United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.J., Appellant

and

U.S. POSTAL SERVICE, MORRISANIA 

STATION, Bronx, NY, Employer

__________________________________________

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Docket No. 20-0376

Issued: May 11, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On December 6, 2019 appellant filed a timely appeal from a November 5, 2019 merit

decision and a July 19, 2019 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP).1 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 the case.3

 

1 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). However by 

letter dated January 28, 2020, appellant withdrew his request for an oral argument.

2 5 U.S.C. § 8101 et seq. 

3 The Board notes that following the November 5, 2019 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 

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

ISSUES

The issues are: (1) whether OWCP properly determined that appellant forfeited his 

entitlement to wage-loss compensation for the period July 3, 2008 through October 19, 2011 as he 

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

(2) whether OWCP properly determined that appellant abandoned his request for an oral hearing 

with respect to his termination of wage-loss compensation and schedule award benefits pursuant 

to section 8106(c) of FECA, effective March 6, 2019.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.

4

 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 13, 2004 appellant, then a 32-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 27, 2004 he injured his left knee while delivering mail 

in the performance of duty. He stopped work on the date of injury. On October 6, 2004 OWCP 

accepted the claim for left patella dislocation. It subsequently expanded the acceptance of the 

claim to include left closed patella fracture and tear of medial meniscus of left knee. OWCP paid 

appellant wage-loss compensation on the periodic rolls as of December 26, 2004.

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

EN1032 forms. The language on the forms clearly explained appellant’s obligation to report to 

OWCP his outside employment and earnings during the period in which he also received 

compensation benefits and that he could be subject to civil and criminal penalties, as well as 

forfeiture of compensation for the period covered by the form, if he failed to do so. The first Form 

EN1032 was signed by appellant on March 30, 2007 and covered all employment activities and 

earnings for the period 15 months prior to the date appellant signed the form. On EN1032 forms 

signed January 12, 2009, October 2, 2009, October 19, 2010, and October 19, 2011, appellant 

responded “no” under Part A (employment), Question 1 as to whether he worked for any employer 

during the past 15 months. The remaining sections of Question 1 were left blank. Appellant also 

indicated “yes” or left blank Question 3 that he was unemployed for all periods during the past 15 

months.

5

By report dated November 6, 2017, Dr. Goldman noted the history of injury and his review 

of the medical record and statement of accepted facts. He indicated that appellant was using a 

cane and described examination findings of decreased left knee range of motion and quadriceps 

 

4 Docket No. 18-1428 (issued March 5, 2019).

5 OWCP referred appellant for a June 5, 2017 second opinion examination with Dr. Arnold Goldman, a Boardcertified orthopedic surgeon. Appellant did not attend the scheduled examination. By decision dated July 20, 2017,

OWCP suspended his compensation benefits, effective July 23, 2017, pursuant to 5 U.S.C. § 8123(d) for failure to 

attend the appointment with Dr. Goldman. Its decision was affirmed by an OWCP hearing representative on 

April 24, 2018. Appellant subsequently filed a timely appeal with the Board which was affirmed by decision dated 

March 5, 2019 in Docket No. 18-1428. He attended the medical examination, and his periodic roll compensation was 

reinstated, effective October 4, 2017.
3

and calf atrophy on the left. Dr. Goldman diagnosed status-post left knee internal derangement, 

which was causally related to the employment injury. He advised that appellant’s complaints 

corresponded to his objective findings and that he could not return to a letter carrier position, but 

could perform light duty. In an attached work capacity evaluation (Form OWCP-5c), Dr. Goldman 

advised that appellant had permanent restrictions limiting walking, twisting, bending, stooping, 

operating a motor vehicle, and squatting to four hours daily, standing, and kneeling to two hours 

daily, with no climbing, and he was to have 15- to 20-minute breaks one to two times daily, with 

a 15-pound restriction on pushing, pulling, lifting, squatting, and kneeling. 

