United States Department of Labor

Employees’ Compensation Appeals Board

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A.F., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Seattle, WA, 

Employer

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Docket No. 18-1155

Issued: February 21, 2019

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 14, 2018 appellant filed a timely appeal from an April 25, 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.

2

ISSUE

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

pursuant to 5 U.S.C. § 8123(d), effective April 25, 2018, due to his failure to attend a scheduled 

medical examination.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted new evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id.

Sandra D. Pruitt, 57 ECAB 126 (2005).
2

FACTUAL HISTORY

On November 29, 2015 appellant, then a 51-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that he developed right arm/shoulder and joint 

pain/stiffness on the left side of his body as a result of his repetitive work duties and increased 

work hours.3 He first became aware of his conditions and their relationship to his federal 

employment on November 23, 2015. Appellant stopped work on November 24, 2015. OWCP 

accepted the claim for unspecified sprain of the left shoulder joint and adhesive capsulitis of the 

left shoulder. On March 8, 2016 appellant returned to full-time, limited-duty work.

In a February 25, 2016 medical report, Dr. Charles A. Peterson, a Board-certified 

orthopedic surgeon, diagnosed left shoulder rotator cuff tendinitis/adhesive capsulitis. He 

determined that appellant had reached maximum medical improvement (MMI) on the date of his 

examination. 

By decision dated January 24, 2017, OWCP granted four hours of wage-loss compensation 

for temporary total disability on December 1, 2015, but denied compensation for the remaining 

hours of temporary total disability which had been claimed for the period November 23, 2015 

through September 19, 2016.4 

On June 16, 2017 appellant filed a claim for a schedule award (Form CA-7). In a 

development letter dated July 3, 2017, OWCP requested that he submit additional medical 

evidence establishing his schedule award claim. It afforded appellant 30 days for a response. 

Appellant did not submit the requested medical evidence.

By letters dated March 1 and 6, 2018, OWCP referred appellant to Dr. Jeffrey L. 

Holtgrewe, a Board-certified orthopedic surgeon, for a second opinion medical examination to 

determine the extent of his permanent impairment, if any, based on the sixth edition of the 

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

Guides)

5

and establish the date on which he reached MMI. It advised that an appointment had 

been scheduled for March 28, 2018 at 1:00 p.m. Appellant was further advised that, if he refused 

or obstructed the examination, his compensation could be suspended under 5 U.S.C. § 8123(d).

On March 19, 2018 appellant informed OWCP that he was not going to attend the 

March 28, 2018 appointment because something was going on with his social security benefits and 

he did not have an attorney. 

A March 28, 2018 e-mail reflects that OWCP was notified by Medical Consultants 

Network, OWCP’s scheduling contractor, that appellant did not appear for his March 28, 2018 

examination.

 

3 Prior to the filing of his occupational disease claim, appellant worked in a temporary assignment as a casual

employee, which ended on December 24, 2004. He was rehired on December 1, 2012. Appellant became a career 

employee on May 30, 2015.

4 On July 12, 2016 the employing establishment placed appellant off work due to his conduct. Appellant was 

terminated on February 8, 2017. 

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

In an April 6, 2018 notice, OWCP proposed to suspend appellant’s compensation benefits 

pursuant to 5 U.S.C. § 8123(d) as he failed to attend the examination scheduled for March 28, 

2018 with Dr. Holtgrewe. 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. 

By telephone conversation on April 16, 2018, appellant initially advised OWCP of his 

refusal to attend an examination. Subsequently during the conversation, he related that he needed 

to talk to someone about the examination. No further response was received from appellant.

By decision dated April 25, 2018, OWCP finalized its proposed suspension, effective that 

day. It noted that it directed appellant on March 1, 2018 to report for the examination scheduled 

on March 28, 2018, but he did not attend the examination or explain why he had refused to attend 

or had obstructed the examination.

