United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.P., Appellant

and

DEPARTMENT OF THE ARMY, CENTER 

FOR HEALTH PROMOTION &

PREVENTATIVE MEDICINE, Aberdeen, MD, 

Employer

__________________________________________

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Docket Nos. 17-0873; 17-1018

Issued: April 16, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 March 10 and April 10, 2017 appellant filed timely appeals from merit decisions of the 

Office of Workers’ Compensation Programs (OWCP) dated December 22, 2016, January 6, 

March 15 and 16, 2017. Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

ISSUES

The issues are: (1) whether OWCP properly suspended appellant’s compensation benefits 

for failing to attend a scheduled medical examination; (2) whether OWCP met its burden of proof 

to terminate appellant’s wage-loss compensation and medical benefits effective August 11, 2016; 

(3) whether appellant has met his burden of proof to establish any continuing disability or medical 

residuals causally related to his February 14, 1996 employment injury on or after August 11, 2016; 

(4) whether appellant received an overpayment of compensation in the amount of $20,180.16 

 

1 5 U.S.C. § 8101 et seq.
2

during the period August 11, 2016 through January 7, 2017 for which OWCP found he was at 

fault; (5) whether appellant received an overpayment of compensation in the amount of $6,201.72 

for the period June 26 through August 10, 2016 for which OWCP found he was at fault; and 

(6) whether OWCP properly denied waiver of recovery of the overpayments because appellant 

was at fault in their creation.

FACTUAL HISTORY

On February 14, 1996 appellant, then a 49-year-old safety and occupational health 

specialist, was climbing stairs in the performance of duty when he slipped on snow and ice twisting 

his knee, as well as hitting his low back, neck, and head on steps. He stopped work on that day.

OWCP accepted his claim for cervical sprain, lumbosacral sprain with contusions, and left knee 

contusions and authorized compensation benefits.2 OWCP placed appellant on the periodic rolls 

on November 25, 1996. It subsequently accepted the claim for aggravation of torn left meniscus 

and authorized left knee arthroscopy. Appellant declined to undergo this authorized surgical 

procedure. On August 10, 2009 OWCP also accepted additional conditions of aggravation of 

degenerative disc disease of the lumbar and cervical spines.

Dr. C. Gregory Kang, a Board-certified physiatrist, completed a report on March 4, 2016.

He noted appellant’s history of injury on February 14, 1996 and diagnosed lumbar degenerative 

disc disease, lumbosacral ligament sprain, neck sprain, medial meniscus tear, degenerative disc 

disease of both the cervical and lumbar spines, and osteoarthritis of the knees. Dr. Kang opined 

that appellant was totally disabled and in chronic daily pain.

On May 2, 2016 OWCP referred appellant for a second opinion evaluation with

Dr. James A. Maultsby, a Board-certified orthopedic surgeon, scheduled for May 25, 2016. The 

March 24, 2016 statement of accepted facts (SOAF), which was provided to Dr. Maultsby, listed 

accepted conditions as left knee contusion, cervical sprain, lumbar sprain with contusions, and 

aggravation of torn left meniscus as well as aggravation of lumbar and cervical disc disease.

In a May 10, 2016 letter, OWCP referred appellant for a functional capacity evaluation 

(FCE) on May 25, 2016. In a May 18, 2016 letter, the FCE provider cancelled the May 25, 2016 

FCE appointment. She noted that during her third conversation with appellant he threatened to 

sue if he was touched. In a May 24, 2016 telephone memorandum, the FCE provider informed 

OWCP that appellant called and advised in a threatening tone that he would sue the provider if 

touched. She alleged that appellant called three or four times and sent pages of documents. As a 

result, the FCE provider cancelled the appointment. 

OWCP, in a May 31, 2016 letter, proposed to suspend appellant’s compensation pursuant 

to 5 U.S.C. § 8123(d) as he did not report for the May 25, 2016 FCE. It afforded him 14 days to 

provide “good cause” for his obstruction of the FCE, his threatening demeanor to sue, repetitive 

calls, and pages of documentation. OWCP directed appellant to fully cooperate with any 

rescheduled examination and contact OWCP immediately so that it could reschedule the 

examination.

