United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.M., Appellant

and

U.S. POSTAL SERVICE, MORGAN 

PROCESSING & DISTRIBUTION CENTER, 

New York, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 17-2025

Issued: March 22, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 24, 2017 appellant filed a timely appeal from a January 31, 2017 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 properly suspended appellant’s compensation benefits,

effective January 31, 2017 pursuant to 5 U.S.C. § 8123(d) due to his failure to attend a scheduled 

medical examination.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance of OWCP’s January 31, 2017 decision and on appeal, appellant 

submitted new evidence. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its 

final decision. The Board is, therefore, precluded from reviewing this new evidence for the first time on appeal. See

20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY

On May 28, 1999 appellant, then a 53-year-old mail handler, filed an occupational disease 

claim (Form CA-2) for lower back pain and radiculopathy. He claimed that he felt pain in his 

lower back while pushing overloaded postal containers (or “postcons”) at work. Appellant related 

that since 1994 his workload and the weight of the equipment he used had increased. He did not 

stop work. 

OWCP, by development letter dated July 23, 1999, informed appellant of the deficiencies 

in his claim and afforded him 30 days to submit additional and factual and medical evidence. 

Appellant did not respond.

In an August 31, 1999 decision, OWCP denied appellant’s occupational disease claim,

finding that the evidence of record was insufficient to establish that factors of his federal 

employment caused or contributed to his claimed medical condition. It noted that he did not 

respond to its July 23, 1999 development letter.

On August 30, 2000 appellant requested reconsideration and submitted additional factual 

and medical evidence in support of his claim.

By decision dated November 24, 2000, OWCP modified its August 31, 1999 decision, 

finding that appellant had established the claimed employment factors, but denied his occupational 

disease claim as the medical evidence of record failed to establish causal relationship between 

those factors and his diagnosed lumbar radiculopathy.

On October 26, 2001 appellant, through counsel, requested reconsideration and submitted 

medical evidence which indicated that he had lumbar radiculopathy due to his work duties.

In a January 22, 2002 decision, OWCP vacated the November 24, 2000 decision and 

accepted appellant’s claim for lumbosacral radiculopathy. It paid him disability compensation on 

the periodic rolls beginning June 16, 2002.

In a December 7, 2016 letter, OWCP informed appellant that there was no current medical 

evidence in the case file to establish his entitlement to continuing compensation benefits. It 

requested that he submit a current medical report from an attending physician addressing his

employment-related residuals and disability. OWCP also requested that the physician complete 

an accompanying work capacity evaluation (OWCP-5c form), indicating whether appellant was 

able to return to work. Appellant was afforded 30 days to submit the requested information.

By letter dated December 27, 2016, OWCP referred appellant, together with a statement of 

accepted facts, the medical record, and a list of questions, to Dr. Timothy J. Henderson, an 

orthopedic surgeon, for a second opinion evaluation. It advised that an appointment had been 

scheduled for January 10, 2017 at 10:00 a.m. with Dr. Henderson. Appellant was further advised 

that, if he refused or obstructed the examination, his compensation could be suspended under 5 

U.S.C. § 8123(d).

In a January 6, 2017 statement, appellant claimed that he was unable to respond to OWCP’s 

December 7, 2016 development letter within the allotted time period due to an acute stroke he had 

on August 27, 2016. He requested an additional week to submit the requested information. In 
3

support of his request, appellant submitted a September 1, 2016 medical record from Mt. Sinai 

West Hospital which indicated that he was leaving the hospital against the medical advice of

Dr. Leonard Girardi, a Board-certified thoracic surgeon.

On January 11, 2017 OWCP proposed to suspend appellant’s compensation benefits 

pursuant to section 8123(d) of FECA for failure to attend the January 10, 2017 examination with

Dr. Henderson. Appellant was advised that he should provide a written explanation of his reasons, 

with substantive corroborating evidence, within 14 days for failing to attend the scheduled 

examination. He did not respond.

By decision dated January 31, 2017, OWCP finalized its proposed suspension, effective 

that same date. It noted that it had directed appellant on December 27, 2016 to report for the 

examination scheduled for January 10, 2017, but he did not attend the examination or show good 

cause for his failure to attend the examination as he failed to respond to the proposed suspension.

LEGAL PRECEDENT

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 an examination by a qualified physician as often 

and at such times and places as OWCP considers reasonably necessary.5 Section 8123(d) of FECA 

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

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

ceases.6 OWCP procedures provide that, before OWCP may invoke these provisions, the 

employee is to be 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(d) of FECA.8

ANALYSIS

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

attend a medical examination on January 10, 2017. 

OWCP scheduled a second opinion medical examination on January 10, 2017 with

Dr. Henderson. Appellant did not appear for the scheduled examination. By decision dated 

 

3 5 U.S.C. § 8123.

4

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

5 20 C.F.R. § 10.320.

6 Supra note 5; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

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

2.810.13(d) (September 2010).

8

Id.
4

January 31, 2017, OWCP suspended his compensation benefits based on his failure to appear. 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

On December 27, 2016 OWCP advised appellant that it would refer him for a second 

opinion medical examination and that, if he did not attend the appointment, his benefits could be 

suspended. Appellant was referred for a second opinion medical evaluation with Dr. Henderson 

and was advised of the need for the examination and the time and place for the scheduled 

appointment. While appellant related in his January 6, 2017 letter that he would require more time 

to respond to OWCP’s December 27, 2016 letter due to his August 27, 2016 stroke, he did not 

allege that he could not attend the second opinion evaluation due to his medical condition. 

Appellant did not attend the scheduled January 10, 2017 appointment. 

OWCP subsequently allowed appellant 14 days to provide reasons for failing to appear. 

Again, appellant did not respond. As appellant did not respond to the proposed suspension, he has 

not established good cause for refusing to undergo the January 10, 2017 examination.11 

Thus, the Board finds that OWCP properly suspended his compensation benefits, effective 

January 31, 2017 pursuant to section 8123(d) of FECA.12 When appellant actually reports for 

examination, payment retroactive to the date on which he agreed to attend the examination may 

be made.13

CONCLUSION

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

effective January 31, 2017 pursuant to 5 U.S.C. § 8123(d) due to his failure to attend a scheduled 

medical examination.

 

9 Lynn C. Huber, 54 ECAB 281 (2002).

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

11 L.B., Docket No. 14-2005 (issued January 28, 2015).

12 Supra note 5; S.B., 58 ECAB 267 (2007).

13 C.S., Docket No. 11-1366 (issued December 12, 2011); E.B., 59 ECAB 298 (2008). When the claimant actually 

reports for examination, payment retroactive to the date on which the claimant agreed to attend the examination may 

be made. Supra note 7 at Chapter 2.810.13(e) (September 2010).
5

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 22, 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