During the pendency of appellant’s appeal on June 8, 2018 the employing establishment 

informed OWCP that on May 16, 2018 it had offered appellant a permanent position as a sales and 

service distribution associate that was within Dr. Goldman’s restrictions. It informed OWCP that 

appellant had refused the position. 

OWCP also received an August 22, 2018 investigative report from the employing 

establishment’s Office of Inspector General (OIG), which related its findings regarding appellant’s 

work activities while using a social security number of another individual and while in receipt of 

workers’ compensation. It found that: in the first quarter of 2009, while off work receiving 

workers’ compensation benefits, appellant received approximately $103.13 in wages from Global 

Security Services, Mineola, NY and approximately $1,305.00 in wages from Newton County 

School System, Newton County, GA. In the second quarter of 2009, appellant received $165.00 

in wages from Global Security services and $2,600.00 from Newton County School System. In 

the third and fourth quarters of 2009, he received approximately $3,455.00 in wages from Newton 

County School System. In the first quarter of 2010, appellant received approximately $1,922.50 

and $1,831.78 in wages from Newton and Groome Transportation, respectively. In the second 

quarter of 2010, he received approximately $1,593.35 in wages from Groome Transportation. In 

the third and fourth quarters of 2010, appellant received $2,122.00 in wages from Groome 

Transportation. In 2010, he filed for unemployment benefits with the State of Georgia’s 

Department of Labor. Appellant received approximately $1,968 in unemployment benefits. In 

the first and second quarters of 2011, he received approximately $3,745.00 in wages from Newton. 

From August 2010 until February 2012, appellant received approximately $4,093 in 

unemployment benefits from the State of Georgia. Copies of the pay records noting his above 

wages received under another individual’s social security number were attached.

By letter dated August 28, 2018, OWCP advised appellant that the position offered was 

suitable. It notified him that, if he failed to report to work or failed to demonstrate that the failure 

was justified, pursuant to section 8106(c)(2) of FECA, his right to compensation for wage loss or 

a schedule award would be terminated. OWCP afforded appellant 30 days to respond. In an 

undated letter, received by OWCP on September 27, 2018, appellant maintained that he could not 

fulfill the duties of the offered position, based on the opinion of his treating physician, whom he 

saw annually. By letter dated October 2, 2018, OWCP informed him that he should provide a 

detailed medical report within the next 30 days. The letter included a set of questions that the 

physician should complete. A November 2, 2018 memorandum of telephone call (Form CA-110) 

indicated that the employing establishment informed OWCP that the offered position remained 

available. In a November 5, 2018 report, Dr. Jonathan J. Silver, a Board-certified orthopedic 

surgeon, noted seeing appellant for yearly follow up. He described physical examination findings

including mild left knee tenderness and patellofemoral crepitus. Dr. Silver diagnosed bilateral 
4

knee arthritis, worse on the left, and advised that appellant should avoid prolonged periods of 

impact-loading activity. He concluded that appellant was totally disabled. On December 20, 2018 

OWCP advised him that his reasons for refusing the offered position were not valid. It afforded 

appellant an additional 15 days to accept the position. On January 14, 2019 the employing 

establishment informed OWCP that he had not returned to work, and on January 31, 2019 advised 

that the offered position remained available. By decision dated March 5, 2019, OWCP terminated 

appellant’s wage-loss compensation and schedule award benefits pursuant to section 8106(c) of 

FECA, effective March 6, 2019.

In correspondence dated March 15, 2018, appellant requested an oral hearing before a

representative of OWCP’s Branch of Hearings and Review regarding the March 5, 2019 

termination decision.