 

2 Appellant requested direct deposit of his wage-loss compensation on August 19, 1996. 
3

In his May 25, 2016 report, Dr. Maultsby noted that appellant was one hour late for his 

appointment. He noted that he lightly touched appellant on the top of the head, which resulted in 

a report of severe pain. Appellant had a positive Waddell’s test and cogwheel motion in his neck 

and back. A Jamar test was performed with barely 10 pounds of pressure. Appellant showed very 

poor effort. Dr. Maultsby found that appellant’s findings documented symptom magnification and 

lack of effort. He reported that appellant was able to get on the examining table without 

difficulties, but indicated that he could not extend his knees. Appellant had full range of motion 

of his knee and could walk without support. Appellant had excellent muscle definition despite 

assertions of weakness. Dr. Maultsby opined that appellant was at maximum medical 

improvement (MMI) from his February 14, 1996 work injury. He found that appellant could 

perform light-to-moderate work eight hours a day. Dr. Maultsby concluded that appellant had no 

residuals despite continued treatment and advised that he could return to his date-of-injury job full 

time with no restrictions. 

On June 8, 2016 appellant disputed that he obstructed the May 25, 2016 FCE as the 

provider cancelled the appointment and he never refused to attend the scheduled evaluation. 

Appellant admitted that he called the provider to offer his MRI scans at two different numbers 

twice for a total of four calls. He also admitted that he informed the provider that given his medical 

conditions he could be paralyzed if improperly manipulated and that, if this happened, he would 

sue everyone involved. Appellant concluded that he did not refuse to submit to the evaluation and 

that he had a right to submit documentation and to sue if injured.

In a June 15, 2016 letter, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits based on Dr. Maultsby’s findings. It afforded appellant 30 

days to submit evidence or argument if he disagreed with the proposed termination.

By decision dated June 23, 2016, OWCP finalized its suspension of appellant’s wage-loss 

compensation and medical benefits under 5 U.S.C. § 8123(d) effective June 26, 2016. On July 22, 

2016 appellant requested a review of the written record from OWCP’s Branch of Hearings and 

Review.

On July 15, 2016 appellant disagreed with the proposed termination of his wage-loss 

compensation and medical benefits. He submitted a July 11, 2016 report from Dr. William L. 

Mills, a Board-certified orthopedic surgeon. Dr. Mills had previously diagnosed spinal stenosis 

with a recommendation for decompression and arthrodesis in 2013. He reviewed appellant’s 

cervical and lumbar magnetic resonance imaging (MRI) scans which indicated spinal stenosis at 

L3-4 and L4-5 as well as multilevel cervical spondylosis. On examination, appellant had very 

little lumbar flexion/extension and very little cervical spine range of motion. He had normal motor 

strength and normal reflexes. Dr. Mills diagnosed chronic cervical and lumbar pain with lumbar 

spinal stenosis and cervical and lumbar radiculopathy as well as a torn meniscus in the left knee. 

He reviewed appellant’s FCE and found that appellant could perform sedentary work, but not his 

date-of-injury position due to the requirements of climbing ladders, and crawling through hospitals 

and elevator shafts. Dr. Mills completed a work capacity evaluation (OWCP-5) on July 13, 2016 

and found that appellant could sit, walk, and stand for more than two hours each. Appellant could 

occasionally reach above the shoulder, twist, bend, stoop, perform repetitive movements with his 

wrists and elbows, push, pull, lift, and kneel. He could not squat or climb. Dr. Mills reported that 

while standing or walking appellant must use a cane or other assistive device. 
4

Dr. Kang completed a work capacity evaluation (OWCP-5) on July 12, 2016 and indicated 

that appellant could perform all activities less than two hours a day, except operating a motor 

vehicle which he could perform for two to three hours a day. He provided appellant with a sevenpound weight limit for pushing, pulling, and lifting.

On July 19, 2016 appellant submitted a July 8, 2016 FCE. This testing found that appellant 

demonstrated consistent and maximal effort and was a reliable indication of his true functional 

abilities. The testing found that appellant’s lifting capabilities were in the sedentary physical 

demand category lifting up to 10 pounds for 33 percent of the workday. The FCE found that 

appellant was not capable of performing his date-of-injury position as he could not lift 20 pounds 

occasionally, could not stand or walk constantly and could not reach, crawl, climb, or twist to the 

extent required by his date-of-injury position.

