United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, SAGINAW POST
OFFICE, Saginaw, MI, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1746
Issued: March 17, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 30, 2009 appellant, through his representative, filed a timely appeal from a
June 8, 2009 merit decision of the Office of Workers’ Compensation Programs, which affirmed a
November 14, 2008 decision denying his claim for compensation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained a left hand injury on March 7,
2007, as alleged.
FACTUAL HISTORY
This case was previously before the Board.1 On March 7, 2007 appellant, then a 50-yearold mail processor sustained injury when he picked up a tray of mail and his left hand went
numb. The Office accepted that he picked up a mail tray on March 7, 2007 and experienced
numbness in his left hand, but denied the claim on the grounds that he did not submit sufficient
medical evidence to establish an injury. By decision dated November 14, 2008, the Board
1

Docket No. 08-1443 (issued November 14, 2008).

affirmed the March 27, 2008 Office decision, finding that appellant did not provide a rationalized
medical opinion establishing that he sustained an injury causally related to the March 7, 2007
employment event. The findings of fact and conclusions of law from the prior decision are
hereby incorporated by reference.
On May 6, 2009 appellant, through his representative, filed a request for reconsideration.
In a March 27, 2008 medical report, Dr. Branislav Behan, a Board-certified orthopedic
surgeon, opined that appellant sustained symptoms of cubital tunnel syndrome while working as
a letter carrier. He stated that appellant’s position entailed a good amount of sorting, lifting and
flexing at his elbow. Dr. Behan opined that, although cubital tunnel syndrome could occur in
people that are not letter carriers, a job entailing repetitive hyperflexing and lifting could cause or
aggravate this condition. He maintained that appellant had signs and symptoms consistent with
cubital tunnel syndrome.
In a medical report dated April 9, 2009, Dr. Jeffrey F. Wirebaugh, Board-certified in
family medicine, stated that he evaluated appellant on March 5, 2009. He noted that appellant
worked as a distribution clerk for approximately 30 years, during which time he sorted mail by
hand. Dr. Wirebaugh stated that appellant’s employment duties included picking up trays of
mail with a variety of other lifting and reaching activities that involved constant and repetitive
flexion and extension of the elbows. On March 9, 2007 appellant developed sudden numbness
and tingling in his left forearm and hand while picking up a tray of mail at work. Diagnostic
studies established a diagnosis of cubital tunnel syndrome. Dr. Wirebaugh stated that appellant
continued to experience episodic tingling and numbness and that he lost some grip strength in the
left hand. He reported that appellant worked for 30 years in a position requiring continually
picking up trays of mail and flexing and extending the elbow to sort mail. Dr. Wirebaugh opined
that this type of activity is an accepted etiology of cubital tunnel syndrome. Appellant claimed
that he was not performing any outside activity that would place any kind of stress on the elbow
and there was no evidence of an arthritic change in the elbow or elsewhere in the body.
Dr. Wirebaugh opined that it was certainly more likely than not that appellant’s left cubital
tunnel syndrome was a result of his job duties as a distribution clerk for the employing
establishment.
By decision dated June 8, 2009, the Office again found that the medical evidence did not
establish that appellant sustained an injury causally related to the March 7, 2007 employment
incident. It noted that, if appellant believed his condition was due to repetitive work duties over
time, he could file an occupational disease claim (Form CA-2).
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).

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the Act4 and that he filed his claim within the applicable time limitation.5 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
The issue is whether appellant established that he sustained a left hand injury causally
related to the March 7, 2007 employment incident. The Board finds he has not met his burden of
proof.
In a March 27, 2008 medical report, Dr. Behan stated that appellant experienced
symptoms of cubital tunnel syndrome while working as a letter carrier. He reviewed appellant’s
employment duties including sorting and lifting and flexing at the elbow. Dr. Behan opined that
repetitive hyperflexing and lifting could cause or aggravate cubital tunnel syndrome. He did not
provide a rationalized opinion that appellant’s employment caused his cubital tunnel syndrome.
Although Dr. Behan noted that repetitive hyperflexing and lifting could cause the condition, this

4

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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opinion is equivocal in nature and insufficient to establish appellant’s claim.10 Further, the fact
that appellant experienced symptoms of cubital tunnel syndrome during his employment does not
establish causal relationship.11 Moreover, Dr. Behan did not mention the March 7, 2007
employment incident or discuss how appellant’s lifting a tray of mail on this date caused an
injury. Therefore, the Board finds this report is insufficient to establish appellant’s claim.
Further, in an April 9, 2009 medical report, Dr. Wirebaugh stated that, during appellant’s
30-year employment as a distribution clerk, he repeatedly picked up trays of mail and performed
a variety of other lifting and reaching activities involving constant and repetitive flexion and
extension of the elbows. He reported that on March 9, 2007 appellant developed sudden
numbness and tingling in his left forearm and hand while picking up a tray of mail at work and
that appellant continued to experience episodic numbness and tingling and loss of left hand grip
strength. Dr. Wirebaugh opined that appellant’s repetitive work duties were an accepted etiology
of cubital tunnel syndrome and that it was more likely than not appellant’s left cubital tunnel
syndrome was a result of his employment duties. He did not provide a comprehensive medical
opinion explaining how appellant’s lifting a tray of mail on March 7, 2007 caused the diagnosed
cubital tunnel syndrome. Rather, Dr. Wirebaugh only provided a speculative and unrationalized
opinion that appellant’s condition was likely related to his repetitive employment duties. Thus,
the Board finds that this report is similarly insufficient to establish appellant’s claim.12
The Board notes that the medical evidence of record suggests that appellant sustained
cubital tunnel syndrome as an occupational disease related to his repetitive employment duties
over a period of time greater than one work shift. However, this is not the issue in this case.
Appellant filed a traumatic injury claim alleging that he lifted a tray of mail on March 7, 2007
and experienced left hand numbness. Although advised on several occasions that he could file a
separate claim of occupational injury appellant has pursued his claim as a traumatic injury.13
There is no evidence that appellant intended to file other than a traumatic injury claim.14

10

Medical opinions which are speculative or equivocal in character have little probative value. Linda I. Sprague,
48 ECAB 386 (1997); Jennifer L. Sharp, 48 ECAB 209 (1996).
11

Neither the fact that the condition became apparent during a period of employment, nor the belief of appellant
that the condition was caused or aggravated by an employment condition, is sufficient to establish causal
relationship. See Ruby I. Fish, 46 ECAB 276 (1994); Frederick H. Coward, Jr., 41 ECAB 843 (1990).
12

See Linda I. Sprague, supra note 10; Victor J. Woodhams, supra note 9.

13

In a July 31, 2007 letter, the Office requested that appellant clarify whether he intended to file a claim for an
occupational disease or a traumatic injury. It again attempted to clarify the claim in an August 2, 2007 telephone
call, which was referenced in the September 5, 2007 its decision. Further, at the February 5, 2008 oral hearing, the
Office hearing representative addressed the issue of whether the claim should be adjudicated as an occupational
disease and requested appellant’s representative provide additional clarification. Moreover, the Board noted in the
November 14, 2008 decision that appellant may consider filing an occupational disease claim. No additional
statements or amplifying documents were filed.
14

Compare Barbara A. Weber, 47 ECAB 163 (1995) where appellant’s representative clarified on
reconsideration that he believed that the issue in the case was whether the factors of the appellant’s employment
caused an injury instead of whether appellant established an injury in the performance of duty. The Board held that
this statement amplified the case, such that the Office should have adjudicated the issue of an occupational disease.
In the instant case, no such statements were provided to show that appellant intended to claim an occupational
disease.

