United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.G., Appellant 

and 

U.S. POSTAL SERVICE, LOGISTICS & 

DISTRIBUTION CENTER, Tampa, FL, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-315 

Issued: May 21, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 21, 2013 appellant filed a timely appeal of a September 11, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP) denying wage-loss 

compensation and an August 19, 2013 decision suspending her entitlement to compensation. 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant established that she is entitled to wage-loss 

compensation for the period September 9 to October 8, 2011 causally related to a February 9, 

2009 employment-related injury; and (2) whether OWCP met its burden of proof to suspend 

appellant’s compensation benefits in accordance with 5 U.S.C. § 8123 of FECA on the grounds 

 1

 5 U.S.C. § 8101 et seq. 
2

that she refused to cooperate with a scheduled medical examination scheduled for 

December 21, 2012. 

On appeal appellant argues that OWCP erred in adjudicating her claim and requested 

transfer of jurisdiction of her claim. She also argues that OWCP is prohibited from issuing any 

decisions under either claim file as the Board has sole jurisdiction 

FACTUAL HISTORY -- ISSUE 1 -- OWCP FILE NO. xxxxxx098 

On February 18, 2009 appellant, then a 34-year-old mail handler operator, filed a 

traumatic injury claim alleging that on February 9, 2009 she injured her left arm and back due to 

moving a bulk mail cart. OWCP accepted the claim for lumbar strain and left shoulder and arm 

strain.2

 

Appellant did not stop work and accepted a modified job offer on June 15, 2009. She 

returned to her regular job duties on October 15, 2009. The report of her physician, Dr. James 

Billings, noted that she was at maximum medical improvement. He returned appellant to work 

at full duty without restriction. 

In a September 8, 2011 disability statement, Dr. Sara C. Vizcay, a treating physician, 

indicated that appellant was disabled for work from September 8 to October 6, 2011. She 

diagnosed cervical strain/sprain and lumbar strain/sprain with left shoulder and right knee 

complaints. 

In a September 8, 2011 duty status form report, Dr. Vizcay stated that appellant was 

unable to work for the next four weeks. She listed an injury date of February 9, 2009 and 

diagnoses of cervical, lumbar and left shoulder sprains/strains. 

On September 8, 2011 Dr. Vizcay performed a physical examination and provided 

findings from her examination. Under history she noted that in 2011 appellant “injured low back 

and right lower extremity with aggravation of the 2009 injured (sic).” Diagnoses included 

cervical, lumbar and right shoulder strains. Dr. Vizcay recommended physical therapy and that 

appellant avoid pushing, climbing, crawling, pulling and extended sitting, walking or standing 

without frequent breaks. 

On October 12, 2011 appellant filed claims for wage-loss compensation for the period 

September 8 to October 8, 2011. 

By letter dated October 18, 2011, OWCP informed appellant that the evidence of record 

was insufficient to support her claim. Appellant was advised as to the medical and factual 

evidence required to support her claim and given 30 days to provide this information. 

In a November 8, 2011 report, Dr. Samy F. Bishai, a treating orthopedic surgeon, noted 

the date of injury as February 9, 2011 and indicated that appellant was disabled for working from 

 2

 OWCP assigned claim number xxxxxx098. 
3

September 9 to October 8, 2011. Further, he opined that appellant’s disability was due to an 

aggravation of a preexisting condition and not to a spontaneous worsening of her condition. 

By decision dated November 29, 2011, OWCP denied appellant’s wage-loss 

compensation claim for the period September 9 to October 8, 2011. It noted that her treating 

physician advised that her disability was not spontaneous, but was due to an aggravation of her 

condition. OWCP noted that appellant’s physician did not identify the cause of the aggravation. 

Subsequent to OWCP’s decision, it received an additional November 8, 2011 report from 

Dr. Bishai. Diagnoses included chronic lumbosacral strain, lumbar disc syndrome, bulging 

lumbosacral spinal discs, upper back muscle strain, right leg radiculopathy, left shoulder 

tendinitis and bursitis and left shoulder internal derangement. Dr. Bishai reiterated his opinion 

that appellant’s disability was due to an additional aggravation of the February 9, 2011 injury. 

He noted that appellant sustained an aggravation of the February 9, 2011 injury and second work 

injury on June 9, 2011. 