By decision dated August 11, 2016, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective that date. It found that Dr. Maultsby’s report was 

entitled to the weight of the medical evidence and established that appellant’s disability and 

medical residuals had resolved. Appellant requested a review of the written record before an 

OWCP hearing representative on September 12, 2016.

By decision dated December 22, 2016, OWCP’s hearing representative found that OWCP 

properly suspended appellant’s compensation benefits beginning June 26, 2016. He further noted 

that OWCP had mistakenly not halted appellant’s compensation benefits as intended. The hearing 

representative found that although appellant alleged that he was restricted from traveling for the 

examination, he provided no compelling medical evidence to support this assertion. He further 

noted that appellant had not provided any evidence of intended cooperation with a new FCE and 

that his continued comments and action “only reinforce the impression that he is unwilling to fully 

participate in the medical examination process.”

In a letter dated December 23, 2016, appellant alleged that he underwent an FCE on July 8, 

2016 and provided this to OWCP on July 15, 2016. He alleged that Dr. Maultsby examined the 

wrong knee, that he failed to carry out deep tendon reflexes, and that he failed to complete a 

sensory examination.

Dr. Kang examined appellant on April 28, 2016 and October 25, 2016 due to pain in the 

neck, shoulder, and low back. He also noted appellant’s left knee was still painful from his prior 

meniscal injury. Appellant reported difficulty with bending, stooping, walking, and standing. 

Dr. Kang diagnosed cervical degenerative disc disease, lumbar degenerative disc disease, 

osteoarthritis, and left meniscal tear. In a December 19, 2016 work capacity evaluation (OWCP5), he found that appellant could not work more than two hours a day.

On January 4, 2017 appellant contacted OWCP and agreed to attend an FCE.

By decision dated January 6, 2017, OWCP’s hearing representative found that OWCP met 

its burden of proof to terminate appellant’s wage-loss compensation and medical benefits. He 

noted that Dr. Maultsby represented the weight of the medical evidence as he provided an accurate 

history, examination findings, and medical rationale for his opinion that appellant’s disability and 

residuals due to the February 14, 1996 work injury had ceased.
5

On February 7, 2017 OWCP made a preliminary determination that appellant received a 

$20,180.16 overpayment of compensation for the period August 11, 2016 through January 7, 2017 

because he was paid for wage-loss compensation after the ordered termination of his benefits. It

found that he was at fault in creating the overpayment as he accepted payments that he knew or 

reasonably should have known were incorrect. OWCP requested that appellant complete an 

overpayment recovery questionnaire and provided him 30 days to respond if he disagreed with the 

overpayment determination.

On February 8, 2017 OWCP made a preliminary determination that appellant received a 

$6,201.72 overpayment of compensation for the period June 26 through August 10, 2016, or 46 

days. Appellant received $3,774.96 every 28 days for a total of $6,201.72 for the period at issue 

because he was paid disability compensation after the formal suspension of his benefits. OWCP 

found that he was at fault in creating this overpayment as he accepted payments that he knew or 

reasonably should have known were incorrect. It requested that appellant complete an 

overpayment recovery questionnaire and provided him 30 days to respond if he disagreed with the 

overpayment determination. 

Appellant did not respond to either of the preliminary overpayment determinations.

By decision dated March 15, 2017, OWCP finalized the preliminary determination of an 

overpayment of compensation in the amount of $20,180.16 for the period August 11, 2016 through 

January 7, 2017 for which appellant was at fault.

By decision dated March 16, 2017, OWCP finalized the preliminary determination of an 

overpayment of compensation in the amount of $6,201.72 for the period June 26 through 

August 10, 2016.