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CONCLUSION
The Board finds that appellant did not establish that he sustained a left hand injury on
March 7, 2007, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the June 8, 2009 and November 14, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 17, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Huntington, WV,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-296
Issued: May 1, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 14, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated October 26, 2006 denying reconsideration.
Because more than one year has elapsed between the most recent merit decision of the Office
dated October 12, 2005 and the filing of this appeal on November 14, 2006, the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for a review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

The most recent merit decision of record is the Board’s July 17, 2006 decision. However, this decision became
final 30 days after issuance and is not subject to further review. See 20 C.F.R. § 501.6.

FACTUAL HISTORY
This case is on appeal to the Board for the fourth time. In Office file number
A13-264425, the Office accepted that appellant, then 29 years old, sustained a lumbosacral strain
resulting from a February 23, 1967 work injury. Appellant underwent a laminectomy in 1960
and a spinal fusion in 1967. In Office file number A6-432868, the Office accepted a low back
strain superimposed on preexisting degenerative disc disease when appellant was kicked in the
back by a coworker on February 10, 1988. By decision dated July 29, 1998, the Board affirmed
the Office’s termination of appellant’s compensation benefits effective November 12, 1994
finding that the weight of the medical evidence, as denoted by the April 5, 1994 report of
Dr. Carl Roncaglione, a Board-certified orthopedic surgeon selected as the impartial medical
examiner, established that he did not have residuals of his accepted injury.2 On September 20,
2001 appellant claimed a recurrence of disability commencing February 10, 1988 which he
attributed to his work injury of February 10, 1988 and the failure of his 1967 back surgery. In an
April 18, 2005 order, the Board granted the Director’s motion to set aside the September 4, 2003
Office’s nonmerit decision denying appellant’s reconsideration request and remand the case so
that the case files could be doubled.3 By decision dated July 17, 2006, the Board affirmed the
Office’s October 12, 2005 decision which denied modification of a December 31, 2002 decision
finding that appellant did not establish a recurrence of disability.4 The facts and the history
surrounding the prior appeals are set forth in the prior decisions and are hereby incorporated by
reference.
In a letter dated July 26, 2006, appellant requested reconsideration. He submitted an
x-ray as well as a copy of his statement in his civil case before the United States District Court
for the Southern District of West Virginia. In his statement in his civil case, appellant argued
that the medical report of Dr. Roncaglione, the impartial medical examiner, was false. In a
separate letter dated July 27, 2006, appellant advised that diagnostic testing proved that
Dr. Roncaglione’s report was false.
By decision dated October 26, 2006, the Office denied appellant’s request for
reconsideration finding that the evidence submitted neither raised legal questions nor included
new and relevant evidence sufficient to warrant a review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Act,5 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulation, which provides that a
claimant may obtain review of the merits of the claim by either: (1) showing that the Office
2

Docket No. 96-1682 (issued July 29, 1998); petition for recon. denied, Docket No. 96-1682 (issued
November 16, 1998).
3

Docket No. 04-764 (issued April 18, 2005).

4

Docket No. 06-195 (issued July 17, 2006).

5

5 U.S.C. § 8128(a).

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erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal
argument not previously considered by the Office; or (3) constituting relevant and pertinent new
evidence not previously considered by the Office.6 Section 10.608(b) provides that, when an
application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), the Office will deny the application for reconsideration without
reopening the case for a review on the merits.7
ANALYSIS
Appellant’s July 26, 2006 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. In his July 26,
2006 request for reconsideration as well as in his statement in his civil case before the United
States District Court for the Southern District of West Virginia, appellant argued that the medical
report of Dr. Roncaglione, the impartial medical examiner, was false. The evidence of file
reflects that the Office had previously addressed the argument pertaining to its reliance upon the
opinion of Dr. Roncaglione in its October 12, 2005 decision, which the Board affirmed in its
July 17, 2006 decision. Thus, appellant’s argument pertaining to the Office’s reliance on
Dr. Roncaglione was previously considered by the Office and is repetitious of earlier arguments.8
Consequently, appellant is not entitled to a review of the merits of his claim based on the first
and second above-noted requirements under section 10.606(b)(2).9
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted an x-ray film. However, no new
medical report was submitted with the diagnostic study addressing whether appellant sustained a
recurrence of disability on February 10, 1988 causally related to the work-related injury
sustained on February 23, 1967. Because of this, the diagnostic study is not relevant to the issue
in this case. Consequently, appellant is not entitled to a review of the merits of his claim based
on the third above-noted requirement under section 10.606(b)(2).10
Appellant neither showed that the Office erroneously applied or interpreted a point of
law; advanced a point of law or fact not previously considered by the Office; nor did he submit
relevant and pertinent evidence not previously considered by the Office.11 Accordingly, the
Board finds that the Office properly determined that appellant was not entitled to a merit
review.12
6

20 C.F.R. § 10.606(b)(2).

7

20 C.F.R. § 10.608(b).

8

Betty A. Butler, 56 ECAB ___ (Docket No. 04-2044, issued May 16, 2005); Daniel M. Dupor, 51 ECAB
482 (2000).
9

20 C.F.R. § 10.608(b)(2)(i) and (ii).

10

20 C.F.R. § 10.606(b)(2)(iii).

11

20 C.F.R. § 10.606(b).

12

See James E. Norris, 52 ECAB 93 (2000).

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CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HUDSON VALLEY HEALTH CARE SYSTEM,
Castle Point, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0128
Issued: June 1, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 23, 2017 appellant, through counsel, filed a timely appeal from an August 9,
2017 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 to consider the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a right knee condition
causally related to the accepted July 22, 2016 employment incident.
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.

On appeal counsel argues that the medical evidence of record establishes appellant’s
claim.
FACTUAL HISTORY
On July 22, 2016 appellant, then a 60-year-old laborer, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, he injured his right knee when he tripped over a metal
bar and fell onto his right knee while in the performance of duty. He stopped work on
July 22, 2016.
On August 24, 2016 Dr. Louis McIntyre, an attending Board-certified orthopedic
surgeon, referred appellant for physical therapy for his right knee pain.
Dr. McIntyre, in notes dated October 5 and November 15, 2016, diagnosed patellar
fracture and recommended rehabilitation services for appellant.
In a November 15, 2016 report, Dr. McIntyre provided examination findings and noted
appellant’s medical history including a four-month history of right anterior knee pain. His
diagnoses included left patella closed displaced comminuted fracture with malunion, right patella
closed nondisplaced transverse fracture with routine healing, and pain.
By development letter dated December 29, 2016, OWCP advised appellant that when his
claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and, since the employing establishment did not controvert continuation of pay or challenge
the case, a limited amount of medical expenses were administratively approved and paid. It
noted that his claim had been reopened because the medical bills had exceeded $1,500.00.
OWCP requested that appellant submit additional factual and medical evidence within 30 days.
Appellant did not submit any additional evidence within the time allotted.
By decision dated February 28, 2017, OWCP denied appellant’s traumatic injury claim.
It found that the medical evidence of record was insufficient to establish that the diagnosed
condition was causally related to the accepted July 22, 2016 work incident.
OWCP subsequently received two reports, dated August 22, 2016 and March 27, 2017,
from Dr. McIntyre.
In the August 22, 2016 report, Dr. McIntyre noted that appellant was seen for right knee
pain due to a fall at work five weeks prior. He observed appellant using a walker and
demonstrating an antalgic gait. Appellant’s physical examination revealed right knee swelling
and tenderness, limited range of motion, no valgus stress or varus stress laxity, and negative
Lachman’s test. An x-ray interpretation revealed minimally displaced articular surface
congruent patellar fracture. Dr. McIntyre diagnosed closed nondisplaced right patella traverse
fracture and referred appellant for physical therapy. He related that appellant could return to
work in 8 to 10 weeks.
In the March 27, 2017 report, Dr. McIntyre noted that appellant was first seen on
August 22, 2016 for a work injury. Appellant related that approximately five weeks prior he fell
directly on his right knee while at work. Physical examination findings included an antalgic gait
while using a walker, pain on palpation of the right knee, mild right knee effusion, decreased
2

right knee range of motion, negative anterior and posterior drawer tests, and negative Lachman
test. Dr. McIntyre reviewed an x-ray interpretation which revealed a minimally displaced patella
fracture. He opined that appellant’s right patellar fracture with malunion was directly caused by
the July 2016 work incident.
By decision dated August 9, 2017, OWCP denied modification of its prior decision. It
found that the evidence of record was insufficient to establish causal relationship between the
diagnosed conditions and the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.10 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,