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.6 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.7 OWCP 

regulations at section 10.320 provide that a claimant must submit to an examination by a qualified 

physician as often and at such times and places as it considers reasonably necessary.8 Section 

8123(d) of FECA and section 10.323 of its 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.9 OWCP procedures provide that, before OWCP 

may invoke these provisions, the employee is to be provided a period for 14 days within which to 

present in writing his or her reasons for the refusal or obstruction.10 If good cause for the refusal 

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

section 8123(d) of FECA.11

ANALYSIS

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

5 U.S.C. § 8123(d), for failure to attend a medical examination.

 

6 5 U.S.C. § 8123.

7

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007).

8 20 C.F.R. § 10.320.

9 5 U.S.C. § 8123; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

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

2.810.13(d) (September 2010). 

11 Id.
4

By letter dated March 1 2018, OWCP notified appellant that he was being referred for a 

second opinion evaluation on March 28, 2018 with Dr. Holtgrewe to determine the extent of his 

permanent impairment and the date in which he reached MMI. Appellant was advised of the need 

for the examination and the time and place for the scheduled appointment and the notices clearly 

explained that appellant’s entitlement to compensation benefits would be suspended for failure to 

report or if he obstructed the examination. Additionally, in a record of a telephone conversation 

dated March 6, 2018, appellant inquired about the scheduled appointment for a second opinion 

and was advised that OWCP arranged the appointment to obtain an impairment rating for his left 

arm. As noted, he did not appear for the scheduled 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 regard to instructing a claimant to undergo 

a medical examination, is that of reasonableness.12 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 unless appellant can establish good cause for failing to report at the 

scheduled time.

13

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

In response, appellant advised that he would not attend an examination with Dr. Holtgrewe. He

failed to explain why he did not attend the scheduled examination and did not indicate his intent 

to reschedule the appointment in his response. Thus, the Board finds that he has not provided good 

cause for refusing to attend the March 28, 2018 appointment. 

As appellant did not attend the March 28, 2018 scheduled examination and failed to 

provide good cause for failing to appear within 14 days of OWCP’s April 6, 2018 notice of 

proposed suspension, the Board finds that OWCP properly suspended entitlement to future 

compensation in accordance with 5 U.S.C. § 8123(d) until the date on which he agrees to attend 

the examination.15 When appellant actually reports for examination, payment retroactive to the 

date on which he agreed to attend the examination may be made.16

On appeal, appellant alleges that he was intentionally infected with an illness and sustained 

work-related injuries because he filed an Equal Employment Opportunity (EEO) complaint. The 

Board finds that the fact that appellant claimed that he sustained employment-related injuries is 

not a sufficient reason for his failure to attend the March 28, 2018 medical examination. 

Appellant further contends that he was not required to attend the scheduled examination 

because he was wrongfully terminated by the employing establishment. The fact that he claimed 

that he may have been wrongfully terminated from employment is not a sufficient reason for his 

 

12 D.K., Docket No. 18-0217 (issued June 27, 2018); Lynn C. Huber, 54 ECAB 281 (2002).

13 D.K., id.; M.B., Docket No. 10-1755 (issued March 24, 2011); supra note 9.

14 5 U.S.C. § 8123; D.K., supra note 12; S.B., 58 ECAB 267 (2007).

15 D.K., supra note 12; L.B., Docket No. 14-2005 (issued January 28, 2015).

16 Id.; C.S., Docket No. 11-1366 (issued December 12, 2011); E.B., 59 ECAB 298 (2008).
5

failure to attend the scheduled medical examination. Appellant has not otherwise explained why 

he did not attend the scheduled examination. The Board thus finds that OWCP properly suspended 

his entitlement to future compensation, in accordance with 5 U.S.C. § 8123(d), until the date on 

which he agrees to attend the examination.

CONCLUSION

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

pursuant to 5 U.S.C. § 8123(d), effective April 25, 2018, due to his failure to attend a scheduled 

medical examination.

ORDER

IT IS HEREBY ORDERED THAT the April 25, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 21, 2019

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