LEGAL PRECEDENT -- ISSUE 1

Section 8123(a) of FECA and section 10.320 of OWCP’s regulations authorize OWCP to 

require an employee, who claims disability as a result of federal employment to undergo a physical 

examination as it deems necessary.3 The determination of the need for an examination, the type 

of examination, the choice of locale and the choice of medical examiners are matters within the 

province and discretion of OWCP.4 FECA further provides in section 8123(d) that if the employee 

refused to or obstructs an examination his or her right to compensation is suspended until the 

refusal or obstruction stops and that the period of refusal or obstruction is deducted from the period 

for which compensation is payable.5 The Board has held that a time must be set for a medical 

examination and the employee must fail to appear for the appointment, without an acceptable 

excuse or reason, before OWCP can suspend or deny the employee’s entitlement to compensation 

because the employee failed to submit to or obstructed a medical examination.6 OWCP’s 

 

3 5 U.S.C. § 8123(a); 20 C.F.R. § 10.320.

4 S.B., 58 ECAB 267 (2007).

5 5 U.S.C. § 8123(d).

6 Margaret M. Gilmore, 47 ECAB 718 (1996).
6

procedures provide that if the claimant does not report for a scheduled appointment, he or she 

should be asked in writing to provide an explanation within 14 days.7 If good cause is not 

established, entitlement to compensation should be suspended in accordance with 5 U.S.C. 

§ 8123(d) until the claimant reports for examination.8

ANALYSIS -- ISSUE 1

OWCP scheduled an FCE on May 25, 2016. In a May 18, 2016 letter, the FCE provider 

notified OWCP that she had cancelled appellant’s May 25, 2016 FCE appointment. She noted that 

during her third conversation with appellant he threatened to sue if he was touched. In a telephone 

memorandum dated May 24, 2016, the FCE provider informed OWCP that appellant had called 

and suggested in a threatening tone that he would sue the practice if he was touched. She advised

that appellant called three or four times and forwarded pages of documentation. As a result the 

FCE provider cancelled the appointment. On May 31, 2016 OWCP advised appellant of its 

intention to suspend compensation benefits pursuant to 5 U.S.C. § 8123(d) and afforded him 14 

days to provide a “good cause” explanation for his obstruction of the FCE. Appellant responded 

on June 8, 2016 and disputed that he had obstructed the May 25, 2016 appointment. He asserted 

that the provider cancelled the appointment and that he never refused to attend the scheduled 

evaluation. On June 23, 2016 OWCP suspended appellant’s benefits under 5 U.S.C. § 8123(d) 

effective June 26, 2016. The Board finds that OWCP properly suspended appellant’s entitlement 

to compensation for obstruction of the May 25, 2016 FCE. 

The determination of the need for an examination, the type of examination, the choice of 

locale, and the choice of medical examiners are matters within the province and discretion of 

OWCP. The only limitation on OWCP’s authority, with regard to instructing a claimant to undergo 

a medical examination, is that of reasonableness.9 The Board has interpreted the plain meaning of 

section 8123(d) to provide that compensation is not payable while a refusal or obstruction of an 

examination continues.10

OWCP directed appellant to attend an FCE on May 25, 2016. Appellant was advised of 

the need for the examination and the time and place for the scheduled appointment. He admitted 

that he called the FCE provider to offer his MRI scans at two different numbers twice for a total 

of four calls. He further admitted that he informed the provider that given his medical conditions 

he could be paralyzed if improperly manipulated, and that if this happened he would sue everyone 

involved. In Linda L. Wagner,

11 the Board found that the physicians selected by OWCP declined 

to examine appellant because of the intimidating nature of letters submitted by her representative 

 

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.13(d) (June 2015).

8

Id.; see Scott R. Walsh, 56 ECAB 353 (2005); Raymond C. Dickinson, 48 ECAB 646 (1997).

9 Supra note 4; B.W., Docket No. 17-0847 (issued July 18, 2017); Lynn C. Huber, 54 ECAB 281 (2002).

10 B.W., id.; T.W., Docket No. 16-1524 (issued February 6, 2017).

11 Linda L. Wagner, Docket No. 03-0354 (issued June 5, 2003) (finding that threatening letters to physicians which 

resulted in the physician’s cancelling the scheduled examination constituted obstruction on the part of the claimant).
7

and that this constituted obstruction of the FCE. As in Wagner, appellant did not refuse to attend 

the scheduled appointment, but instead through his actions made the medical examiner so 

uncomfortable that she was unwilling to treat appellant. Thus the Board finds that OWCP properly 

suspended entitlement to compensation in accordance with 5 U.S.C. § 8123(d) effective June 26, 

2016 until January 4, 2017 when appellant contacted OWCP and agreed to attend a FCE. When 

appellant actually reports for examination, payment retroactive to the date on which he agreed to 

attend the examination may be made.12

LEGAL PRECEDENT -- ISSUE 2

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

modification or termination of an employee’s benefits.

