$1,059.78 in FECA compensation for the period October 22 through December 31, 1997, i.e., the 

periods that the Board found he did not forfeit compensation. OWCP noted that it subtracted 

$5,080.03 ($4,020.25 plus $1,059.78) from its previous overpayment figure of $139,848.73 to 

derive the new overpayment amount of $134,768.70. The Board has reviewed the payment 

documents of record and notes that they show that appellant received $134,768.70 in FECA 

compensation during the periods that he forfeited compensation, i.e., October 15, 1993 through

October 21, 1997 and January 1, 1998 through February 12, 2012. Therefore, the Board finds that

the case record supports the finding that OWCP properly calculated the overpayment in the amount 

of $134,768.70.

CONCLUSION

The Board finds that OWCP properly calculated that appellant received a $134,768.70 

overpayment of compensation due to his forfeiture of compensation for the periods October 15, 

1993 through October 21, 1997, and January 1, 1998 through February 12, 2012.
6

ORDER

IT IS HEREBY ORDERED THAT the September 3, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 23, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board