United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.Y., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Pittsburgh, PA, Employer 

__________________________________________ 

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Docket No. 15-1313 

Issued: November 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 26, 2015 appellant filed a timely appeal from a February 10, 2015 merit and a 

May 11, 2015 nonmerit 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. 

ISSUES 

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

benefits effective February 9, 2015 due to his failure to attend a scheduled medical examination; 

and (2) whether OWCP properly denied appellant’s request for an oral hearing as untimely. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 31, 2012 appellant, then a 51-year-old housekeeping aid, was injured when 

he lifted a five-gallon bucket of batteries. OWCP accepted the claim for right inguinal hernia 

without obstruction or gangrene. On May 2, 2013 appellant underwent a right inguinal 

herniorrhaphy and on December 27, 2013 he underwent a right inguinal exploration with 

ilioinguinal nerve transection. He stopped work on the date of injury. Appellant worked light 

duty intermittently beginning on September 10, 2013. OWCP accepted recurrences of disability 

on December 27, 2013 and March 10, 2014. Appellant received appropriate medical and wageloss compensation benefits. 

In a June 20, 2014 letter, OWCP advised appellant that he had not provided a recent 

comprehensive narrative medical report from his physician which supported his continued 

disability from work. It stated that it was unclear why he remained out of work and that it would 

refer him for a second opinion examination. 

Appellant was released to return to work with restrictions effective July 1, 2014. By 

letter dated July 3, 2014, the employing establishment offered him a light-duty position 

beginning July 7, 2014. Appellant accepted the position and returned to work. However, he 

stopped work on July 10, 2014 and claimed compensation beginning July 11, 2014.2

 

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

examination was needed to address the nature of his condition, extent of disability, and 

appropriate treatment. Appellant was advised that, if he refused to attend or obstructed the 

examination, his compensation could be suspended under 5 U.S.C. § 8123(d). OWCP also noted 

that he could use a travel voucher to claim reimbursement for any necessary travel expenses 

incurred to attend the examination. 

On September 24, 2014 appellant was notified that he was scheduled for an appointment 

with Dr. David Hofius, an osteopath specializing in surgery, at 11:00 a.m. on October 13, 2014. 

In a letter dated October 14, 2014, QTC Medical Services, Inc., OWCP’s medical 

appointment scheduler, notified OWCP that appellant did not appear at his scheduled 

appointment. 

On October 27, 2014 OWCP proposed to suspend appellant’s compensation benefits 

pursuant to section 8123(d) of FECA for failure to attend the October 13, 2014 examination with 

Dr. Hofius. Appellant was advised to provide a written explanation of his reasons for not 

attending this appointment, along with corroborating evidence, within 14 days. He was advised 

that he would be rescheduled for another second opinion examination. 

A letter dated August 29, 2014 acknowledged receipt of a claim for compensation filed 

on appellant’s behalf and two benefits statements were returned to OWCP as undeliverable on 

October 30, 2014. 

 2

 OWCP accepted appellant’s claim for a recurrence commencing July 10, 2014. 
3

On November 6, 2014 appellant was again scheduled for a second opinion examination 

with Dr. Hofius at 11:30 a.m. on December 8, 2014. The letter was sent to his most recent 

address of record. 

In e-mail correspondence dated November 13, 2014, between the claims examiner and 

Judy Zubal, a human resources specialist for the employing establishment, the claims examiner 

requested that Ms. Zubal provide appellant’s updated address or that she forward the notice of 

proposed suspension to appellant. Ms. Zubal advised that appellant was residing in the 

employing establishment’s domiciliary and provided the address. The claims examiner asked if 

the address provided was appellant’s permanent address and advised that he needed to put 

something in writing to update the file. Ms. Zubal noted that she was unsure as to how long 

appellant would be staying there and noted that he moved around frequently. She advised that 

she would forward the attached letters to appellant. 

In a letter dated December 9, 2014, QTC Medical Services, Inc. notified OWCP that 

appellant did not appear for the scheduled examination on December 8, 2014. 

By decision dated February 10, 2015, OWCP finalized its proposed suspension, effective 

February 9, 2015. It noted that it had directed appellant to report for the examination scheduled 

on October 13 and December 8, 2014, but he neither attended the examinations, nor provided a 

written explanation for his failure to attend within 14 days of OWCP’s October 27, 2014 letter. 

On a February 25, 2015 appeal form, postmarked April 17, 2015, appellant 

simultaneously requested an oral telephone hearing and reconsideration. He marked through his 

oral hearing selection and initialed. However the space for telephone hearing remained checked. 

Appellant advised that he originally sent the appeal form to OWCP on February 25, 2015, but he 

did not hear back from anyone. OWCP received the appeal form on April 21, 2015. 