13

 It may not terminate compensation 

without establishing that the disability has ceased or that it is no longer related to the 

employment.14 OWCP’s burden of proof in terminating compensation includes the necessity of 

furnishing rationalized medical opinion evidence based on a proper factual and medical 

background.15 

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability.16 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition which require 

further medical treatment.17

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides 

that, if there is disagreement between the physician making the examination for the United States 

and the physician of the employee, the Secretary shall appoint a third physician who shall make 

an examination and resolve the conflict of medical evidence.18 This is called a referee examination 

and OWCP will select a physician who is qualified in the appropriate specialty and who has no 

prior connection with the case.19

ANALYSIS -- ISSUE 2

The Board finds that OWCP did not meet its burden of proof to justify termination of 

appellant’s wage-loss compensation and medical benefits because a conflict in medical evidence 

 

12 B.W., supra note 9.

13 P.C., Docket No. 16-1714 (issued October 18, 2017); Mohamed Yunis, 42 ECAB 325, 334 (1991).

14 Id.

15 P.C., supra note 13; Jaja K. Asaramo, 55 ECAB 200 (2004).

16 See T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 361, 364 (1990).

17 See I.J., 59 ECAB 408 (2008); Furman G. Peake, id.

18 5 U.S.C. § 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

19 R.C., 58 ECAB 238 (2006).
8

had been created between the opinions of appellant’s treating physicians, Drs. Mills and Kang, and 

OWCP’s second opinion physician, Dr. Maultsby, regarding whether appellant remained disabled 

due to his accepted employment injuries and requires further medical treatment.

OWCP accepted appellant’s February 14, 1996 employment injury for cervical sprain, 

lumbosacral sprain with contusions, left knee contusions, aggravation of torn left meniscus, and of 

aggravation of degenerative disc disease of the lumbar and cervical spines.

In a March 4, 2016 report, Dr. Kang noted appellant’s history of injury on February 14, 

1996 and diagnosed lumbar degenerative disc disease, lumbosacral ligament sprain, neck sprain, 

medial meniscus tear, cervical and lumbar spine degenerative disc disease, and osteoarthritis of 

the knees. He opined that appellant was totally disabled and had chronic daily pain. Several 

months later, Dr. Kang completed a work capacity evaluation form (OWCP-5) on July 12, 2016 

and indicated that appellant could perform all activities less than two hours a day, except operating 

a motor vehicle which he could perform for two to three hours a day. He provided appellant with 

a seven-pound weight limit for pushing, pulling, and lifting. On July 11, 2016 Dr. Mills diagnosed 

chronic cervical and lumbar pain with lumbar spinal stenosis and cervical and lumbar 

radiculopathy as well as a torn left knee meniscus. He reviewed appellant’s FCE and found that 

appellant could perform sedentary work, but not his date-of-injury position due to the requirements 

of climbing ladders, and crawling through hospitals and elevator shafts. 

Dr. Maultsby completed a second opinion report on May 25, 2016 and found a positive 

Waddell’s test, cogwheel motion in his neck and back, and 10 pounds of pressure on the Jamar 

device with very poor effort. He found that appellant’s findings documented symptom 

magnification and lack of effort. Dr. Maultsby found that appellant could perform light-tomoderate work eight hours a day and indicated that appellant could return to his date-of-injury 

position eight hours a day without restrictions and no further medical treatment.