By decision dated April 12, 2019, OWCP found that appellant forfeited his compensation 

from July 21, 2008 through October 19, 2011. It found that he failed to report earnings from his 

outside employment in the EN1032 forms he had signed on October 2, 2009, October 19, 2010 

and October 19, 2011 which covered the period listed. OWCP further found that as appellant 

“knowingly” failed to report his outside earnings on his EN1032 forms, signed October 2, 2009, 

October 19, 2010 and October 19, 2011, his wage-loss compensation was forfeited for the 

15-month period prior to the date he signed the EN1032 forms. It calculated that it had paid 

appellant $112,260.05 in wage-loss compensation for the period July 21, 2008 through 

October 19, 2011. OWCP additionally noted that the forfeiture would be declared an overpayment 

of benefits subject to recovery under 5 U.S.C. § 8129. 

By decision April 12, 2019, OWCP issued a preliminary determination that an 

overpayment of $112,260.05 was created for the period July 21, 2008 through October 19, 2011 

due to appellant’s failure to disclose earnings from outside employment on the EN1032 forms 

signed on October 2, 2009, October 19, 2010, and October 19, 2011. It found him at fault in the 

creation of the overpayment as he failed to provide information he knew, or should have known, 

to be material. OWCP requested that appellant complete the enclosed overpayment recovery 

questionnaire (Form OWCP-20) and submit supporting financial documents. Additionally, it 

notified him that, within 30 days of the date of the letter, he could request a telephone conference, 

a final decision based on the written evidence, or a prerecoupment hearing.

In an amended forfeiture decision dated April 16, 2019, OWCP found that appellant 

knowingly failed to report his earnings from outside employment for the period July 3, 2008 

through October 19, 2011, as evidenced on the Form EN1032 he signed on October 2, 2009, 

October 19, 2010, and October 19, 2011.

Also, on April 16, 2019, OWCP issued an amended preliminary overpayment 

determination solely with respect to adjustment of the overpayment period and amount. It made 

the preliminary finding that an overpayment of $114,004.15 had been created for the period July 3, 

2008 through October 19, 2011 as he had forfeited compensation benefits which were paid to him 

during that period. OWCP further found appellant at fault in creation of the overpayment as he 

knowingly failed to report his earnings from outside employment on the Form EN1032 signed on 

October 2, 2009, October 19, 2010, and October 19, 2011 while in receipt of compensation 

benefits. It requested that he complete the enclosed overpayment recovery questionnaire (Form 
5

OWCP-20) and submit supporting financial documents. Additionally, OWCP notified appellant 

that, within 30 days of the date of the letter, he could request a telephone conference, a final 

decision based on the written evidence, or a prerecoupment hearing.

On May 10, 2019 appellant requested an oral hearing on OWCP’s April 16, 2019 forfeiture 

decision and a prerecoupment hearing on OWCP’s April 16, 2019 preliminary overpayment 

determination before a representative of OWCP’s Branch of Hearings and Review. A completed 

Form OWCP-20 was submitted. 

On May 20, 2019 OWCP informed appellant of the time and location of his oral hearing 

scheduled for July 8, 2019 at 9:45 a.m. Eastern Standard Time (EST) regarding OWCP’s March 5, 

2019 termination decision. It mailed the notice to appellant’s last known address of record and 

provided instructions on how to participate. Appellant did not appear at the hearing or request 

postponement of the hearing. 

In a July 16, 2019 notice, OWCP’s hearing representative informed appellant of the time 

and location of his oral hearing scheduled for August 23, 2019 at 11:00 a.m. The subject of the 

hearing was OWCP’s April 16, 2019 forfeiture decision. 

By decision dated July 19, 2019, OWCP found that appellant had received written notice 

30 days in advance of the hearing scheduled for July 8, 2019 regarding OWCP’s March 5, 2019 

termination decision, and that he failed to appear for the oral hearing. It further found that there 

was no indication in the record that appellant had contacted the Branch of Hearings and Review 

either prior to or subsequent to the scheduled hearing to explain his failure to appear. OWCP

determined that he had therefore abandoned his hearing request.

On August 22, 2019 appellant requested a review of the written record in lieu of an oral 

hearing with regard to OWCP’s April 16, 2019 forfeiture decision. 