In a January 31, 2012 report, Dr. Bishai provided a history of appellant’s injuries on 

February 9 and June 9, 2011. He stated that she sustained an aggravation of her accepted 

condition on June 9, 2011. Dr. Bishai opined that appellant was entitled to receipt of wage-loss 

compensation for the period September 9 to October 8, 2011. 

On November 27, 2012 appellant requested reconsideration. 

By decision dated February 15, 2013, OWCP denied modification. 

On July 21, 2013 appellant requested reconsideration. She argued that OWCP’s findings 

were clearly erroneous and that she was entitled to wage-loss compensation for the period 

claimed. Appellant also contended that OWCP failed to comply with its procedures in managing 

her claims. 

By decision dated September 11, 2013, OWCP denied modification.3

 It found that 

appellant had been paid wage-loss compensation for the period in question under File No. 

xxxxxx258, i.e., July 29, 2011 to March 9, 2013, and that any disability was due to injuries 

sustained under that claim. OWCP further found that, even if appellant established disability 

under the current claim, she would not be entitled to wage-loss compensation as “FECA does not 

allow concurrent payment of total disability compensation” where disability stems from multiple 

files and injuries. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his claim by the weight of the evidence.5 For each period of disability 

 3

 On September 17, 2013 OWCP combined File Nos. xxxxxx098, xxxxxx258 and xxxxxx723. File No. 

xxxxxx098 was listed as the master file number. Under File No. xxxxxx723 OWCP accepted that appellant 

sustained neck, left shoulder and left upper arm strains on March 31, 2009 due to pulling a heavy tray of mail off a 

pallet of high heavy letter trays. 

4

 5 U.S.C. §§ 8101-8193 
4

claimed, the employee has the burden of establishing that he was disabled for work as a result of 

the accepted employment injury.6 Whether a particular injury causes an employee to become 

disabled for work, and the duration of that disability, are medical issues that must be proved by a 

preponderance of probative and reliable medical opinion evidence.7

 

Under FECA the term “disability” means incapacity, because of an employment injury, to 

earn the wages that the employee was receiving at the time of injury.8

 Disability is, thus, not 

synonymous with physical impairment which may or may not result in an incapacity to earn 

wages.9

 An employee who has a physical impairment causally related to his federal 

employment, but who nonetheless has the capacity to earn the wages he was receiving at the time 

of injury, has no disability and is not entitled to compensation for loss of wage-earning 

capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an 

employment injury are such that, from a medical standpoint, they prevent the employee from 

continuing in his employment, he is entitled to compensation for any loss of wages. 

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so, would essentially allow an employee to self-certify their disability and 

entitlement to compensation.11

ANALYSIS -- ISSUE 1 

Appellant claimed that she was totally disabled for work during the period September 9 

to October 8, 2011 and thereby entitled to wage-loss compensation. OWCP denied the claim by 

decisions dated November 29, 2011, February 15 and September 11, 2013 based on a lack of 

medical evidence establishing that her disability was due to her accepted February 9, 2009 

employment injury. OWCP, in its September 11, 2013 decision, also found that appellant had 

received wage-loss compensation for this period under File No. xxxxxx258. To the extent that 

she is claiming compensation for a period in which she was already paid compensation, the 

Board finds that appellant is not entitled to be paid twice for the same period of wage loss.12 For 

any claimed time in this period for which appellant has not already received compensation, she 

 5 See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. 

Whelan, 20 ECAB 55 (1968). 

6 See Amelia S. Jefferson, supra note 5; see also David H. Goss, 32 ECAB 24 (1980). 

7 See Edward H. Horton, 41 ECAB 301 (1989). 

8 S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 

(2003); 20 C.F.R. § 10.5(f). 

9 Roberta L. Kaaumoana, 54 ECAB 150 (2002). 

10 Merle J. Marceau, 53 ECAB 197 (2001). 

11 See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001). 

12 See N.F., Docket No. 10-1399 (issued February 9, 2011); J.M., Docket No. 08-2244 (issued June 10, 2009); 

E.B., Docket No. 06-1585 (issued February 22, 2007); Amos Mack, 39 ECAB 1364 (1988). 
5

must provide reasoned medical evidence supporting that her disability is causally related to her 

February 9, 2009 employment injury. 