3

Id.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
10

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006)

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and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
The Board finds that appellant has failed to meet his burden of proof to establish a right
knee condition causally related to the accepted July 22, 2016 employment incident.
In support of his claim appellant submitted reports from Dr. McIntyre. In the August 22,
2016 report, Dr. McIntyre diagnosed closed nondisplaced right patella traverse fracture. He,
however, did not address causation condition in the August 22, 2016 report. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.12 Thus, this report is insufficient to meet
appellant’s burden of proof.
In a March 27, 2107 report, Dr. McIntrye noted that appellant fell on his right knee at
work approximately five weeks prior. He diagnosed right patellar fracture with malunion which
he attributed to the July 2016 work incident. To establish causal relationship, a physician must
provide a narrative description of the identified employment incident and a reasoned opinion on
whether the employment incident described caused or contributed to appellant’s diagnosed
medical condition.13 A mere conclusory opinion provided by a physician without the necessary
rationale explaining how and why the incident or work factors were sufficient to result in the
diagnosed medical condition is insufficient to meet a claimant’s burden of proof to establish a
claim.14 Dr. McIntrye provided no supporting rationale explaining his conclusion, and thus, this
report is insufficient to meet appellant’s burden of proof.
In order to establish causal relationship, a physician must provide an opinion that the
condition for which compensation is claimed is causally related to federal employment and such
relationship must be supported with affirmative evidence, explained by medical rationale, and be
based upon a complete and accurate medical and factual background of the claimant.15
Appellant has not submitted a medical report sufficient to show a diagnosed condition causally
related to the accepted July 22, 2016 employment incident, and thus has not met his burden of
proof.
On appeal counsel argues that the medical evidence of record establishes appellant’s
claim for a work-related traumatic injury on July 22, 2016. However, the Board has explained
11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12
See T.W., Docket No. 17-1904 (issued February 16, 2018); S.E., Docket No. 08-2214 (issued May 6,
2009); Conard Hightower, 54 ECAB 796 (2003); Willie M. Miller, 53 ECAB 697 (2002).
13

See K.B., Docket No. 17-1363 (issued February 14, 2018); John W. Montoya, 54 ECAB 306 (2003).

14

D.R., Docket No. 17-1584 (issued February 8, 2018); Docket No. 08-0975 (issued February 6, 2009); Roma A.
Mortenson-Kindschi, 57 ECAB 418 (2006); William C. Thomas, 45 ECAB 591 (1994) (a medical report is of
limited probative value on the issue of causal relationship if it contains a conclusion regarding causal relationship
which is unsupported by medical rationale).
15

See J.W., Docket No. 17-0870 (issued July 12, 2017).

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the deficiencies in the reports contained in the record and, thus, why appellant has failed to
establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted July 22, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 9, 2017 is affirmed.
Issued: June 1, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
U.S. POSTAL SERVICE, HUGHES STATION,
Fresno, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0406
Issued: December 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 14, 2016 appellant, through counsel, filed a timely appeal from a June 22,
2016 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 the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited his right
to compensation for the periods March 5, 2000 to April 3, 2006 and January 10, 2007 to
April 22, 2013, pursuant to section 8106(b)(2) of FECA; (2) whether OWCP properly found that
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.

an overpayment of compensation in the amount of $427,275.54 because of the forfeiture; and
(3) whether OWCP properly found that appellant was at fault in creating the overpayment and
therefore waiver of recovery of the overpayment is not warranted.
On appeal counsel asserts that appellant has been unable to work since his January 8,
2000 work injury. She maintains that the record does not support that he has conducted any
employment activity on what is a family farm that has operated since 1987 and, relying on the
case C.D.,3 asserts that OWCP failed to meet its burden of proof to establish the nature, timing,
and duration of employment activity.
FACTUAL HISTORY
On January 8, 2000 appellant, then a 38-year-old letter carrier, was hit in the right
shoulder when shot by a pellet gun while sitting in his work truck delivering mail. He stopped
work that day and did not return. OWCP accepted a right shoulder puncture and acute stress
reaction as work related. Appellant received continuation of pay from January 9 through
February 22, 2000 and wage-loss compensation beginning February 23, 2000. He was placed on
the periodic compensation rolls effective March 26, 2000. Appellant has not returned to work.
In reports beginning January 21, 2000, Allan G. Hedberg, Ph.D., a clinical psychologist,
saw appellant weekly. He related that appellant had a high sense of apprehension and anxiety
after the shooting and could not return to work. On July 7, 2000 Dr. Hedberg transferred
appellant’s care to Dr. Robert P. Withrow, a Board-certified psychiatrist, who diagnosed posttraumatic stress disorder (PTSD) and gunshot wound. Dr. Withrow submitted sporadic reports.
On September 20, 2007 Dr. Withrow advised that he saw appellant twice monthly for
psychotherapy. He diagnosed major depression and PTSD and indicated that appellant’s
condition had not changed.
OWCP referred appellant to Dr. Franklin Drucker, a Board-certified psychiatrist, for a
second opinion evaluation on September 13, 2000 as to appellant’s work capacity. In his
September 13, 2000 report, and following psychological testing, he diagnosed employmentrelated PTSD and pellet wound to the right shoulder. Dr. Drucker advised that appellant was not
psychologically capable of returning to work.
OWCP also referred appellant for a second opinion evaluation to Dr. Craig R. MacClean,
a Board-certified orthopedic surgeon. In his September 25, 2000 report, Dr. MacClean advised
that the employment-related right shoulder puncture wound from pellet gunshot had healed
without residuals and that, from an orthopedic standpoint, appellant could return to his usual job.
OWCP again referred appellant for a second opinion evaluation to determine his work
status. On July 17, 2002 Dr. Paul J. Markovitz, a Board-certified psychiatrist, provided a second
opinion evaluation. He diagnosed major depression, single episode, melancholic, severe; PTSD,
and healed right shoulder injury secondary to bullet wound. Dr. Markovitz advised that
appellant could not work due to his employment-related psychological condition.

3

Docket No. 14-1165 (issued July 8, 2015).

