United States Department of Labor

Employees’ Compensation Appeals Board

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P.K., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

NATIONAL CEMETERY ADMINISTRATION, 

MOUNTAIN HOME NATIONAL CEMETERY, 

Mountain Home, TN, Employer

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Docket No. 18-0179

Issued: May 22, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 31, 2017 appellant filed a timely appeal from a July 20, 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.

ISSUE

The issue is whether OWCP properly suspended appellant’s compensation benefits for the 

period July 5 to August 10, 2016, 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

FACTUAL HISTORY

On April 18, 2013 appellant, then a 29-year-old cemetery caretaker, filed a traumatic injury 

claim (Form CA-1) for low back pain. He alleged that on April 16, 2013 he felt pain in his lower 

back when lifting 100- to 200-pound rolls of sod while in the performance of duty.

2

 Appellant 

was terminated from the employing establishment, effective September 25, 2013, when his 

temporary appointment expired. On May 12, 2014 he underwent an L4-5 discectomy.

OWCP accepted the claim for permanent aggravation of a displaced L4-5 disc. It paid 

appellant wage-loss compensation for the period August 1, 2013 to May 2, 2015. OWCP placed 

appellant’s case on the periodic rolls, effective April 5, 2015. Appellant did not return to work.

By letter dated May 10, 2016, OWCP referred appellant, together with a statement of 

accepted facts (SOAF), the medical record, and a list of questions to Dr. Kirpal Sidhu, a Boardcertified orthopedic surgeon, for a second opinion evaluation. It advised that an appointment had 

been scheduled for May 24, 2016 at 3:00 p.m. with Dr. Sidhu at his specified office address. 

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 May 19, 2016 telephone memorandum (Form CA-110), OWCP noted that appellant 

contended that he was unable to attend the scheduled appointment as he had a 30-minute travel 

restriction, but Dr. Sidhu’s office was a two-and-a-half-hour drive from his residence. It notified 

appellant that there was no current medical report of record that would corroborate a travel 

restriction. At appellant’s request, OWCP sent him a list of questions for his physician.

In a letter dated May 24, 2016, the medical management contractor notified OWCP that 

appellant had not attended the scheduled medical appointment with Dr. Sidhu.

On June 9, 2016 OWCP proposed to suspend appellant’s compensation benefits pursuant 

to section 8123(d) of FECA for failure to attend the May 24, 2016 appointment with Dr. Sidhu. 

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.

In response, appellant submitted a June 15, 2016 letter in which he asserted that the 

appointment with Dr. Sidhu had been cancelled prior to May 24, 2016. He added that he had 

requested his physician to send in an updated medical report.

By decision dated July 5, 2016, OWCP finalized its proposed suspension, effective that 

same date. It noted that it had directed appellant on May 10, 2016 to report for the examination 

 

2 OWCP initially denied the claim by decision dated June 13, 2013, based on a lack of medical evidence to establish 

causal relationship. Following an oral hearing before an OWCP hearing representative held on June 11, 2014, it issued 

an August 22, 2014 decision which vacated the June 13, 2013 decision and remanded the claim to OWCP for a secondopinion referral. On remand of the case OWCP obtained a November 20, 2014 second opinion report by

Dr. Nicholas A. Grimaldi, a Board-certified orthopedic surgeon, who opined that the accepted April 16, 2013 

employment incident permanently aggravated a displaced L4-5 disc. By decision dated January 30, 2015, OWCP 

accepted that the April 16, 2013 employment incident caused permanent aggravation of a displaced L4-5 disc.
3

scheduled for May 24, 2016, but he did not attend. OWCP found that there was insufficient 

evidence to support that he could not attend the May 24, 2016 appointment with Dr. Sidhu.

In a letter dated August 11, 2016 and received by OWCP on August 16, 2016, appellant 

requested reconsideration. He expressed his willingness to attend a second-opinion appointment, 

and requested that OWCP reinstate his wage-loss compensation. Appellant also telephoned 

OWCP on August 23, 2016 to request that his second-opinion appointment be rescheduled.

In a letter dated August 25, 2016, OWCP referred appellant, a SOAF and the medical 

record to Dr. Nicholas A. Grimaldi, a Board-certified orthopedic surgeon, for a second-opinion 

examination on September 22, 2016. Appellant attended the appointment.

By letter decision dated September 27, 2016, OWCP vacated its July 5, 2016 decision,

which suspended appellant’s compensation benefits, and reinstated appellant’s compensation 

benefits, commencing August 11, 2016, as he indicated in his August 11, 2016 letter that he would 

attend a rescheduled second-opinion appointment.

In a letter dated October 5, 2016 and received by OWCP on October 12, 2016, appellant 

requested reconsideration of OWCP’s September 27, 2016 decision. He requested that OWCP 

reinstate his monetary compensation benefits for the period July 5 to August 10, 2016.

By decision dated July 20, 2017, OWCP denied reinstatement of appellant’s compensation 

benefits for the period July 5 to August 10, 2016 as appellant did not indicate he would attend the 

scheduled second-opinion appointment until August 11, 2016. It explained that the period of 

refusal was deducted from the period in which compensation benefits were payable.

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 

 

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 5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).
4

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 May 24, 2016.

OWCP scheduled a second-opinion medical examination on May 24, 2016 with Dr. Sidhu. 

Appellant did not appear for the scheduled examination. By decision dated July 5, 2016, OWCP 

suspended his compensation benefits due to 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 May 10, 2016 OWCP advised appellant its intention to 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. Sidhu and 

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

He did not attend the scheduled May 24, 2016 appointment.

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

Appellant submitted a June 15, 2016 letter asserting that his physician had restricted him from 

traveling for more than 30 minutes, and Dr. Sidhu’s office was a two-and-a-half-hour drive. 

However, he did not provide evidence to corroborate his allegations. Therefore, appellant has not 

established good cause for refusing to undergo the May 24, 2016 examination.11 Without evidence 

in support of his allegation, OWCP has nothing more than an unsubstantiated excuse.12 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.13 There is no evidence in the record that 

OWCP abused its discretion in directing the examination.

 

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

2.810.13(d) (September 2010).

8

Id. See also L.M., Docket No. 17-2025 (issued March 22, 2018).

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

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

11 L.M., supra note 8; L.B., Docket No. 14-2005 (issued January 28, 2015).

12 Atanacio G. Sambrano, 51 ECAB 557 (2000).

13 Supra note 9.
5

In a letter dated August 11, 2016, appellant indicated his willingness to attend a 

rescheduled second-opinion appointment. By decision dated September 27, 2016, OWCP 

reinstated appellant’s compensation benefits retroactive to August 11, 2016 as his refusal to attend 

the scheduled second-opinion appointment ended on that date.14 However, as appellant remained 

in refusal from July 5 to August 10, 2016, he was not entitled to compensation benefits for that 

period. Thus, the Board finds that OWCP properly suspended his compensation benefits for the 

period July 5 to August 10, 2016 pursuant to section 8123(d) of FECA.

15

 

CONCLUSION

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

period July 5 to August 10, 2016 pursuant to 5 U.S.C. § 8123(d) due to his failure to attend a 

scheduled medical examination.

ORDER

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

Programs dated July 20, 2017 is affirmed.

Issued: May 22, 2018

Washington, DC

Christopher J. Godfrey, 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

 

14 As the Board has held, when appellant actually reports for examination, payment retroactive to the date on which 

he or she agreed to attend the examination may be made. See L.M., supra note 8; E.B., 59 ECAB 298 (2008); Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.13(d) 

(September 2010).

 

15 20 C.F.R. § 10.320; S.B., 58 ECAB 267 (2007).