United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Green River, WY, Employer

__________________________________________

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Docket No. 18-1427

Issued: July 29, 2019

Appearances: Case Submitted on the Record

Kayla Spencer, 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 July 18, 2018 appellant, through counsel, filed a timely appeal from a June 20, 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.

 

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 found that appellant had forfeited her wage-loss 

compensation for the period December 19, 2013 through March 19, 2015 because she knowingly 

failed to report her employment activities and earnings. 

FACTUAL HISTORY

On July 25, 2008 appellant, then a 49-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) for a right foot injury allegedly sustained on July 21, 2008 when stepping out of her 

work vehicle while in the performance of duty. OWCP initially accepted her claim for right foot 

sprain and ruptured/torn ligament, and right foot tendinitis. It later expanded the accepted 

conditions to include right ankle peroneal tendon tear and right lower limb complex regional pain 

syndrome. OWCP paid wage-loss compensation for periods of disability. 

On January 22, 2013 appellant underwent authorized right foot surgery. OWCP paid her 

wage-loss compensation for temporary total disability beginning January 22, 2013, and placed her 

on the periodic compensation rolls effective April 7, 2013.3

On March 17, 2015 OWCP requested that appellant complete and return an enclosed 

EN1032 form. The EN1032 form contained language advising her of what type of employment 

activities, earnings, and volunteer activities that she was required to report for the 15-month period 

prior to the time she signed each form. Appellant was instructed to report all employment for 

which she received a salary, wage, income, sales commissions, piecework, or payment of any kind. 

The EN1032 form also directed appellant to report all self-employment or involvement in business 

enterprises, including (but not limited to) farming; sales work; operating a business, including a 

store or a restaurant; and providing services in exchange for money, goods, or other services. The 

kinds of services that she was required to report include such activities as carpentry, mechanical 

work, painting, contracting, child care, odd job, etc. The activities appellant was to report included 

keeping books and records, or managing and overseeing a business of any kind, including a family 

business. She was informed that even activities that were part time or intermittent must be 

reported. The EN1032 form contained a certification clause informing appellant of the 

consequences of not accurately reporting her employment activities, such as being subjected to 

criminal penalties and losing the right to receive workers’ compensation benefits. 

In an EN1032 form signed on March 19, 2015, appellant responded “No” indicating that 

she had not worked for an employer and had not been self-employed or involved in a business 

enterprise in the past 15 months.

OWCP received an August 5, 2015 investigative memorandum from the employing 

establishment’s Office of Inspector General (OIG) advising of its belief that appellant had 

participated in various activities outside of her medical restrictions for the period February 4, 2014 

to August 5, 2015. The OIG agent who completed the report indicated that the investigation 

 

3 Appellant continued to receive wage-loss compensation for temporary total disability through August 31, 2015. 

Effective September 1, 2015, appellant elected to receive retirement benefits from the Office of Personnel 

Management in lieu of FECA wage-loss compensation. 
3

revealed that appellant routinely babysat her granddaughter during school hours while her son and 

daughter-in-law taught at local schools. He related that the babysitting activities occurred for 

between 8 to 10 hours a day during school days and that the school district had 175 school days 

between August 18, 2014 and May 22, 2015. The OIG specifically conducted surveillance of 

appellant from September 12 through November 6, 2014. According to the memorandum, OIG 

agents witnessed appellant babysitting her granddaughter during the day for approximately eight

to nine hours a day on intermittent dates from September through November 2014.4

The OIG reported that on June 24, 2015 OIG agents interviewed appellant about her workrelated injury and the surveillance activities conducted. When they questioned her about 

babysitting her granddaughter during the school year, appellant acknowledged that she had babysat 

her granddaughter a lot this year because the other baby sitter was unavailable. She also confirmed 

that she had signed her March 19, 2015 EN1032 form. The investigative report revealed that 

appellant “never directly answered the question posed by [a Special Agent] about babysitting.”