2

By letter dated March 11, 2008, OWCP asked appellant for earnings information from
January 1, 2004 to December 31, 2006 and provided a Form SSA-581 to sign and return. In a
response dated August 5, 2008, appellant wrote that he was exercising his rights under the law of
the land by not signing and submitting the form.
In June 2008 appellant began seeing Dr. Richard E. Land, a psychiatrist. Dr. Land
submitted form progress reports beginning July 30, 2008 noting appellant’s status. He diagnosed
major depressive disorder, possible schizoaffective disorder, PTSD, and personality disorder.
On May 21, 2009 Dr. Land noted that appellant and his father were preparing the family ranch
for the coming season. On December 29, 2009 appellant related increased paranoia when three
agents came to his home to investigate if he was working. On June 17, 2010 Dr. Land noted that
appellant did not speak English well and was singled out for workers’ compensation violations.
On December 28, 2011 he reported increased anxiety and noted that there had been a stay on
appellant’s criminal case until March 2012. Dr. Land continued to note that appellant was under
enormous stress.
OWCP also received on October 18, 2012 a report from Dr. Land in which he reported
that appellant’s intellectual capacity, anxiety, and inability to understand English often rendered
him incompetent and difficult to treat. On November 28, 2012 Dr. Land reported that appellant’s
criminal case was again stayed. On December 27, 2012 he reported that appellant had been
deposed by appellant’s union representative. Dr. Land noted that, although appellant graduated
from high school and attended junior college in the United States, he was unable to comprehend
legal proceedings. He indicated that appellant seemed to comprehend little of the proceedings.4
On March 28, 2013 Dr. Land related that appellant was seen by Dr. Harold Seymour, a
psychologist, to evaluate competency. On October 17, 2013 he related that appellant indicated
that his family encouraged him not to do any work but to just stand and watch the harvest.
In December 2013 the employing establishment’s Office of Inspector General (OIG)
provided January 28 and April 9, 2010 investigation reports covering the period September 30,
2009 to April 1, 2010. Special Agent (SA) Sara Harlan indicated that, after a review of
employees on FECA compensation, she began investigating appellant, noting that in 2006 it was
reported that he was operating a farm, but that in 2009 the U.S. Attorney’s office declined to
prosecute due to lack of investigative resources. SA Harlan attached a February 8, 2006
investigative report, completed by postal inspector David Guerra, which noted that Fresno
County public records showed that appellant owned several parcels of land used to grow grapes
for raisin production. The report included copies of checks payable to appellant from packing
companies, annual OWCP EN1032 forms signed by appellant from May 25, 2000 to May 22,
2005, and a December 30, 1998 power of attorney signed by appellant’s brother Gurjant Khosa,
listing appellant as agent.
In the 2010 investigative reports, SA Harlan noted that subpoenas had been served and
had been interviews conducted which verified that appellant operated a farming business from
which he earned income. She noted that the record included EN1032 forms signed by appellant
4

In a January 30, 2013 decision, the Merit Systems Protection Board reversed an Office of Personnel
Management decision denying appellant’s application for disability retirement benefits. It found that appellant
continued to have a medical condition that prevented him from performing the essential elements of his job. On
April 22, 2013 appellant elected FECA compensation, effective January 8, 2000.

3

on April 3, 2006, April 10, 2008, and April 16, 2009. SA Harlan and a workers’ compensation
analyst, Toby Bogges, conducted interviews with owners and managers of Victor Packing, Four
Bar C Farms, Sun-Maid Growers, Midland Tractor, Deep Star Farm Labor, Boghosian Raisin
Packing Company, a certified public accountant, and an insurance agent. Each report indicated
that appellant personally did business with each business regarding his farming.5
On November 17, 2009 SA Harlan, WCA Bogges, and State of California Employment
Development Department (EDD) investigator, Melissa Silver, interviewed appellant who, per the
report, confirmed that he was the owner of Balbir S. Khosa (BSK) Farms alone, and that he
owned Balbir and Gurjant Khosa (B&G) Farms with his brother. Appellant acknowledged that
he had been in the business of growing raisins since 1987, then in partnership with his father, but
on his own since 1999, and that he ran the day-to-day operations that included managing
employees with the help of his father.
A January 14, 2010 memorandum of interview reported that SA Harlan and a second
special agent interviewed appellant’s brother, Gurjant Khosa. The memorandum indicated that
Gurjant Khosa was aware that appellant was collecting FECA benefits for a work-related mental
condition, and that he and appellant had started B&G Farms together in 2004. He maintained
that appellant was not involved much in the business due to mental problems, and that his father
and another brother, Jasvir Khosa helped run the farm. Gurjant Khosa noted that he gave
appellant power of attorney before the employment injury but that he had forgotten about it and
had intended to revoke it. Gurjant Khosa indicated that he went to the farms every weekend or
every other weekend to conduct business, and that he hired the labor contractors. SA Harlan
informed Gurjant Khosa that records had been subpoenaed, and that these included contracts
with appellant’s signature and endorsed checks made out to the business, endorsed by appellant.
Attachments to the investigative reports included a durable power of attorney dated
December 30, 1998 which was granted to appellant by his brother Gurjant Khosa on, copies of
subpoenae duces tecum, contracts and invoices signed by appellant for farm labor and trucking
services for BSK Farms and B&G Farms dated from January 10, 2006 to December 15, 2009, a
record of check payments from November 2, 1999 to January 13, 2005, cancelled checks signed
by appellant covering periods from November 2, 1999 to November 5, 2009, federal tax returns
for BSK Farms and B&G Farms for the years 2006, 2007, and 2008, records of telephone calls
made by appellant ordering farm equipment for his brother Jasvir Khosa in August to
December 2009, and a copy of appellant’s driver’s license. On a designation of representative
form dated October 10, 2009 for B&G Farms, signed by appellant and his brother Gurjant Khosa
appellant was designated the representative of B&G Farms “to act and vote for, and in its behalf
in all proceedings and meetings of Sun-Maid Growers of California, including those where
members are permitted or required to cast a ballot or vote, and to fill any official position that the

5

The investigative report described a November 24, 2009 interview by SA Harlan and WCA Bogges with
Navdeep Sidhaliwal, owner of Deep Star Farm Labor. The report indicates that SA Harlan showed Mr. Sidhaliwal a
photograph that he identified as appellant and indicated that he conducted business with him. On December 11,
2009 WCA Bogges contacted Jose Ochoa and subpoenaed his records. Mr. Ochoa confirmed that his crews worked
for appellant during the 2009 raisin harvest and in prior years. He identified appellant’s photograph and confirmed
he was the only person with whom he did business.

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undersigned member would be eligible.” The designation was to remain in effect until written
notice was given to the contrary.6
The record includes OWCP EN1032 forms signed by appellant from May 25, 2000 to
April 22, 2013. On the form signed by him on May 25, 2000, he indicated that, for the past 15
months he worked for the employing establishment until his injury, and did not work thereafter.
Appellant was not self-employed or involved in any business enterprise. On forms signed on
June 5, 2001 and June 28, 2002, he indicated that he and his wife owned a grape farm that his
wife managed, and that he earned no income. On forms signed by him on September 6, 2003,
July 27, 2004, May 22, 2005, and April 3, 2006, appellant indicated that he had not worked for
any employer, and was not self-employed or involved in a business enterprise. He listed no
income. On EN1032 forms signed by appellant on April 10, 2008 and April 16, 2009, he
indicated that he had not worked for any employer during the past 15 months. Regarding selfemployment, he noted that he was not involved in a business. Appellant advised that his brothers
and wife ran the business. He listed no income.
On forms signed by appellant on August 7, 2010 and May 14, 2011, he indicated that he
had not worked for any employer during the past 15 months. Regarding self-employment or
involvement in a business enterprise, he indicated that he owned a farm and that before the work
injury to the current time, he was not involved in the business, which was run by his brothers and
wife. Appellant noted that he did not do any physical work, and only did tasks which his doctor
recommended, including driving around fields and going for walks in the fields. He indicated
that he did not earn anything, but that insurance paid money for crop loss each reporting period.
On the EN1032 form signed by appellant on May 26, 2012 he reported that he was not employed
the past 15 months, and that he was not involved in a business that was run by his family. He
noted that he received money from crop insurance. On the form he signed on April 22, 2013,
appellant reported that he was not employed the past 15 months, and that he was not involved in
a business that his family ran. He listed no income.
On December 5, 2013 Dr. Land described appellant’s care and noted the accepted
diagnoses, all of which were work related. He opined that appellant remained totally disabled
and that the fraud investigation aggravated his condition. On January 15 and February 14, 2014
Dr. Land reported that the depression was improved.
In a March 18, 2014 decision, OWCP found that appellant forfeited compensation for the
periods March 5, 2000 to April 3, 2006 and January 10, 2007 to April 22, 2013. It explained that
on OWCP EN1032 forms he signed on June 5, 2001, June 28, 2002, September 6, 2003, July 27,
2004, May 22, 2005, April 3, 2006, April 10, 2008, April 16, 2009, August 7, 2010, May 14,
6

Subpoenas for records were served on Sun Maid Growers of California, Raisin Administrative Committee, Deep
Star Farm Labor Contractor, Boghosian Raisin Packing Co., Caruthers Raisin Packing, Grainger, Victor Packing
Co., Hurluf V. Hansen Trucking, Jose M. Ochoa and Zaava Farm Labor Service, Midland Tractor, Wayne Ota,
CPA, and Gill Insurance. Sun Maid records included contracts signed by appellant for BSK Farms dated from
January 3, 2005 to December 15, 2009, checks from Sun Maid made out to a bank account for BSK Farms, all of
which were either endorsed by appellant or deposited to the account at United Security Bank, dated from
January 11, 2006 to October 9, 2009, in amounts ranging from $2,621.97 to $165,728.45, and to B&G Farms dated
December 1 and 16, 2006 in amounts of $18,398.49 and $4,809.58. Cancelled checks made out to BSK Farm and
B&G Farm from National Raisin Co., Boghosian Raisin Packing Co., Caruthers Raisin Packing, and Victor Packing
Co. dated October 3, 2001 to February 15, 2003 were also included.