In an April 12, 2015 statement, appellant advised that he recently came across OWCP’s 

February 10, 2015 decision that was lost as he moved to a different residence. He acknowledged 

that he received a letter sometime in August or September about a doctor’s appointment. 

Appellant advised that he called to have the appointment rescheduled closer to Pittsburgh as he 

did not know where the doctor’s office was located and did not have money to get there. He 

alleged that he did not receive notification of a subsequent appointment. Appellant stated that he 

was willing to attend any appointment set up for him. 

By decision dated May 11, 2015, appellant’s request for an oral hearing was denied as 

untimely. OWCP exercised its discretion and further denied the request for the reason that the 

relevant issue of the case could be addressed by requesting reconsideration and submitting 

evidence not previously considered. 

On appeal appellant asserts that he tried to contact his claims examiner to schedule 

another second opinion examination. He contends that the claims examiner told him he would 

schedule another appointment. 
4

LEGAL PRECEDENT -- ISSUE 1 

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.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

 

OWCP regulations 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.5

 

Section 8123(d) of FECA and section 10.323 of OWCP 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.6

 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.7

 If good cause for the refusal or 

obstruction is not established entitlement to compensation is suspended in accordance with 

section 8123 of FECA.8

 

ANALYSIS -- ISSUE 1 

OWCP suspended appellant’s compensation effective February 9, 2015 under section 

8123(d) of FECA, as he failed to attend a scheduled medical examination. 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 regards 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 In this case, OWCP rescheduled appellant for an evaluation on December 8, 2014. 

After appellant failed to appear for the December 8, 2014 examination, OWCP finalized the 

 3

 5 U.S.C. § 8123(a). 

4 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). 

5

 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). 

6

 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). 

7

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

2.810.13(d) (September 2010). See J.C., supra note 5; Dana D. Hudson, supra note 4; Lynn C. Huber, 54 ECAB 

281 (2002). 

8 See J.C., supra note 5; Dana D. Hudson, supra note 4; Scott R. Walsh, 56 ECAB 353 (2005). 

9 See Lynn C. Huber, supra note 7. 

10 See M.B., Docket No. 10-1755 (issued March 24, 2011). 
5

suspension of wage-loss compensation based on his failure to appear at the October 13 and 

December 8, 2014 examinations. 

While OWCP provided appellant notice that he had 14 days to provide reasons for failing 

to appear at the initial October 13, 2014 examination, it did not provide him with similar notice 

following his failure to attend the examination of December 8, 2014. Rather, it finalized the 

suspension effective February 9, 2015 indicating that he did not respond to the 14-day notice 

dated October 27, 2014. OWCP procedures clearly state that if a claimant does not report for a 

scheduled appointment he or she should be asked to provide a written explanation within 14 

days.11 After missing the later scheduled December 8, 2014 examination, appellant should have 

been provided proper notice and given 14 days to submit written reasons for his failure to appear. 

As this was not done, the Board finds that OWCP erred in suspending his right to compensation 

benefits based on notice pertaining to the October 13, 2014 examination.12 

For these reasons, the Board finds that OWCP erred in suspending appellant’s right to 

compensation.13 Given the Board’s holding with respect to the first issue presented it is not 

necessary to address the second issue.

CONCLUSION 

The Board finds that OWCP did not properly suspend appellant’s compensation benefits 

effective February 9, 2015 due to his failure to attend a scheduled medical examination. 

 11 Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.810.13(d) (September 2010). 

12 See K.G., Docket No. 10-137 (issued August 6, 2010). 

13 The Board also notes that it is unclear if appellant received notice of the December 8, 2014 examination. On 

October 30, 2014 correspondence sent to appellant’s address of record was returned to OWCP as undeliverable. In 

response, OWCP contacted the employing establishment on November 13, 2014 to obtain his current address. The 

employing establishment informed OWCP that appellant was now residing in its domiciliary and provided OWCP 

with his new address. However, the record does not indicate that OWCP sent notice of the December 8, 2014 

examination to the new address. The mailbox rule provides that proper and timely mailing of a document in the 

ordinary course of business raises a rebuttable presumption of receipt by the addressee. See Kenneth E. Harris, 54 

ECAB 502, 505 (2003). When there is evidence of nondelivery or other evidence that supports that the addressee 

did not receive the correspondence, the mailbox presumption does not apply. See J.L., Docket No. 15-0828 (issued 

August 3, 2015). 
6

ORDER 

IT IS HEREBY ORDERED THAT the May 11 and February 10, 2015 decisions of the 

Office of Workers’ Compensation Programs are reversed. 

Issued: November 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board