Appellant’s physicians and OWCP’s second opinion physician disagreed regarding his 

ability to return to his full-duty position and his need for ongoing medical treatment. The Board 

finds that OWCP should have resolved the conflict of medical opinion evidence before terminating

compensation.20 As OWCP failed to resolve the conflicting medical opinion evidence, the Board 

finds that it did not meet its burden of proof to terminate wage-loss compensation and medical 

benefits.21

 

20 P.C., supra note 13.

21 Due to the resolution of this issue, the issue of continuing disability and overpayment of compensation in the 

amount of $20,180.16 during the period August 11, 2016 through January 7, 2017 resulting from the August 11, 2016 

termination are moot and will not be addressed in this appeal.
9

LEGAL PRECEDENT -- ISSUE 5

Under FECA at 5 U.S.C. § 8123(d), if an employee refuses to submit to or obstructs an 

examination, his right to compensation under this subchapter is suspended until the refusal or 

obstruction stops. OWCP regulations state: 

“Should the employee subsequently agree to attend the examination or cease 

obstruction (as expressed in writing or by telephone documented on Form CA-110), 

OWCP will restore any periodic benefits to which the employee is entitled when 

the employee actually reports for and cooperates with the examination. Payment is 

retroactive to the date the employee agreed to attend or cease obstruction of the 

examination.22 (Emphasis added.) 

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability or death of an employee resulting from personal injury sustained while in the 

performance of duty.23 When an overpayment has been made to an individual because of error of 

fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by 

decreasing later payments to which an individual is entitled.24

ANALYSIS -- ISSUE 5

OWCP found that an overpayment of compensation in the amount of $6,201.72 occurred 

from June 26 through August 10, 2016 because appellant received wage-loss compensation after 

his compensation had been suspended under 5 U.S.C. § 8123(d). As previously noted, the Board 

finds that appellant had obstructed a medical examination and that OWCP properly suspended his 

compensation benefits beginning June 26, 2016. Appellant agreed to submit to an OWCP directed 

FCE on January 4, 2017. When appellant attends the FCE, payment is retroactive to the date that 

he agreed to attend and cease obstruction of the examination or January 4, 2017.25

The Board finds that appellant received an overpayment of compensation in the amount of 

$6,201.72 during the period June 26 through August 10, 2016 as he was not entitled to receive 

compensation after his wage-loss compensation was suspended.

 

22 20 C.F.R. § 10.323. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating 

Medial Evidence, Chapter 2.810.13(e) (June 2014).

23 5 U.S.C. § 8102(a).

24 5 U.S.C. § 8129(a); N.L., Docket No. 08-0076 (issued April 10, 2008).

25 C.T., Docket No. 14-1175 (issued October 27, 2014); D.J., Docket No. 13-0064 (issued August 5, 2013) (the 

employee will forfeit compensation otherwise paid or payable under FECA for the period of obstruction and any 

compensation already paid for that period will be declared an overpayment and will be subject to recovery pursuant 

to 5 U.S.C. § 8129).
10

LEGAL PRECEDENT -- ISSUE 6

Section 8129(a) of FECA26 provides that, when an overpayment of compensation has been 

made because of an error or fact of law, adjustment shall be made by decreasing later payments to 

which an individual is entitled. The only exception to this requirement is when 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.27 

In determining whether an individual is with fault, section 10.320(b) of OWCP’s 

regulations28 provides that an individual is with fault in the creation of an overpayment who made 

an incorrect statement as to a material fact which the individual knew or should have known to be 

incorrect; or failed to furnish information which the individual knew or should have known to be 

material; or with respect to the overpaid individual only, accepted a payment which the individual 

knew or should have been expected to know was incorrect.

The Board has held that an employee who receives payments from OWCP in the form of 

a direct deposit may not be at fault the first time incorrect funds are deposited into his or her 

account, as the acceptance of the resulting overpayment lacks the requisite knowledge.29 The 

Board has also held in cases involving a series of incorrect payments, where the requisite 

knowledge is established by a letter or telephone call from OWCP, or simply with the passage of 

time and a greater opportunity for discovery, the claimant will be at fault for accepting the 

payments subsequently deposited.30 

ANALYSIS -- ISSUE 6

OWCP determined that appellant was at fault in creating the overpayment because he 

accepted a payment which he knew or should reasonably have known was incorrect. In cases 

where a claimant receives compensation through direct deposit, OWCP must establish that at the 

time he received the direct deposit in question he knew or reasonably should have known that the 

payment was incorrect.31 An employee who receives payments from OWCP in the form of a direct 

deposit may not be at fault for the first incorrect deposit into his account since the acceptance of 

the overpayment, at the time of receipt of the direct deposit, lacks the requisite knowledge.32 One 

of the consequences of electronic funds transfer is that the claimant lacks the requisite knowledge 

 

26 5 U.S.C. § 8129(a).