5

2011, May 26, 2012, and April 22, 2013 he revealed that he was not involved in managing a
business enterprise but this was contradicted by evidence including checks made out to him,
contracts signed by him, and client interviews. The totality of the evidence established that
appellant was actively involved in the management and operations of the business for the periods
at issue. It noted that he received $189,739.37 in FECA compensation for the period March 5,
2000 through April 3, 2006, and $237.536.17 for the period January 10, 2007 through April 22,
2013, for a total of $427,275.54 in forfeited compensation. Computer print-outs documented
appellant’s receipt of this amount of compensation for these periods.
On March 19, 2014 OWCP made a preliminary determination that appellant received a
$427,275.54 overpayment of compensation because he failed to report employment activities for
the periods March 5, 2000 to April 3, 2006 and January 10, 2007 to April 22, 2013. It found
appellant at fault in creating the overpayment because he knowingly accepted compensation to
which he was not entitled. Appellant was provided an overpayment action request and an
overpayment recovery questionnaire (Form OWCP 20).
Appellant, through his then-representative, timely requested a hearing with OWCP’s
Branch of Hearings and Review from the March 18, 2014 forfeiture decision and requested a
prerecoupment hearing from the March 19, 2014 preliminary overpayment finding.7
Appellant did not appear at the hearing, held on December 15, 2014. Counsel argued at
the hearing that, as appellant owned a farm before the work injury and had only signed a few
papers, his work was de minimis. Testimony was taken from witnesses. Dr. Land testified and
described appellant’s previous and current psychiatric treatment, and his current symptoms,
noting that he had been tested by Dr. Eric Morgenthaler and Dr. Seymour. He diagnosed PTSD
and opined that appellant could not work and could not comprehend the questions on an EN1032
form. Dr. Land asserted that psychological testing indicated that appellant was not attempting to
defraud. Mr. Ochoa disputed that he had conducted business with appellant, but rather stated
that he conducted business solely with his brothers Jasvir and Gurjant Khosa.
Navdeep Bhaliwal, owner of Deep Star Farm Labor, also testified that he disagreed with
the OIG report, stating that he only did business with appellant before his injury and afterward
dealt with Jasvir and Gurjant Khosa. Appellant’s brother Jasvir testified that he was the oldest of
four brothers and each owned a farm. He stated that appellant had not worked since the
employment injury, and that Jasvir did all the work, made all the contracts, and only gave
appellant paperwork to sign. Jasvir testified that he was the sole contract negotiator for
appellant’s farm, and that appellant could not drive. Appellant’s brother Gurjant testified that he
worked for the employing establishment from 1997 to September 2000. He stated that at that
time he gave appellant power of attorney to handle affairs when he left. Gurjant maintained that,
since the accident, appellant was not capable of carrying on normal daily functions so all
brothers helped out and his brother Harvinder Khosa took over appellant’s finances until Gurjant
returned in 2000 at which time Gurjant resumed all bookkeeping.
Gurjant testified that the only work appellant did was sign documents and that Jasvir was
always with appellant when they needed to make a decision. Appellant’s brother, Harvinder,
testified that he owned a market and that appellant only came there to get gas for his car.
7

Dr. Land continued to submit monthly form reports, noting appellant’s increased paranoia.

6

Counsel stated that he did not want appellant to testify because of the pending criminal fraud
case. She maintained that appellant had not participated in any physical work activity or made
any real business decisions since the January 2000 employment injury.
Regarding the overpayment, the hearing representative discussed the definition of
knowingly and advised that appellant should submit the overpayment questionnaire with
supplemental financial statements. Counsel maintained that appellant was totally disabled due to
mental confusion and therefore did not knowingly accept compensation to which he was not
entitled.
On January 22, 2015 the employing establishment forwarded a sworn declaration of that
date from SA Harlan. SA Harlan recounted investigating appellant for misrepresenting
information on EN1032 forms with respect to his income and outside income sources, based on
allegations that he operated a raisin farm without reporting income from and/or participation in
this activity. She advised that interviews were conducted with numerous individuals who
engaged in business transactions with appellant, all of which were described in the investigative
report. SA Harlan noted that copies of contracts, checks, and other financial records signed by
appellant were reviewed, and that a copy of the report with attachments was sent to OWCP. She
indicated that she reviewed the transcript from the December 15, 2014 hearing and disagreed
with Dr. Land that appellant had impaired judgment, maintaining that this was contradicted by
medical reports from Dr. Land. SA Harlan noted that she had personally interviewed appellant
on November 17, 2009 along with a union representative and that during the interview appellant
communicated in a proper and appropriate manner. She advised that appellant understood the
questions presented to him and responded appropriately, that his responses were logical,
coherent, and directed to the question that were asked, that he answered questions regarding his
tax forms, persons who assisted him in operating the farm, and his role in operating the farm, and
further described his involvement as running the day-to-day farm operations including shaking
raisins.8 SA Harlan related that at no time during this interview did appellant display any
incoherence, illogical communication, impaired judgment or delusional thought processes as
described by Dr. Land. She noted that digital video discs (DVDs) of the interview were
forwarded to OWCP. SA Harlan further indicated that she and another special agent arrested
appellant at his residence without incident and that, during the arrest, appellant claimed that he
could not speak English and requested that his son serve as an interpreter. She also related that
she was present at a hearing on appellant’s criminal case, and that he did not request an
interpreter and was able to speak and understand English. SA Harlan advised that, on
January 20, 2015, an assistant district attorney confirmed that appellant was charged with two
counts of fraud, and the case was going forward in California state court.

8

SA Harlan indicated that WCA Bogges interviewed Mr. Ochoa. She noted that she spoke with produce
wholesalers who purchased crops from appellant, vendors who provided transportation and equipment, an insurance
agent, the farm’s bookkeeper, and with representatives of Victor Packing, Sun-Maid Growers of California,
Caruthers Raisin Packing, and Boghosian Raisin Packing Company, who confirmed their business arrangements to
purchase raisins from BSK Farms and dealings with appellant when negotiating contracts. Each of these companies
provided copies of contracts, invoices and checks made payable to appellant and to B&G Farms. The details of
these interviews and the records provided were included in the investigation report. SA Harlan also indicated that
she interviewed a representative from Hurluf Hansen Trucking who provided trucking services for transporting
crops. The representative provided documents pertaining to hauling services and indicated that he dealt with
appellant.