By decision dated August 9, 2017, OWCP found that appellant had forfeited her wage-loss 

compensation benefits for the period December 19, 2013 through March 19, 2015, pursuant to 5 

U.S.C. § 8106(b), for failure to report her earnings and employment activities or earnings on a 

Form EN1032. It found that she had knowingly omitted information about self-employment and 

employment activities that occurred during that period.5 The forfeiture period covered the 15 

months preceding the March 19, 2015 EN1032 form.6

On September 15, 2017 appellant, through counsel, requested reconsideration. 

In a narrative statement, appellant related that she continued to experience pain and 

swelling in her right foot, which required constant pain medication. She acknowledged that she 

watched her grandchildren “off and on for a short time.” Appellant reported that she had not 

received any money or gifts for watching her grandchildren and that she was only spending time 

with them. She indicated that when she filled out the EN1032 form she only glanced at it without 

reading the whole thing. Appellant asserted that she informed the employing establishment’s 

 

4 The memorandum indicated that surveillance showed that appellant babysat her granddaughter on September 11, 

12, 15, 19, 22, 23, 24, 25, 26, 29, 30; October 1, 2, 3, 6, 7, 9, 10, 13, 14, 15, 16, 21, 22, 23, 28, 29, 30, and 30; and 

November 3 and 5, 2014.

5 OWCP determined that appellant had not reported having a garage sale at her residence on August 9, 2013, 

returning to work briefly for light duty and sedentary work on January 25, 2014, and babysitting children on 

February 7 and 8, 2014.

6 By separate decision, OWCP issued a preliminary determination that appellant had received an overpayment of 

compensation in the amount of $39,187.84 for the period December 19, 2013 through March 19, 2015 as a result of 

the forfeiture. It found that she was at fault in the creation of the overpayment. OWCP finalized the overpayment of 

compensation by decision dated September 11, 2017.
4

representative that she watched her grandchildren occasionally, and the representative did not 

instruct her to report the occasional babysitting.7

OWCP received several letters regarding appellant’s babysitting activities. In an 

August 30, 2017 letter, A.D., who identified herself as the woman who babysat for appellant’s 

grandchildren, acknowledged that appellant helped her take care of the children from “time to 

time” when she had other obligations. She also reported that appellant helped with the 

grandchildren for a week or so that her daughter-in-law went back to work before Christmas break. 

In an undated letter, B.P., appellant’s husband, asserted that during the period December 19, 2013 

through March 19, 2015 appellant had not performed work for which she had received 

compensation. He alleged that appellant spent time with her grandchildren when they needed her 

to do so, but that she had not received money or payments. In a September 4, 2017 letter, 

appellant’s son and daughter-in-law reported that appellant watched their child while they sought

child care after the daughter-in-law returned to work. They also related that appellant “filled in”

on days when their child care provider had other obligations.

In a brief dated September 18, 2017, counsel alleged that none of the activities mentioned 

in the August 9, 2017 decision should result in a forfeiture of benefits. She contended that 

appellant had not earned money from employment or participated in volunteer work, but only 

participated in activities of daily living, including walking around her home, spending time with 

her family, cleaning out the car, picking up a box, and taking care of her husband. Counsel noted 

that appellant was never employed as a babysitter and had not received wages. She further alleged 

that the forfeiture provision did not apply in this case because appellant had not “knowingly”

omitted or understated any of her earnings. Counsel related that appellant informed the employing 

establishment’s representative that she occasionally babysat her grandchildren, and the 

representative did not instruct her to report her babysitting activities. 

By decision dated January 3, 2018, an OWCP hearing representative set aside the August 9, 

2017 decision. She determined that OWCP’s decision did not contain a detailed explanation or 

clear finding of facts with regard to its forfeiture finding. The case was remanded for OWCP to 

provide factual findings and a detailed explanation supporting its forfeiture determination.8

OWCP subsequently provided appellant with a copy of the video evidence referenced in 

the August 5, 2015 OIG investigation report. 