In support of her claim, appellant submitted reports from Drs. Bishai and Vizcay. In 

various reports, Dr. Bishai attributed appellant’s disability for the period September 9 to 

October 8, 2011 to an aggravation of her February 9, 2009 employment injury. He noted that 

this was not a spontaneous worsening of her condition, but was due to an aggravation on 

June 9, 2011. Similarly, Dr. Vizcay attributed appellant’s disability to an aggravation of 2009 

injury. Neither physician provided any medical rationale explaining how or why the February 9, 

2009 employment injury was the cause of appellant’s disability for work during the period in 

question. Without such rationale explaining why appellant’s inability to work is attributable to 

the accepted February 9, 2009 work injury, the reports of Drs. Bishai and Vizcay are insufficient 

to meet appellant’s burden of proof to establish disability for the period claimed.13 Furthermore, 

both physicians attributed appellant’s disability to an aggravation of the February 9, 2009 

employment injury at work on June 9, 2011, a period not the subject of the current appeal. 

On appeal appellant contends that OWCP erred in the manner in which it combined her 

three claims (File Nos. xxxxxx098, xxxxxx723 and xxxxxx258) and that it erred in not making 

File No. xxxxxx098, as the oldest claim, the master file number. She also contends that OWCP 

erred in failing to properly update the injury codes when it combined her claims. Next appellant 

argues that all decisions should be set aside as OWCP improperly combined her claims. Under 

OWCP procedures, cases should be combined when claims are reported for a similar condition 

or part of the body, two or more separate injuries occurred on the same date or correct 

adjudication of the issues depends on frequent cross-reference between files.14 Thus, OWCP 

followed the procedure manual when it combined File Nos. xxxxxx098, xxxxxx723 and 

xxxxxx258. As to updating the injury codes, appellant has submitted no evidence showing that 

OWCP erred in the injury codes it assigned to her claims. 

Appellant also argues that OWCP erred in denying medical authorization for an 

orthopedic mattress and physical therapy. The Board’s jurisdiction is limited to reviewing final 

adverse decisions of OWCP issued under FECA within 180 days of an appeal to the Board.15 

OWCP has not issued a final decision regarding denying authorization for physical therapy or an 

orthopedic mattress within 180 days of appellant’s appeal to the Board. Thus, these issues are 

not before the Board at this time. 

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. 

 13 Deborah L. Beatty, 54 ECAB 340 (2003). 

14 See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 

2.400.8(c) (February 2000). 

15 20 C.F.R. §§ 501.2(c) and 501.3. 
6

FACTUAL HISTORY -- ISSUE 2 -- OWCP FILE NO. xxxxxx258 

On June 9, 2011 appellant filed a traumatic injury claim alleging that on that date she 

injured her back, right knee and ankle while pushing an automated postal cart. She stopped work 

that day. OWCP accepted the claim for cervical and lumbosacral sprains.16

By letter dated November 13, 2012, appellant was informed that an appointment for a 

second opinion evaluation had been scheduled with Dr. William Dinenberg, a Board-certified 

orthopedic surgeon, for November 30, 2012 at 10:30 a.m. On November 30, 2012 OWCP was 

informed that appellant did not show up for the appointment with Dr. Dinenberg. 

On December 5, 2012 OWCP informed appellant that an appointment for a second 

opinion evaluation had been rescheduled with Dr. Dinenberg for December 21, 2012 at 11:30 

a.m. 

On December 7, 2012 OWCP placed appellant on the periodic rolls for temporary total 

disability effective December 16, 2012. It informed her that payments had been issued for the 

periods July 29, 2011 to May 30, 2012 and May 31 to December 15, 2012. 

On December 21, 2012 OWCP was informed that appellant did not show up for the 

appointment with Dr. Dinenberg. 

On January 16, 2013 OWCP issued a notice proposing to suspend appellant’s 

compensation on the grounds that she failed to appear for the examination scheduled with 

Dr. Dinenberg on December 21, 2012. Appellant was informed of the penalty provision of 

section 8123(d) of FECA and was given 14 days to provide in writing good cause for her failure 

to appear. She was also advised to contact OWCP immediately if she intended to report for a 

rescheduled examination with Dr. Dinenberg. 