7

In correspondence dated February 14, 2015, counsel disputed SA Harlan’s declaration
and maintained that appellant’s brother Gurjant operated the farm.
By decision dated March 12, 2015, an OWCP hearing representative set aside the
March 18, 2014 forfeiture decision and the March 19, 2014 preliminary overpayment
determination. He found that it was undisputed that appellant owned an interest in two farms
and signed EN1032 forms stating that he was not involved in a business enterprise or that he
performed no work or had no active function in the business. The hearing representative further
found that it was undisputed that appellant signed checks and contracts in connection with the
ownership of the farms. He found, however, that further development was needed because it was
unclear if appellant had earnings from work and, if so, whether he knowingly omitted or
underreported those earnings. The hearing representative noted that SA Harlan had not provided
detailed transcripts, affidavits, or signed statements from the interviewees to supplement her
summaries, and that the signed checks and contracts did not necessarily establish, on their own,
earnings from work rather than a passive business action, as sworn hearing testimony indicated.
He noted that he had reviewed the video and audio recordings but advised that appellant should
have an opportunity to review them. The hearing representative found that Dr. Land’s
statements at the hearing called his objectivity into question about appellant’s competency, and
noted that a March 2013 mental competency examination by Harold L. Seymour, Ph.D., a
clinical psychologist, was not in the record. On remand OWCP was to obtain a copy of
Dr. Seymour’s report. It was also to ask the employing establishment if there were any signed
statements or affidavits provided by the witnesses who were interviewed by SA Harlan and, if
so, to provide them to OWCP. Following this and other development needed, OWCP was to
issue a de novo forfeiture decision and, if appropriate, a new preliminary overpayment
determination.
In separate letters dated April 16, 2015, OWCP asked appellant to provide a copy of
Dr. Seymour’s report, and asked the employing establishment to provide copies of the video and
audio recordings and any signed statements or affidavits provided to SA Harlan.
Appellant’s representative forwarded a March 27, 2013 report in which Dr. Seymour
noted that criminal proceedings against appellant had been suspended pursuant to court order for
his evaluation. Dr. Seymour noted that records were supplied by defense counsel and the district
attorney including the January 2010 investigation report, and medical records from attending
physicians and OWCP physicians. He advised that he spoke with Dr. Land on March 26, 2013,
who told Dr. Seymour that appellant was psychiatrically stable at present and had increased
anxiety secondary to his criminal case. Dr. Seymour described the criminal charges against
appellant, the history of the work injury, and appellant’s medical and psychological history. He
described test results, noting that appellant could identify the charges, knew the role of a judge,
jury, his attorney, and the district attorney, understood a plea bargain, and indicated that he felt
stable and ready to proceed with the criminal case.9 Dr. Seymour advised that appellant could
read English at about a fourth grade level which could have implications when considering any
documents he could be asked to review or sign, such as a plea form. He found that on mental
status examination appellant appeared fully oriented and appeared to be of average intelligence
9

Dr. Seymour administered the Revised Competency Assessment Instrument test, a reading examination, and a
mental status examination.

8

with intact insight and judgment. Dr. Seymour diagnosed chronic PTSD and possible mood
disorder. He concluded that appellant was competent to stand trial.
Appellant’s representative forwarded a March 26, 2015 signed statement in which Steve
Nelson with Midland Tractor advised that the company had done business with B&G Farm since
2003, and that all equipment purchase negotiations were conducted by appellant’s brother Jasvir
and not appellant. In a signed statement, Jerry Emerzian with Rancho Realty indicated that he
had dealt with appellant and Gurjant Khosa, a brother, for 20 years and had always dealt with
Gurjant for appellant’s business dealings, and if he spoke with appellant, appellant would refer
him to Gurjant. In an April 24, 2015 notarized statement, Karl L. Noyes, an accountant, noted
that he prepared appellant’s tax returns for the past 10 years, and that all of the bookkeeping and
farming information had been provided by Gurjant Khosa, who paid all bills and handled
financial matters for appellant. In an April 30, 2015 notarized statement, Michelle Halgren, a
real estate broker with Farmers Financial Services, indicated that Gurjant Khosa was the major
decision-maker for all related loans for both appellant personally and B&G Farms. In a May 12,
2015 signed statement, Jim Percy, a buyer with Caruthers Raisin Packing Co., advised that he
did business with B&G Farms since 2005 and that all raisin arrangements for appellant, Gurjant
Khosa, and B&G Farms were conducted by Jasvir Khosa, and never with appellant, and that no
negotiations had been conducted with appellant.
In May 14, 2015 correspondence, the employing establishment indicated that a copy of
investigative audio and visual recordings was forwarded to OWCP by the OIG. The employing
establishment forwarded a signed affidavit in which SA Harlan reiterated declarations she made
in her January 22, 2015 statement. She indicated that she had been a sworn law enforcement
officer for 15 years, and that all interviews were summarized in the Report of Investigation.
SA Harlan maintained that it was not OIG policy to obtain sworn statements from witnesses
during an investigation, and it was not a practice that was generally followed in federal law
enforcement. She continued that she reviewed copies of contracts, checks, and other financial
records signed by appellant. As to the interview with appellant, SA Harlan noted that appellant
discussed various account irregularities regarding his account for his farm and for farms that
were operated by other family members, and discussed personal loans he obtained to finance the
farming operation in 2008 and 2009 due to the impact of price stabilization for raisins. She
advised that she was at the interview, had reviewed the audio and video tapes of the interview,
and swore and affirmed that the written transcript of the interview was true and accurate.
SA Harlan concluded that, for purposes of OWCP’s proceeding, she incorporated the statements
included in the report of investigation as sworn declarations, and declared under penalty of
perjury under the laws of the United States that the foregoing was true and correct.
A written interview transcript conducted on November 17, 2009 was submitted on
May 19, 2015. EDD Silver conducted the interview with appellant. SA Harlan was also present.
EDD Silver asked appellant questions regarding forms required for his farming operation, the
contractors hired, and to whom the grapes were sold. He replied that he had been farming grapes
for raisins since 1987 with his father and brothers in partnership, and the property was later
separated, noting that since 1999 he had one property alone and others with his brothers.
Appellant discussed crop yields and business practices. He indicated that he did not do the
business bookkeeping, that his brothers ran the business and were there daily to supervise,
although he also indicated that he hired contractors to do the work, that he would mechanically
shake grapes at his house, and that he also supervised contract workers.
9

Dr. Land continued to submit form reports noting appellant’s status. On May 21, 2015 he
opined that appellant was psychotic.
In a June 29, 2015 decision, OWCP found that appellant forfeited compensation for the
periods March 5, 2000 to April 3, 2006 and January 10, 2007 to April 22, 2013. The decision
noted that SA Harlan submitted a detailed declaration and copy of the November 17, 2009
interview transcript, and that Dr. Seymour had provided a March 27, 2013 report. OWCP also
noted appellant’s responses on OWCP EN1032 forms, signed by him on June 5, 2001, June 28,
2002, September 6, 2003, July 27, 2004, May 22, 2005, April 3, 2006, April 10, 2008, April 16,
2009, August 7, 2010, May 14, 2011, May 26, 2012, and April 22, 2013, the OIG reports, and
corroborating evidence. It found that the totality of the evidence clearly established that
appellant knowingly omitted earnings, work activities, and involvement in a business enterprise
for the forfeiture periods. OWCP found that he received FECA compensation of $189,739,37
for the period March 5, 2000 to April 3, 2006, and $237.536.17 for the period January 10, 2007
to April 22, 2013, for a total of $427,275.54 in forfeited compensation.
On June 30, 2015 OWCP issued a preliminary determination that appellant received a
$427,275.54 overpayment of compensation because he failed to report employment activities for
the periods March 5, 2000 to April 3, 2006 and January 10, 2007 to April 22, 2013 on OWCP
EN1032 forms. It found appellant at fault in creating the overpayment because he knowingly
failed to report business activities and submitted falsified EN1032 forms covering the above
periods. Appellant was provided an overpayment action request and an overpayment recovery
questionnaire (Form OWCP-20).
Appellant’s representative timely requested a hearing from both the June 29, 2014
forfeiture decision and the June 30, 2015 preliminary overpayment finding. Appellant disagreed
that the overpayment occurred, disagreed with the amount of the overpayment, and disagreed
with the fault finding, indicating that he did not work.
In form reports dated July 24, 2015 to March 31, 2016, Dr. Land described appellant’s
condition. He also discussed both appellant’s FECA proceedings and his criminal case, which
continued to be held in abeyance.
On March 16, 2016 OWCP forwarded appellant an EN1032 form to complete. Appellant
was afforded 30 days to complete and return the form.
Appellant did not testify at the hearing, held on April 5, 2016. Appellant’s representative
noted reviewing the video and audio discs and maintained that appellant did not comprehend
what was going on during the interview. He noted that the printed transcript of the interview
contained 78 places found indiscernible by the transcriber. Dr. Land testified that appellant
appeared confused and impaired during the interview. He asserted that this was supported by
Dr. Morgenthaler’s test findings and opined that appellant could not understand the EN1032
form. Appellant’s brother Gurjant Khosa testified that he had conducted all financial
transactions since he returned to the business in September 2000, including two loans. He
maintained that he instructed appellant to sign all documents. Appellant’s brother Jasvir Khosa
testified that appellant could do nothing, and that he made all business decisions. Appellant’s
representative indicated that he would provide Dr. Morgenthaler’s report and argued that, due to
appellant’s psychiatric illness, he did not knowingly misstate information on EN1032 forms.
10