By decision dated November 5, 2019, an OWCP hearing representative affirmed OWCP’s 

April 16, 2019 forfeiture decision that appellant knowingly failed to report earnings from

employment for the period July 3, 2008 through October 19, 2011 which resulted in forfeiture of 

compensation benefits for that period.6 

LEGAL PRECEDENT -- ISSUE 1

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 her earnings, forfeits his or her 

right to compensation with respect to any period for which the affidavit or report was required.7

 

6 However, the hearing representative vacated the April 12, 2019 preliminary overpayment determination finding 

that a new preliminary determination must be issued to reflect the corrected forfeiture period July 3, 2008 through 

October 19, 2011. The case was remanded to OWCP for the issuance of a preliminary determination and recalculation 

of the amount of overpaid compensation for the period July 3, 2008 through October 19, 2011.

7 5 U.S.C. § 8106(b).
6

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.8 OWCP procedures recognize that forfeiture is a penalty,9

and, as a penalty provision, it must be narrowly construed.10 The term knowingly is defined within 

OWCP’s regulations as with knowledge, consciously, willfully, or intentionally.11

OWCP can, in several ways, meet its burden of proof in establishing that a claimant 

“knowingly” failed to report employment or earnings. This includes the claimant’s own admission 

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

reported, or establishing that the claimant has pled guilty to violating applicable federal statutes 

by falsely completing the affidavits in the EN1032 form.12 The inquiry is whether appellant 

knowingly omitted or understated her earnings from employment for the periods covered by the 

EN1032 forms. The term “knowingly” as defined in OWCP’s implementing regulations and 

Board precedent means “with knowledge, consciously, intelligently, willfully, and 

intentionally.”

13

 The language on OWCP EN1032 forms is clear and unambiguous in requiring a 

claimant to report earnings for the previous 15 months from any employer, 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.14

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that appellant forfeited his entitlement to 

wage-loss compensation for the period July 3, 2008 through October 19, 2011 as he knowingly 

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

On EN1032 forms signed on October 2, 2009, October 19, 2010, and October 19, 2011,

which covered the 15-month period prior to the date of signature, appellant denied working, 

provided no information regarding his work activity, and made no mention of his earnings from 

any such outside work activity. Appellant’s signing of a strongly worded certification clause on 

each of the EN1032 forms demonstrates that he was aware of the materiality of his failure to report 

his employment.15

 

8 T.G., Docket No. 19-0051 (issued August 20, 2019); P.H., Docket No. 17-1362 (issued March 13, 2018).

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

10 See M.G., Docket No. 20-0735 (issued October 23, 2020); Christine P. Burgess, 43 ECAB 449 (1992).

11 20 C.F.R. § 10.5(n); R.A., Docket No. 18-0406 (issued January 28, 2019); Anthony A. Nobile, 44 ECAB 

268 (1992).

12 I.S., Docket No. 17-0897 (issued April 9, 2018); Robert Ringo, 53 ECAB 258 (2001).

13 I.S., id.; see also Joan Ross, 57 ECAB 694 (2006).

14 Id. 

15 See B.K., Docket No. 17-0406 (issued December 12, 2017).
7

In an August 20, 2018 investigative report by the employing establishment’s OIG, the 

evidence revealed that appellant worked and earned money or collected unemployment during the 

period July 3, 2008 through October 19, 2011 by using a social security number of another 

individual. The investigative report found, and the related exhibits substantiated, that from the 

first quarter of 2009 until February 2012, appellant earned wages while using another individual’s 

social security number from Global Security Services, Newton County School System and Groome 

Transportation. Appellant additionally received unemployment benefits from the State of 

Georgia’s Department of Labor also under another individual’s social security number in 2010, 

the first and second quarters of 2011, and from August 2010 until February 2012. He, however,

failed to disclose such outside employment earnings to OWCP, as evidenced by his EN1032 forms 

dated October 2, 2009, October 19, 2010, and October 19, 2011, which cover the relevant period 

of July 3, 2008 through October 19, 2011. 