On January 28, 2013 appellant disagreed with the proposal to suspend her benefits. She 

argued that there was no need for a second opinion evaluation as it was not mentioned in the 

October 18, 2012 decision accepting her claim. Appellant alleged that OWCP’s referral for a 

second opinion evaluation was illegal, untimely and improper. She also argued that the referral 

subjected her to harassment, retaliation and hardship. 

In a March 21, 2013 decision, OWCP finalized the proposed suspension, effective that 

day. It found that appellant did not attend the appointment scheduled for December 21, 2012. 

OWCP informed her that wage-loss compensation would be reinstated after she attended and 

fully cooperated with an examination. 

On July 21, 2013 appellant requested OWCP to vacate the March 21, 2013 decision on 

the grounds that it was clearly erroneous. 

By decision dated August 19, 2013, OWCP denied modification. 

 16 OWCP assigned claim number xxxxxx258. 
7

LEGAL PRECEDENT -- ISSUE 2 

Section 8123 of FECA authorizes OWCP to require an employee, who claims disability 

as a result of federal employment, to undergo a physical examination as it deems necessary.17 

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.18 

OWCP’s federal regulations at section 10.320 provide that a claimant must submit to 

examination by a qualified physician as often and at such time and places as OWCP considers 

reasonably necessary.19 Section 8123(d) of FECA and section 10.323 of OWCP’s regulations 

provide that, if an employee refused to submit to or obstructs a directed medical examination, his 

or her compensation is suspended until the refusal or obstruction ceases.20 However, before 

OWCP may invoke these provisions, the employee is provided a period of 14 days within which 

to present in writing his or her reasons for the refusal or obstruction.21 If good cause for the 

refusal or obstruction is not established entitlement to compensation is suspended in accordance 

with section 8123 of FECA.22

ANALYSIS -- ISSUE 2 

The Board finds that appellant refused to submit to the scheduled December 21, 2012 

second opinion examination with Dr. Dinenberg and thus OWCP properly suspended appellant’s 

compensation benefits pursuant to section 8123 of FECA. OWCP directed appellant to attend a 

second opinion evaluation with Dr. Dinenberg, a Board-certified orthopedic surgeon. It properly 

determined that it required an assessment of appellant’s employment-related condition, medical 

treatment and whether any continuing disability was causally related to her accepted employment 

injuries. 

By letter dated November 13, 2012, OWCP informed appellant that a second opinion 

evaluation was needed and scheduled the appointment for November 30, 2012. After appellant 

failed to appear, on December 5, 2012 OWCP informed appellant that a second opinion 

evaluation was needed and that her appointment with Dr. Dinenberg had been rescheduled for 

December 21, 2012. These notices were sent to her address of record. 

 17 5 U.S.C. § 8123(a). 

18 C.S., Docket No. 09-1597 (issued February 4, 2010); J.T., 59 ECAB 293 (2008). Dana D. Hudson, 57 ECAB 

298 (2006); James C. Talbert, 42 ECAB 974 (1991). 

19 20 C.F.R. § 10.320; see J.C., Docket No. 09-609 (issued January 5, 2010); J.T., supra note 18; Walter L. 

Jordan, 57 ECAB 218 (2005).

20 5 U.S.C. § 8123(d); 20 C.F.R. § 10.323. See J.C., supra note 19; Sharon Handy, 57 ECAB 446 (2006); 

Maura D. Fuller (Judson H. Fuller), 56 ECAB 383 (2005).

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

2.810.13(d) (September 2010). See J.C., supra note 19; Dana D. Hudson, supra note 18; Lynn C. Huber, 54 ECAB 

281 (2002). 

22 See J.C., supra note 19; Dana D. Hudson, supra note 18; Scott R. Walsh, 56 ECAB 353 (2005). 
8

Appellant did not attend the scheduled appointment on December 21, 2012. In a 

January 16, 2013 notice, OWCP afforded her 14 days to provide good cause in writing for her 

failure to attend the rescheduled December 21, 2012 examination. Appellant was advised of the 

penalty provision of section 8123(d) of FECA for failure to attend such an examination. 

