United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.G., Appellant 

and 

U.S. POSTAL SERVICE, LOGISTICS & 

DISTRIBUTION CENTER, Tampa, FL, 

Employer 

__________________________________________ 

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Docket No. 15-0303 

Issued: January 14, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 3, 2014 appellant filed a timely appeal of an October 17, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). 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.2

 

ISSUE 

The issue is whether OWCP met its burden of proof to suspend appellant’s compensation 

benefits in accordance with 5 U.S.C. § 8123(d) of FECA as she refused to attend a March 24, 

2014 medical examination. 

 1

 5 U.S.C. § 8101 et seq. 

2

 On December 19, 2014 appellant filed a motion to vacate prior Board decisions dated May 21 and December 1, 

2014, as well as OWCP decisions issued after March 31, 2009. By order dated November 25, 2015, the Board 

denied her motion. Order Denying Appellant’s Motion to Vacate, Docket No. 15-0303 (issued November 25, 2015). 
2

On appeal appellant argues that OWCP erred in suspending her compensation benefits 

based on her failure to attend the scheduled appointment. She also argues that OWCP lacked 

jurisdiction to refer her for a second opinion while appeals were pending before the Board 

regarding OWCP File Nos. xxxxxx098 and xxxxxx258. 

FACTUAL HISTORY 

This case has previously been before the Board. On June 9, 2011 appellant filed a 

traumatic injury claim (Form CA-1) alleging that on that date she injured her back, right knee, 

and ankle while pushing an automated postal cart.3

 OWCP accepted the claim for cervical and 

lumbosacral sprains. On March 21, 2013 it suspended appellant’s compensation benefits for 

failure to attend an appointment with Dr. William Dinenberg, a Board-certified orthopedic 

surgeon under File No. xxxxxx258.4

 Appellant requested reconsideration and by decision dated 

August 19, 2013 OWCP denied modification of its March 21, 2013 decision. On November 21, 

2013 she filed an appeal of that decision to the Board. In its May 21, 2014 decision, the Board 

affirmed OWCP’s August 19, 2013 OWCP decision denying modification of the March 21, 2013 

decision suspending appellant’s compensation. The facts and circumstances surrounding the 

prior appeal are incorporated by reference. 

The record indicates that appellant received wage-loss benefits on the short-term rolls as 

of July 29, 2011 and on the periodic rolls as of October 20, 2013. 

While the above-referenced appeal was pending before the Board, by letter dated 

February 21, 2014, OWCP again informed appellant that a second opinion evaluation was 

needed for an assessment of her work-related condition. 

On February 27, 2014 appellant was informed that an appointment for a second opinion 

evaluation had been scheduled with Dr. Fanourious I. Ferderigos, a Board-certified orthopedic 

surgeon, for March 24, 2014 at 2:00 p.m. She was informed that if she failed to attend the 

scheduled appointment she must advise OWCP within seven days of the reason. Appellant was 

further advised that if she refused or obstructed the examination her right to compensation would 

be suspended while the refusal or obstruction continued. 

On March 24, 2014 OWCP was informed that appellant did not attend the appointment 

with Dr. Ferderigos. 

 3

 This claim was assigned OWCP File No. xxxxxx258. On September 17, 2013 OWCP combined OWCP File 

Nos. xxxxxx098, xxxxxx258, and xxxxxx723. OWCP File No. xxxxxx098 was listed as the master file number. 

Under OWCP File No. xxxxxx098, OWCP accepted that appellant sustained lumbar strain and left shoulder and arm 

strain on February 9, 2009 while moving a bulk mail cart. Under OWCP File number xxxxxx723 OWCP accepted 

that appellant sustained neck, left shoulder, and left upper arm strains on March 31, 2009 while pulling a heavy tray 

of mail off a pallet of high heavy letter trays. 

4

 Docket 14-315 (issued May 21, 2014) petition for recon., denied, Docket No. 14-315 (issued 

December 1, 2014). In the May 21, 2014 decision, the Board also affirmed the denial of appellant’s claim for wageloss compensation for the period September 9 to October 8, 2011 as she had already been paid wage-loss 

compensation for the period July 29, 2011 to March 9, 2013 under File No. xxxxxx258, i.e. 
3

On March 27, 2014 OWCP issued a notice proposing to suspend appellant’s 

compensation because she had failed to appear for the examination scheduled with 

Dr. Ferderigos on March 24, 2014. 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. Ferderigos. 

In a letter dated April 7, 2014, appellant disagreed with the proposal to suspend her 

benefits. She argued that there was no issue requiring referral for a second opinion evaluation. 

Appellant asserted that OWCP lacked the jurisdiction to send her for a second opinion evaluation 

as she currently had an appeal before the Board and the Board and OWCP could not have 

simultaneous jurisdiction. 

In an April 18, 2014 decision, OWCP finalized the proposed suspension, effective that 

day. It found that appellant had failed to attend the appointment scheduled for March 24, 2014 

and that she had failed to provide good cause for her failure to appear. OWCP informed her that 

wage-loss compensation would be reinstated after she attended and fully cooperated with an 

examination. 

On April 21, 2014 appellant requested a review of the written record by an OWCP 

hearing representative. 

By decision dated October 17, 2014, an OWCP hearing representative affirmed the 

April 18, 2014 OWCP decision suspending appellant’s benefits for failure to attend a scheduled 

second opinion appointment on March 24, 2014. 