An overpayment recovery questionnaire, signed by appellant’s brother Gurjant on May 5,
2016, noted monthly income of $2,340.00, monthly expenses of $39,755.51, and assets of
$37,974.12. He attached appellant’s 2015 income tax return, bank and Thrift Savings Account
statements, and bills for property tax, mortgages, a home equity loan, utilities, and credit cards.
In a May 12, 2016 decision, OWCP suspended appellant’s wage-loss compensation,
effective May 29, 2016, because he did not submit the required EN1032 form.
On May 19, 2016 SA Harlan provided another sworn statement. She again described the
investigation and disagreed with Dr. Land’s assessment of appellant’s capacity in the
November 17, 2009 interview. SA Harlan noted that appellant’s criminal case for fraud was
pending, and that he had been found competent and able to communicate effectively with
counsel and the court in that case.10 She indicated that she was present during the interview of
appellant and affirmed that the video and audio recordings were true and accurate.
In a June 22, 2016 decision, an OWCP hearing representative found that appellant
forfeited compensation for the periods March 5, 2000 to April 3, 2006 and January 10, 2007 to
April 22, 2013. She noted that the record established that appellant signed multiple and various
contracts and other business documents with different companies, and endorsed checks related to
his raisin business, and thus he was engaged in a variety of business activities that reasonably
could be characterized as active participation in business. The hearing representative also
finalized the overpayment decision, finding that appellant was at fault in creating a $427,275.54
overpayment of compensation. She found Dr. Land’s opinion, that appellant did not understand
English and was mentally incapable of understanding reporting requirements, of limited
probative value, noting that appellant graduated from high school and attended junior college in
the United States, and that Dr. Seymour had found him competent to stand trial. As to
repayment, the hearing representative noted that appellant’s brother Gurjant completed the
OWCP-20 form. She noted that appellant’s income was not sufficiently described, that there was
insufficient documentation to support the excessive monthly expenses claimed. She found there
was sufficient documentation to show that appellant could repay the overpayment at the rate of
$1,000.00 a month.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that the Secretary of Labor may require a partially
disabled employee to report his earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies. It states that 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
10

Information regarding the criminal case indicates that he was charged in California state court with two felony
counts of false or fraudulent claims or statements, and that the case was continued on May 12, 2016.
11

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

11

Section 10.5(g) of OWCP’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes 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.”12
In order to establish that a compensationer should forfeit the compensation received for
the periods covered by completed OWCP EN1032 forms, the evidence must establish that he or
she knowingly omitted or understated his or her employment and earnings.13 As forfeiture is a
penalty, it is not enough merely to establish that there were underreported earnings from
employment.
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.14 The inquiry is
whether appellant knowingly omitted or understated his 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; intentionally.”15 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.16
ANALYSIS -- ISSUE 1
OWCP found that appellant forfeited his right to compensation for the periods March 5,
2000 to April 3, 2006 and January 10, 2007 to April 22, 2013. The Board finds that the record
establishes that appellant knowingly omitted employment activities and earnings on EN1032
forms which cover the periods March 5, 2000 to April 3, 2006 and January 10, 2007 to
12

20 C.F.R. § 10.5(g).

13

Robert R. Holmes, 49 ECAB 161 (1997); 20 C.F.R. § 10.5(n).

14

Robert Ringo, 53 ECAB 258 (2001).

15

Joan Ross, 57 ECAB 694 (2006).

16

Id.

12

August 7, 2010. The Board further finds that OWCP has not established that appellant’s
compensation should be forfeited for the period August 8, 2010 to April 22, 2013 as the record is
essentially silent regarding appellant’s work activities, if any, for this period.
The EN1032 forms forwarded by OWCP to appellant advised him of his responsibility to
complete the forms and provide relevant information concerning his employment status and
earnings during the 15-month period covered by the forms. These forms signed by appellant
noted that he must report all self-employment or involvement in business enterprises and
specifically listed farming. This included such activities as overseeing a business of any kind,
including a family business. The explicit language of the EN1032 forms clearly advised
appellant that the nature of his farming business required him to report such activities.
On EN1032 forms signed by appellant on May 25, 2000, September 6, 2003, July 27,
2004, May 22, 2005, and April 3, 2006, he indicated that he did not work after the date of injury.
On EN1032 forms he signed on June 5, 2001 and June 28, 2002, appellant noted that he and his
wife owned a grape farm and his wife managed the farm. On the forms signed by appellant on
April 10, 2008 and April 16, 2009, he indicated that he was not involved in the business, which
was run by his wife and brothers. On the EN1032 form signed by appellant on August 7, 2010,
he indicated that he was not involved in the business which was run by his brothers and his wife,
and that he did no physical work other than occasional driving around the fields and going for
walks.
Other than these brief statements on the EN1032 forms, there is no evidence of record
regarding his wife’s inclusion in the farming business. As to the brothers’ involvement, the
record is replete with evidence showing appellant’s involvement in the business for the periods
March 5, 2000 to April 3, 2006 and January 10, 2007 to August 7, 2010.
Appellant’s signing of a strongly worded certification clause on each of the EN1032
forms further demonstrates that he was aware of the materiality of his failure to report his
employment. He did not appear at either the December 15, 2014 or the April 5, 2016 hearing.
Counsel prevented appellant from testifying during the pendency of his criminal case.17 While
Dr. Land maintained that appellant was not capable of understanding the EN1032 forms, this is
belied by the evidence of record. Dr. Land testified that he relied on testing by Dr. Morgenthaler
but Dr. Morgenthaler’s test results are not in the record. Dr. Seymour, on the other hand, found
that appellant was competent to stand trial.
Although appellant’s brothers also testified about appellant’s mental capacity, the Board
finds that, based on the evidence of record, their testimony is of diminished probative value.
Jasvir Khosa testified that he only gave appellant paperwork to sign. He also testified that
appellant did not drive. Appellant’s brother, Harvinder Khosa, who owns a market and testified
at the 2014 hearing, stated that appellant only came to the market to get gas for his car, thus
contradicting his brother Jasvir about whether appellant drove. Brother Gurjant Khosa testified
that appellant was not capable of carrying on normal daily functions. The record, however,
contains a designation of representative form dated October 10, 2009 for B&G Farms, signed by
appellant and his brother Gurjant, designating appellant as the representative of B&G Farms “to
act and vote for, and in its behalf in all proceedings and meetings of Sun-Maid Growers of
17

As noted, the criminal case continued to be held in abeyance.