The Board has recognized OWCP’s responsibility in developing claims.23 Section 8123 

authorizes an employee who claims disability as a result of federal employment to undergo a 

physical examination as OWCP deems necessary. 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 this authority is 

that of reasonableness.24 

The referral to an appropriate specialist in appellant’s area at OWCP’s expense was not 

unreasonable. The Board finds that appellant failed to attend the scheduled medical examination 

on December 21, 2012 and did not provide good cause for her failure within 14 days of OWCP’s 

January 16, 2013 notice of proposed suspension as she stated that she did not need an 

examination and it was illegal for OWCP to schedule one. Additionally, she stated that the 

referral subjected her to, inter alia, harassment. In this case, OWCP acted within its discretion 

by referring appellant for a second opinion examination to assess residuals and disability related 

to her employment-related conditions. 

On appeal appellant contends that OWCP erred in suspending her benefits as it failed to 

include all her accepted conditions under File Nos. xxxxxx098 and xxxxxx723. She also asserts 

that the statement of accepted facts (SOAF) created on November 9, 2012 and September 5, 

2013 is incorrect as it was only based on File No. xxxxx258 and did not include her injuries 

under File Nos. xxxxxx098 and xxxxxx723. Appellant also argues that OWCP erred in failing to 

combine all of her claims, failed to properly update the injury codes for her claims and failed to 

include all of her accepted conditions in the SOAF. Contrary to appellant’s contentions, the 

SOAF was correct as OWCP was determining the extent of any disability appellant sustained 

from her June 9, 2011 employment injury. Appellant has provided no evidence supporting that 

OWCP failed to properly update the injury codes or include all of her accepted conditions in the 

SOAF. Thus, these arguments are found to be without merit. 

Next appellant presents arguments regarding her pay rate, the alleged failure to apply 

cost-of-living adjustments, that OWCP incorrectly deducted health and insurance benefits from 

her wage-loss compensation. She requests OWCP be instructed to pay interest on her 

compensation for improperly withholding benefits. None of these issues are before the Board. 

The decisions appellant appealed concerned the suspension of her wage-loss compensation 

benefits for failing to attend a scheduled medical examination and the denial of her claim for 

wage-loss compensation for the period September 9 to October 8, 2011. As these issues are not 

 23 Scott R. Walsh, id. 

24 20 C.F.R. § 10.320; see J.T., supra note 18. 
9

in any final OWCP decision issued within 180 days of appellant’s appeal to the Board, they are 

not within the Board’s jurisdiction.25

Appellant also argues that OWCP did not have jurisdiction to schedule a second opinion 

evaluation for her to attend on March 24, 2014 as the Board and OWCP cannot have 

simultaneous jurisdiction. OWCP cannot issue decisions on issues that are before the Board.26 

However, the issue before the Board is whether OWCP properly suspended appellant’s 

entitlement to compensation benefits for failing to undergo the December 21, 2012 scheduled 

medical examination. As was noted above, the August 19, 2013 OWCP decision encompassed 

this issue from which appellant timely filed an appeal within 180 days of its issuance. This is the 

only suspension decision properly before the Board. Thus, the Board has no jurisdiction over 

any subsequently-acquired examinations on this appeal.27

Appellant requests that the Board to transfer jurisdiction of her case. As discussed 

previously, the Board’s jurisdiction is limited to final decisions of OWCP issued with 180 days 

of an appeal to the Board. Thus, the Board does not have the jurisdiction to instruct OWCP to 

transfer her claim. 

CONCLUSION 

The Board finds that appellant failed to establish entitlement to wage-loss compensation 

for the period September 9 to October 8, 2011 causally related to her accepted February 9, 2011 

employment injury. The Board further finds that OWCP met its burden of proof to suspend 

appellant’s compensation benefits in accordance with 5 U.S.C. § 8123 of FECA on the grounds 

that she refused to cooperate with a scheduled medical examination on December 21, 2012. 

 25 See 20 C.F.R. § 501.3(e). 

26 See Douglas E. Billings, 41 ECAB 880 (1990); see also 20 C.F.R. § 501.2(c)(3). 

27 See 20 C.F.R. § 501.2(c). Appellant has 180 days from the issuance of any final adverse decisions issued by 

OWCP. 
10

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated September 11 and August 19, 2013 are affirmed. 

Issued: May 21, 2014 

Washington, DC 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board