United States Department of Labor

Employees’ Compensation Appeals Board

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M.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

West Sacramento, CA, Employer

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Docket No. 18-1675

Issued: March 8, 2019

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 September 4, 2018 appellant filed a timely appeal from a June 11, 2018 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.

ISSUE

The issue is whether OWCP properly suspended appellant’s wage-loss compensation and 

medical benefits, effective September 25, 2017, pursuant to 5 U.S.C. § 8123(d).

FACTUAL HISTORY

On September 26, 2005 appellant, then a 47-year-old mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained a right hand injury due to performing her 

repetitive work duties. She asserted that she first became aware of her claimed injury and its 

 

 

1 5 U.S.C. § 8101 et seq.
2

relationship to her federal employment on September 15, 2005 when she felt a sharp pain in her 

right hand while cutting bundles of mail. Appellant did not initially stop work. She instead 

performed limited-duty work without wage loss.

OWCP accepted appellant’s claim for right radial styloid tenosynovitis, right enthesopathy 

of the right wrist/carpus, and reflex sympathetic dystrophy (complex regional pain syndrome) of 

the right upper extremity. Appellant stopped work on August 20, 2009 and received wage-loss 

compensation.

Appellant filed a claim for a schedule award (Form CA-7). By decision dated January 6, 

2010, OWCP granted her a schedule award for 11 percent permanent impairment of her right upper 

extremity. The award was calculated under the standards of the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2

On April 21, 2014 appellant filed a claim for compensation (Form CA-7) seeking an 

increased schedule award due to her accepted work injuries. In support of her claim, she submitted

a September 20, 2013 report from Dr. Robert S. Ferretti, a Board-certified orthopedic surgeon, 

who determined that appellant had 20 percent permanent impairment of her right upper extremity 

under the standards of the sixth edition of the A.M.A., Guides.

In an October 7, 2014 report, Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon

serving as an OWCP referral physician, determined that appellant had two percent permanent 

impairment of her right upper extremity under the standards of the sixth edition of the A.M.A., 

Guides.

In a May 19, 2016 letter, mailed to appellant’s address of record, OWCP informed 

appellant that there was a conflict in the medical opinion evidence regarding the extent of the 

permanent impairment of her right upper extremity. It referred appellant to Dr. Harry A. 

Khasigian, a Board-certified orthopedic surgeon serving as an impartial medical specialist to 

evaluate the permanent impairment of her right upper extremity. The appointment with

Dr. Khasigian was scheduled for June 8, 2016 at 1:45 p.m., Pacific Standard Time (PST). OWCP 

advised appellant that, if she failed to provide an acceptable reason for not appearing for the 

examination or obstructed the examination, her benefits would be suspended in accordance with 

section 8123(d) of FECA.

In a June 8, 2016 report, Dr. Khasigian reported the findings of the physical examination 

he conducted on that date. He noted that his examination revealed no abnormality in appellant’s 

right upper extremity, but indicated that, prior to making a final determination, he had ordered two 

diagnostic tests for appellant “which should resolve all questions regarding her situation.” These 

included a cervical spine x-ray test to evaluate whether appellant had a cervical radiculopathy, and 

a triphasic bone scan of the right upper extremity to evaluate whether she had complex regional 

pain syndrome. Dr. Khasigian noted that several attempts were made to schedule appellant for 

these diagnostic tests, but that she failed to return telephone calls made by the testing facility. He 

also noted that “at the current time it is our understanding that the tests have not been performed.”

 

 

2 A.M.A., Guides (6th ed. 2009).
3

In a September 7, 2017 letter, OWCP informed appellant that it proposed to suspend her 

wage-loss compensation and medical benefits due to her obstruction of a medical examination.3 It 

noted that Dr. Khasigian had advised that appellant had not followed through with his request to 

undergo two diagnostic tests. OWCP afforded appellant 14 days to submit evidence or argument 

challenging the proposed suspension action. It noted, “If good cause is not established, entitlement 

to compensation and medical benefits will be suspended in accordance with 5 U.S.C. § 8123(d) 

until you attend and fully cooperate with the examination.” Appellant failed to respond to OWCP’s 

September 7, 2017 letter within the afforded period.

By decision dated September 25, 2017, OWCP suspended appellant’s wage-loss 

compensation and medical benefits pursuant to 5 U.S.C. § 8123(d), effective September 25, 2017.

It found that she had obstructed Dr. Khasigian’s examination as she had failed to provide good 

cause for not undergoing the two requested diagnostic tests. OWCP advised appellant that her

compensation would be reinstated effective the date she fully complies with Dr. Khasigian’s 

request by undergoing the diagnostic tests.