27 Id. at § 8129(b); M.N., Docket No. 17-0764 (issued December 12, 2017).

28 20 C.F.R. § 10.320(b).

29 See Tammy Craven, 57 ECAB 689 (2006); Order Granting Petition for Reconsideration and Reaffirming Prior 

Decision (issued July 24, 2006).

30 Id.

31 See C.K., Docket No. 12-0746 (issued May 1, 2012).

32 See supra note 29.
11

at the time of the first incorrect payment.33 Whether or not OWCP determines that an individual 

is at fault with respect to the creation of an overpayment depends on the circumstances surrounding 

the overpayment.34 It is not appropriate to make a finding that a claimant has accepted an 

overpayment via direct deposit until such time as a reasonable person would have been aware that 

this overpayment had occurred. This awareness could be established either through documentation 

such as a bank statement or notification from OWCP or where a reasonable period of time has 

passed during which a claimant could have reviewed independent confirmation of the incorrect 

payment.35

Appellant received compensation by direct deposit payments every 28 days. The evidence 

does not establish that, as of the first direct deposit of compensation after OWCP suspended his 

compensation benefits effective June 26, 2016, he knew or reasonably should have known that he 

was accepting a direct deposit to which he was not entitled. There is no documentation or other 

evidence to demonstrate that appellant had clear knowledge at the time he received a direct deposit 

from OWCP on July 23, 2016, covering the period June 26 to July 23, 2016, that the payment was 

incorrect, or that a reasonable period of time passed during which he could have reviewed bank 

statements or been informed of the incorrect payment.36 Appellant, therefore, is not at fault in the 

acceptance of the direct deposit covering the period of the overpayment from June 26 to 

July 23, 2016. 

In cases involving a series of incorrect payments, where the requisite knowledge is 

established by documentation from OWCP or simply with the passage of time and opportunity for 

discovery, the claimant will be at fault for accepting the payments subsequently deposited.37 By 

the time of the second direct deposit, on August 20, 2016 covering the period July 24 through 

August 20, 2016, appellant should have known that he was no longer entitled to FECA wage-loss 

compensation after his compensation benefits were suspended. Accordingly, the Board will affirm 

the finding of fault for the remaining period of overpayment from July 24 to August 10, 2016.

38

The Board finds that this case is not in posture for decision regarding the issue of waiver 

of recovery of the overpayment for the direct deposit on July 23, 2016. As appellant was not at 

fault for the creation of this portion of the overpayment, the Board will remand the case for OWCP 

to determine whether he is entitled to waiver of recovery for the direct deposit of July 23, 2016 

compensation covering the June 26 to July 23, 2016 period of the overpayment as well as 

 

33 Id.

34 See K.D., Docket No. 13-0451 (issued April 12, 2013).

35 See K.H., Docket No. 06-0191 (issued October 30, 2006).

36 See M.M., Docket No. 15-0265 (issued May 27, 2015).

37 See V.S., Docket No. 13-1278 (issued October 23, 2013).

38 Supra note 36.
12

determining the method of recovery of the remaining overpayment from July 23 through 

August 10, 2016.

39

 

CONCLUSION

The Board finds that OWCP properly suspended appellant’s compensation benefits for 

failing to attend a scheduled medical examination, pursuant to 5 U.S.C. § 8123(d). The Board 

further finds that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective August 11, 2016. The Board finds that appellant 

received a $6,201.72 overpayment of compensation for the period June 26 through

August 10, 2016. The case is remanded for determination of waiver of recovery of the $6,201.72 

overpayment in accordance with this decision.

ORDER

IT IS HEREBY ORDERED THAT the March 16, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and remanded in part. The January 6, 2017

decision of the Office of Workers’ Compensation Programs is reversed.40 The December 22, 2016 

decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 16, 2018

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

 

39 E.V., Docket No. 17-1328 (issued December 11, 2017).

40 Due to the Board’s reversal of the January 6, 2017 decision, the March 15, 2017 OWCP decision is moot.