LEGAL PRECEDENT 

Section 8123(a) 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.5 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.6

 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.7

 Section 8123(d) of FECA and section 10.323 of 

OWCP’s regulations provide that, if an employee refuses to submit to or obstructs a directed 

 5

 5 U.S.C. § 8123(a). 

6 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). 

7

 20 C.F.R. § 10.320; see J.C., Docket No. 09-609 (issued January 5, 2010); J.T., id.; Walter L. Jordan, 57 ECAB 

218 (2005).
4

medical examination, his or her compensation is suspended until the refusal or obstruction 

ceases.8 However, before OWCP may invoke these provisions, the employee is provided a 

period of 14 days within which to present in writing his reasons for the refusal or obstruction.9 If 

good cause for the refusal or obstruction is not established entitlement to compensation is 

suspended in accordance with section 8123 of FECA.10

ANALYSIS 

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

pursuant to section 8123(a) of FECA. 

By letter dated February 21, 2014, OWCP notified appellant that a second opinion 

evaluation was needed. It properly informed her in its February 21, 2014 letter that her right to 

compensation would be suspended if she refused to undergo the examination. On February 27, 

2014 OWCP referred appellant for the second opinion evaluation with Dr. Ferderigos, a Boardcertified orthopedic surgeon, to assess her employment-related medical condition, treatment, and 

continuing disability related to her accepted employment injuries. The appointment was 

scheduled for March 24, 2014. The notice was sent to appellant’s address of record. 

Appellant did not attend the scheduled appointment on March 24, 2014. In a March 27, 

2014 notice, OWCP afforded 14 days to provide good cause in writing for her failure to attend 

the scheduled March 24, 2014 examination. Appellant was again advised of the penalty 

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

The Board finds that OWCP was within its authority to schedule the second opinion 

examination, that appellant failed to attend the scheduled medical examination on March 24, 

2014, and that she failed to provide good cause for her failure within 14 days of OWCP’s 

March 27, 2014 notice of proposed suspension. 

Appellant argues that OWCP erred in referring her to a second opinion evaluation 

without first obtaining evidence of her current medical condition from her treating physician. 

She also argues that OWCP did not have jurisdiction to schedule a second opinion evaluation as 

the Board and OWCP could not have simultaneous jurisdiction. As noted above, OWCP has 

discretion to determine when a second opinion evaluation is required. There is no requirement 

that OWCP seek an opinion from a treating physician prior to a second opinion examination. As 

to appellant’s argument that OWCP lacked jurisdiction to refer her for a second opinion 

evaluation while an aspect of her claim was on appeal to the Board, this argument is without 

merit. The issue on appeal to the Board under OWCP File No. xxxxxx258 in the prior appeal 

 8

 5 U.S.C. § 8123(d); 20 C.F.R. § 10.323. See J.C., id; Sharon Handy, 57 ECAB 446 (2006); Maura D. Fuller 

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

9

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

2.810.13(d) (September 2010). See J.C., supra note 7; Dana D. Hudson, supra note 6; Lynn C. Huber, 54 ECAB 

281 (2002). 

10 See J.C., supra note 7; Dana D. Hudson, supra note 6; Scott R. Walsh, 56 ECAB 353 (2005). 
5

concerned her failure to attend an appointment with Dr. Dinenberg on December 21, 2012. By 

February 21, 2014, the date appellant had been referred for the examination with Dr. Ferderigos, 

appellant had been returned to receiving wage-loss compensation benefits. OWCP acted within 

its discretion when it referred her for another second opinion evaluation to determine her then 

medical status. In the prior appeal, the Board only had jurisdiction over whether OWCP 

properly suspended appellant’s compensation benefits for refusing to attend the appointment 

with Dr. Dinenberg on December 21, 2012. 

Appellant further asserts that the statement of accepted facts (SOAF) dated February 21, 

2014 was not provided to her prior to the scheduled March 24, 2014 appointment and that the 

SOAF was missing accepted and worsening conditions contained in OWCP File Nos. xxxxx098 

and xxxxxx723. There is no requirement that OWCP provide appellant with a SOAF before a 

second opinion examination has been scheduled.11 A claimant is at any time afforded the 

opportunity to obtain a copy of his or her case record. Appellant provided no evidence to 

substantiate her claim that the SOAF was inaccurate. Thus, the Board finds these arguments also 

to be without merit. 

As noted above, OWCP had the discretion to determine that a second opinion evaluation 

was required. Contrary to appellant’s contention, while a case is on appeal to the Board, OWCP 

is only precluded from rendering a decision over the same issue that is on appeal to the Board.12 

The Board could not have had jurisdiction over a need for a new second opinion evaluation on 

March 24, 2014 as that issue had not arisen prior to appellant’s filing of the previous appeal on 

November 21, 2013.13 

CONCLUSION 

The Board finds that OWCP met its burden of proof to suspend appellant’s compensation 

benefits in accordance with 5 U.S.C. § 8123(d) of FECA as she refused to attend a scheduled 

medical examination. 

 11 Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.3(c)(1) (July 2011) provides that the SOAF should be provided to the second opinion physician. However, 

3.500.3(d) discusses the information to be provided to appellant at the time of the second opinion examination and 

does not state that the SOAF should be provided. 

12 See 20 C.F.R. § 501.2(c)(3). 

13 Douglas E. Billings, 41 ECAB 880 (1990) (the Board and OWCP may not exercise concurrent jurisdiction over 

the same issue). 
6

ORDER 

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

Compensation Programs dated October 17, 2014 is affirmed. 

Issued: January 14, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board