On November 17, 2017 OWCP received a report of the cervical spine x-ray testing that 

appellant underwent on November 2, 2017. On December 20, 2017 it received a report of the 

triphasis bone scan of the right upper extremity that she underwent on December 1, 2017.

In a January 18, 2018 letter, appellant requested that OWCP remove the suspension of her 

entitlement to wage-loss compensation and medical benefits because she had undergone the two 

requested diagnostic tests.

By decision dated June 11, 2018, OWCP affirmed its September 25, 2017 decision with 

regard to the suspension of appellant’s wage-loss compensation and medical benefits, effective 

September 25, 2017. It further noted that it had modified its September 25, 2017 decision to reflect 

that appellant’s wage-loss compensation and medical benefits had been reinstated effective 

November 2, 2017, the date she underwent the cervical spine x-ray test.

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.4 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.5 

OWCP’s 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.6 Section 

8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit to or 

 

3 OWCP noted that section 8123(d) of FECA provides 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 stops.

 

4 5 U.S.C. § 8123(a).

5 L.B., Docket No. 17-1891 (issued December 11, 2018); J.T., 59 ECAB 293 (2008).

 

6 20 C.F.R. § 10.320.
4

obstructs a directed medical examination, his or her right to compensation is suspended until the 

refusal or obstruction stops.

7

 OWCP’s 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.8 If good cause for the refusal or obstruction is not 

established, entitlement to compensation is suspended in accordance with section 8123(d) of 

FECA.9

ANALYSIS

The Board finds that OWCP properly suspended appellant’s wage-loss compensation and 

medical benefits, effective September 25, 2017.

In May 2016, OWCP referred appellant to Dr. Khasigian, a Board-certified orthopedic 

surgeon serving as an impartial medical specialist, for an appointment on June 8, 2016 to evaluate 

the permanent impairment of her right upper extremity. It advised appellant that, if she failed to 

provide an acceptable reason for not appearing for the examination or obstructed the examination, 

her benefits would be suspended in accordance with section 8123(d) of FECA.

Although appellant attended the appointment scheduled on June 8, 2016 and participated 

in the physical examination on that date, she did not fully cooperate with Dr. Khasigian’s complete 

evaluation. Dr. Khasigian noted that his examination revealed no abnormality in appellant’s right 

upper extremity, but indicated that, prior to making a final determination, he had ordered two 

diagnostic tests for appellant in order to resolve questions regarding her medical condition. He

ordered a cervical spine x-ray test to evaluate whether appellant had a cervical radiculopathy and 

a triphasis bone scan of the right upper extremity to evaluate whether she had complex regional 

pain syndrome. Dr. Khasigian noted that several attempts were made to schedule appellant for 

these diagnostic tests, but that she failed to return telephone calls made by the testing facility.

The Board finds that appellant’s failure to schedule and appear for the cervical spine x-ray 

test and the triphasis bone scan of the right upper extremity constituted an obstruction of

Dr. Khasigian’s evaluation. For the purpose of invoking the penalty provision of section 8123(d) 

of FECA, it is sufficient that appellant did not fully cooperate with Dr. Khasigian’s evaluation.10 

As noted above, section 8123(d) of FECA provides 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 stops.11 At the time OWCP issued its September 25, 2017 decision 

suspending compensation, appellant had not shown good cause for not undergoing the diagnostic 

tests or otherwise fully cooperated with Dr. Khasigian’s evaluation.

 

7 5 U.S.C. § 8123(a); id. at § 10.323; D.K., Docket No. 18-0217 (issued June 27, 2018).

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

2.810.13(d) (September 2010).

9

Id.

10 See P.B., Docket No. 17-1426 (issued June 19, 2018) (obstruction found when the claimant attended an OWCPdirected examination, but failed to fully participate in testing).

11 See supra note 8.
5

For these reasons, OWCP properly suspended appellant’s wage-loss compensation and 

medical benefits, effective September 25, 2017.12

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. 

CONCLUSION

The Board finds that OWCP properly suspended appellant’s wage-loss compensation and 

medical benefits, effective September 25, 2017, pursuant to 5 U.S.C. § 8123(d). 

ORDER

IT IS HEREBY ORDERED THAT the June 11, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 8, 2019

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

 

12 The Board further notes that OWCP properly reinstated appellant’s compensation and medical benefits, effective 

November 2, 2017, the date that she made a good faith effort to cooperate by attending the first of the two requested 

diagnostic tests. Id.