In a May 25, 2018 letter, appellant, through counsel, provided comments on the video 

surveillance and OIG report. She asserted that appellant had not knowingly misrepresented any 

earnings or employment because appellant attempted to fill out the EN1032 form completely and 

accurately with a representative from the employing establishment. Counsel also alleged that 

spending time with grandchildren was not employment and reiterated that appellant had not 

 

7 Appellant also addressed other activities noted in the OIG investigative report, including hosting a garage sale, 

use of her walking buggy, yard work, lifting boxes and a cooler, hanging Christmas lights, working light duty, driving, 

washing her vehicle, and prolonged standing on floor pads in her kitchen.

8 The hearing representative also indicated that OWCP should not have issued its September 11, 2017 final 

overpayment decision because appellant’s counsel had requested a prerecoupment hearing. The hearing representative 

further noted that issue of overpayment was premature as the underlying forfeiture issue had yet to be resolved.
5

received money or gifts for babysitting. She further contended that the according to Vernon Booth9

and Matter of Sipe,

10 activities that would not be available in the open labor market should not be 

considered employment-type activities. Counsel also asserted that appellant’s “babysitting”

activity was not the type that would be considered as running a childcare business under state law 

and was not representative of her wage-earning capacity. 

By decision dated June 20, 2018, OWCP determined that appellant forfeited her 

entitlement to compensation for the period December 19, 2013 through March 19, 2015 because 

she knowingly failed to report her outside employment and earnings. It found that she had not 

reported her work activities of providing occasional babysitting services to her grandchildren. 

OWCP determined that appellant worked intermittently as a babysitter during the school year and 

that these activities were the type specifically identified on the EN1032 form as the kinds of 

services that must be reported.

LEGAL PRECEDENT

Section 8106(b) of FECA provides in pertinent part: 

“The Secretary of Labor may require a partially disabled employee to report his or 

her earnings from employment or self-employment, by affidavit or otherwise, in 

the manner and at the times the Secretary specifies.... 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.”

11

 

Compensation forfeited under this subsection, if already paid, shall be recovered by a 

deduction from the compensation payable to the employee or otherwise recovered under section 

8129 of this title, unless recovery is waived under that section.12

 

9 7 ECAB 209 (1954).

10 43 ECAB 773 (1992).

11 5 U.S.C. § 8106(b); see F.C., 59 ECAB 666 (2007).

12 While section 8106(b)(2) refers only to partially disabled employees, the Board has held that the test for 

determining partial disability is whether, for the period under consideration, the employee was in fact either totally 

disabled or merely partially disabled, and not whether he or she received compensation for that period for total or 

partial loss of wage-earning capacity. Ronald H. Ripple, 24 ECAB 254, 260 (1973). The Board explained that a 

totally disabled employee normally would not have any employment earnings and therefore a statutory provision about 

such earnings would be meaningless. Id. at 260.
6

Section 10.529 of OWCP’s implementing regulations also provides that 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.13

OWCP’s procedures recognize that forfeiture is a penalty,14 and, as a penalty provision, it 

must be narrowly construed.15 In its regulations, knowingly is defined as: with knowledge, 

consciously, willfully, or intentionally.16 To meet this burden, OWCP is required to examine 

closely the employee’s activities and statements. It may meet this burden without an admission 

by an employee if the circumstances of the case establish that she failed to reveal fully and 

truthfully the full extent of her employment activities and earnings.17

Section 10.5(g) of OWCP’s regulations define earnings from employment or selfemployment as follows:

“(1) Gross earnings or wages before any deduction and include 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.”

18

ANALYSIS

The Board finds that OWCP improperly determined that appellant forfeited her 

compensation for the period December 19, 2013 through March 19, 2015.

OWCP based its finding of forfeiture for the period December 19, 2013 through March 19, 

2015 on the fact that appellant failed to report her employment activities in the preceding 15 

months on the Form EN1032 signed and dated March 19, 2015. Appellant reported “No” in 

response to questions of whether she worked for an employer, was self-employed, or was involved 

in a business enterprise for the past 15 months. OWCP found that appellant had forfeited her right 

to compensation because she did not report that she occasionally babysat her grandchild during 

the period September 11 to November 5, 2014.