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 has had unreported earnings from employment, which were knowingly not 

reported.16

In this case, the Board finds that the evidence of record establishes that appellant failed to 

report outside employment and unemployment benefits on EN1032 forms he signed on October 2, 

2009, October 19, 2010, and October 19, 2011 which covered the 15-month period prior to the 

date he signed the EN1032 forms and cover the period listed. The Board thus finds that OWCP 

properly invoked the penalty provision under 5 U.S.C. § 8106(b) to find forfeiture of appellant’s 

entitlement to compensation for the period July 3, 2008 through October 19, 2011.17

LEGAL PRECEDENT -- ISSUE 2

A claimant who has received a final adverse decision by OWCP may obtain a hearing by 

writing to the address specified in the decision within 30 days of the date of the decision for which 

a hearing is sought.18 Unless otherwise directed in writing by the claimant, OWCP’s hearing 

representative will mail a notice of the time and place of the hearing to the claimant and any 

representative at least 30 days before the scheduled date.19 OWCP has the burden of proof to 

establish that it properly mailed to a claimant and any representative of record a notice of a 

scheduled hearing.20 

 

16 R.M., Docket No. 13-2169 (issued August 26, 2014); B.Y., Docket No. 11-1798 (issued July 24, 2012); Louis P. 

McKenna, Jr., 46 ECAB 328 (1994).

17 M.G., Docket No. 20-0735 (issued October 23, 2020); see G.Z., Docket No. 16-0892 (issued May 19, 2017); see 

also E.V., Docket No. 15-0803 (issued October 15, 2015).

18 20 C.F.R. § 10.616(a).

19 Id. at § 10.616(b).

20 J.H., Docket No. 20-0023 (issued September 16, 2020); T.R., Docket No. 19-1952 (issued April 24, 2020); R.C., 

59 ECAB 521 (2008).
8

A claimant who fails to appear at a scheduled hearing may request in writing, within 10 

days after the date set for the hearing, that another hearing be scheduled. Where good cause for 

failure to appear is shown, another hearing will be scheduled and conducted by teleconference. 

The failure of the claimant to request another hearing within 10 days, or the failure of the claimant 

to appear at the second scheduled hearing without good cause shown, shall constitute abandonment 

of the request for a hearing.21

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly determined that appellant abandoned his request for 

an oral hearing before an OWCP hearing representative with respect to his termination of wageloss compensation and schedule award benefits pursuant to section 8106(c) of FECA, effective 

March 6, 2019. 

The record establishes that appellant filed a timely request for an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review following its March 5, 2019 

termination decision. On May 20, 2019 a hearing representative notified appellant that it had 

scheduled a hearing to be held on July 8, 2019 at 9:45 a.m. EST. The hearing representative 

properly mailed the hearing notice to appellant’s last known address of record and provided 

instructions on how to participate.22 Appellant failed to appear at the hearing scheduled for 

July 8, 2019. He did not request a postponement or provide an explanation to OWCP for his failure 

to attend the hearing within 10 days of the scheduled hearing. The Board thus finds that OWCP 

properly determined that appellant abandoned his request for an oral hearing.23

CONCLUSION

The Board finds that OWCP properly determined that appellant forfeited his entitlement to 

wage-loss compensation for the period July 3, 2008 through October 19, 2011 as he knowingly 

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

further finds that OWCP properly determined that appellant abandoned his request for an oral 

hearing before an OWCP hearing representative with respect to OWCP’s termination of his wageloss compensation and schedule award benefits pursuant to section 8106(c) of FECA, effective 

March 6, 2019.

 

21 Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter 

2.1601.6(g) (September 2020); J.H., id.

22 See D.T., Docket No. 20-0234 (issued January 8, 2021); K.J., Docket No. 10-0414 (issued July 30, 2020).

23 Id.
9

ORDER

IT IS HEREBY ORDERED THAT the July 19 and November 5, 2019 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: May 11, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board