13

California, including those where members are permitted or required to cast a ballot or vote, and
to fill any official position that the undersigned member would be eligible.” The designation was
to remain in effect until written notice was given to the contrary.
At the November 17, 2009 interview which is captured on DVD recordings appellant
discussed crop yields and business practices. He indicated that he did not do the business
bookkeeping, that his brothers ran the business, and that they were there daily to supervise.
Appellant, however, also stated that he hired contractors to do the work, that he would
mechanically shake grapes at his house, and that he also supervised the contract workers.
Moreover, in a clear and articulate letter dated August 5, 2008, appellant signed a letter
explaining his reasons for not signing the SSA form 581 as requested by OWCP.
The Board thus finds that the evidence of record fails to establish that appellant lacked
the necessary competence to properly complete the EN1032 forms.18
As to whether appellant knowingly omitted or underreported business activity, in addition
to the DVD evidence, the record contains copious documentary evidence including a durable
power of attorney granted to appellant by his brother Gurjant on December 30, 1998, copies of
subpoenae duces tecum, work agreements and invoices signed by appellant for farm labor and
trucking services for BSK Farms and B&G Farms dating from January 10, 2006 to December 15,
2009, a record of check payments from November 2, 1999 to January 13, 2005, cancelled
checks, all signed by appellant covering periods from November 2, 1999 to November 5, 2009,
federal tax returns for BSK Farms and B&G Farms for the years 2006, 2007, and 2008, and
records of telephone calls made by appellant ordering farm equipment for his brother Jasvir in
August to December 2009, plus the October 10, 2009 designation of representative form, noted
above. Mr. Ochoa and Mr. Bhaliwal19 testified at the December 15, 2014 hearing that they
disagreed with the OIG report regarding their responses and indicated that they did not conduct
business with appellant. However, this does not render the report of no probative value as it is
reinforced by copious documentation of appellant’s business activities. Likewise, the fact that
additional business representatives provided statements or testimony that appellant did not
conduct business with them does not prove that he conducted no business at all.
On appeal appellant cites to C.D. as support for his case. His reliance on C.D., however,
is without merit.20 In that case, the Board found that OWCP’s reliance on corporation papers,
without sufficient documentary support to show that the employee had carried out any duties,
was insufficient to meet its burden of proof to establish forfeiture. In the case at hand, as noted,
the record contains DVDs of an interview with appellant plus copious business documents
signed by appellant. OWCP’s claims examiner, appellant and counsel, and the Board were all
able to review not only the investigative report with affidavits, the transcript of the interview, but
also appellant’s recorded statements via the DVDs where he discussed his farming business that

18

See F.H., Docket No. 07-1379 (issued November 24, 2008).

19

It appears that Mr. Bhaliwal is identified as Navdeep Sidhaliwal in the OIG report.

20

Supra note 3.

14

began in 1987. This additional evidence has weight beyond that of the mere investigative
report.21
The EN1032 forms require reporting employment activities even if no wages are earned.
Appellant’s activities included management activity of the farm operations. Thus, the Board
finds that, based on appellant’s omissions of employment on EN1032 forms for the periods
March 5, 2000 to April 3, 2006 and January 10, 2007 to August 7, 2010, appellant knowingly
failed to report employment activity.22
However, the record contains insufficient evidence to support appellant’s business
activity after November 17, 2009, following appellant’s investigative interview. Thus, OWCP
has not established that, under section 8106(b)(2) of FECA, appellant’s compensation should be
forfeited for the period after August 7, 2010, when he signed an EN1032 form that covered the
prior 15 months and reported no personal business activity.
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of OWCP’s implementing regulation provides as follows:
“(a) 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. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129
and other relevant statues.”23
ANALYSIS -- ISSUE 2
OWCP regulations provide that OWCP may declare an overpayment of compensation for
the period of a given forfeiture of compensation. If a claimant has any employment, including
self-employment or involvement in a business enterprise, during a period covered by a EN1032
form which he or she fails to report, the claimant is not entitled to any compensation for any
portion of the period covered by the report, even though he or she may not have had earnings
during a portion of that period.24
As noted above, the Board has modified OWCP’s forfeiture finding to determine that
appellant forfeited compensation for the periods March 5, 2000 to April 3, 2006 and January 10,
2007 to August 7, 2010, but not for the period August 8, 2010 to April 22, 2013. As OWCP’s
21

See G.R., Docket No. 15-1047 (issued July 8, 2016).

22

See J.A., Docket No. 14-1863 (issued July 7, 2015).

23

20 C.F.R. § 10.529.

24

Id.

15

finding of an overpayment of compensation in the amount of $427,275.54 was based on the
entire period up to April 22, 2013, the case must be remanded to OWCP to recalculate the
overpayment, based on appellant’s forfeiture of compensation for the periods March 5, 2000 to
April 3, 2006 and January 10, 2007 to August 7, 2010 only.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”25
Section 10.433(a) of OWCP’s regulations provides that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”26
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.27
ANALYSIS -- ISSUE 3
OWCP properly determined that appellant was at fault in the creation of the overpayment
because he failed to provide information which he knew or should have known to be material on
OWCP EN1032 forms covering the periods March 5, 2000 to April 3, 2006 and January 10,
2007 to August 7, 2010. As discussed above, the record supports that appellant had employment
activity for these periods, covered by EN1032 forms signed by him on May 25, 2000, June 5,
25

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

26

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

27

Id. at § 10.433(b); Duane C. Rawlings, 55 ECAB 366 (2004).

16

2001, June 28, 2002, September 6, 2003, July 27, 2004, May 22, 2005, April 3, 2006, April 10,
2008, April 16, 2009, and August 7, 2010.
The explicit language of the EN1032 forms demonstrates that appellant knew or should
have known that the nature of his farming work would require him to report such employment
activities on the forms.28 Since appellant had unreported employment activity during these
periods, he knowingly failed to furnish this material information to OWCP. Appellant signed a
certification clause on the EN1032 forms which advised him in explicit language that he might
be subject to civil, administrative or criminal penalties if he knowingly made a false statement or
misrepresentation or concealed a fact to obtain compensation. By signing these forms, appellant
is deemed to have acknowledged his duty to fill out the forms properly, including the duty to
report any employment, self-employment, or involvement in a business enterprise. As appellant
indicated that he had no employment or earnings from employment during the covered periods,
he failed to furnish information which he knew or should have known to be material to OWCP.
As he is at fault in creating the overpayment, it is not subject to waiver of recovery.29
However, as noted, the precise amount of the overpayment will be calculated by OWCP
on remand. After this and further proceedings deemed necessary, OWCP shall issue an
appropriate preliminary and final overpayment decision.
Lastly, the Board notes that its jurisdiction is limited to reviewing those cases where
OWCP seeks recovery from continuing compensation benefits under FECA. Appellant’s wageloss compensation was suspended on May 29, 2016, prior to the decision on appeal dated
June 22, 2016. Thus, as appellant was not in receipt of wage-loss compensation benefits at the
time of OWCP’s decision, the Board does not have jurisdiction with respect to OWCP’s
recovery of the overpayment.30
CONCLUSION
The Board finds that OWCP properly determined that appellant forfeited his right to
compensation pursuant to section 8106(b)(2) of FECA, for the periods March 5, 2000 to April 3,
2006 and January 10, 2007 to August 7, 2010 and that he was at fault in creating the resulting
overpayment of compensation. The case is remanded to OWCP for calculation of the exact
amount of the overpayment and issuance of an appropriate preliminary overpayment
determination and de novo final overpayment decision.

28

J.A., supra note 22.

29

Harold F. Franklin, 57 ECAB 387 (2006).

See D.R., 59 ECAB 148 (2007) (with respect to the recovery of an overpayment, the Board’s jurisdiction is
limited to those cases where OWCP seeks recovery from continuing compensation benefits under FECA).
30

17

ORDER
IT IS HEREBY ORDERED THAT the June 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part.31
Issued: December 12, 2017
Washington, DC

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

31

Colleen Duffy Kiko, Judge, participated in the original decision but was no longer a member of the Board
effective December 11, 2017.

18