 

13 20 C.F.R. § 10.529.

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

15 Christine P. Burgess, 43 ECAB 449 (1992).

16 20 C.F.R. § 10.5(n); see Anthony A. Nobile, 44 ECAB 268 (1992).

17 Id. at § 10.5(g); see Monroe E. Hartzog, 40 ECAB 329 (1988).

18 Id. at § 10.5(g).
7

The Board, however, finds that in this case the time appellant spent at her home caring for 

her grandchild during the claimed forfeiture period is not the type of activity (self-employment) 

that required reporting pursuant to 20 C.F.R. § 10.529. While the evidence of record demonstrates 

that appellant occasionally looked after her grandchild from September 11 to November 5, 2014, 

she did not receive any earnings for this particular activity, and thus, was not required to report her 

the activity on the March 19, 2015 EN1032 form. The Board further finds that a grandparent 

performing a familial act of watching a grandchild is not a qualifying activity for which benefits 

may be forfeited under FECA pursuant to federal regulations for reporting activity while in receipt 

of wage-loss compensation benefits. Such a familial act cannot equate to babysitting or child care 

contemplated under the reporting forms as well as 5 U.S.C. § 8106(b) and its implementing 

regulations.

The EN1032 instructed appellant to report all self-employment or involvement in business 

enterprises, which included: “farming; sales work; operating a business, including a store or a 

restaurant; and providing services in exchange for money, goods, or other services [emphasis 

added].” The following sentence then describes the kinds of services she was required to report,

including child care. Although the EN1032 form lists child care, it is listed as an activity that 

relates back to “the kind of services” for which she had performed “in exchange for money, goods, 

or other services.” Thus, while appellant intermittently cared for her grandchild and arguably 

provided “child care” services, the specific language of the EN1032 form demonstrates that child 

care is a service that must be reported only if appellant has received compensation, goods, or other 

services in exchange for such services.

In previous forfeiture cases involving babysitting and child care, the Board has consistently 

held that providing child care services must be reported on an EN1032 form only when the 

evidence of record has documentation of earnings. For example, in R.B.,19 a claimant reported that 

she earned $2,160.00 for providing child care for a military friend’s family during a specific time 

period. In Julia M. Andrews,20 a claimant had listed on her application for federal employment 

(SF-171) that her previous employment included providing child care services for $240.00 per 

week. 

In this case, the record is devoid of any evidence indicating that appellant provided child 

care services in exchange for money, goods, or other services. To the contrary, appellant has 

repeatedly asserted that she had not received any money or payment in exchange for occasionally 

watching her grandchild when the usual child care provider was unavailable. OWCP received 

additional letters from appellant’s husband, son, and daughter-in-law, who confirmed that 

appellant had not received any compensation when she occasionally looked after her grandchild. 

The Board thus finds that appellant did not fail to comply with the reporting requirements fully 

explained on the EN1032 form that she signed on March 19, 2015.

 

19 Docket No. 15-1946 (issued September 2, 2016).

20 Docket No. 04-1444 (issued February 16, 2005).
8

OWCP has the burden of proof to establish that a claimant did, either with knowledge, 

consciously, willfully, or intentionally, fail to report employment earnings or work activity.21 Its 

procedures recognize that forfeiture is a penalty, and, as a penalty provision, it must be narrowly 

construed.22 The Board finds that, in this case, appellant did not knowingly omit employment 

activities under section 8106(b)(2) of FECA by failing to report that she occasionally cared for her 

grandchild without remuneration. OWCP, therefore, improperly determined that she forfeited her 

entitlement to compensation from December 19, 2013 through March 19, 2015.

CONCLUSION

The Board finds that OWCP improperly determined that appellant forfeited her wage-loss 

compensation for the period December 19, 2013 through March 19, 2015.

ORDER

IT IS HEREBY ORDERED THAT the June 20, 2018 decision of the Office of Workers’

Compensation Programs is reversed. 

Issued: July 29, 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

 

21 L.B., Docket No. 15-1648 (issued September 18, 2017).

22 Supra notes 14 and 15.