United States Department of Labor

Employees’ Compensation Appeals Board

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M.N., Appellant

and

DEPARTMENT OF THE ARMY, TANK 

AUTOMOTIVE & ARMAMENTS COMMAND, 

RED RIVER ARMY DEPOT, Texarkana, TX, 

Employer

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Docket No. 19-1865

Issued: May 29, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 12, 2019 appellant filed a timely appeal from an August 8, 2019 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 entitlement to compensation 

benefits pursuant to 5 U.S.C. § 8123(d), effective August 7, 2019, due to his obstruction of a 

scheduled medical appointment.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and the circumstances of the 

case are set forth in the Board’s prior decision and are incorporated herein by reference. The 

relevant facts are set forth below.

On February 14, 2017 appellant, then a 54-year-old mechanic, filed an occupational disease 

claim (Form CA-2) alleging that, on February 10, 2017, he noted that he first became aware of his 

binaural sensorineural hearing loss and that his condition was caused or aggravated by his federal 

employment exposure to high noise levels from impact guns, rotor machines, sledge hammers, and 

motor vehicles.

By decision dated June 30, 2017, OWCP denied appellant’s claim. It found that he had not 

established that his hearing loss was causally related to his accepted hazardous noise exposure at 

work.

By decision dated June 22, 2018, the Board set aside the June 30, 2017 OWCP decision 

denying appellant’s hearing loss claim. The Board found that clarification from Dr. Mark D. 

Gibbons, a Board-certified otolaryngologist and second opinion examiner, was required with 

regard to whether appellant’s workplace exposure had contributed in any degree to his bilateral 

hearing loss.

Following the Board’s June 22, 2018 decision, OWCP sought additional clarification from

Dr. Gibbons. 

In a September 6, 2018 report, Dr. Gibbons discussed the results of the audiometric testing

from November 6, 2012, January 14, 2013 and February 10, 2017. He opined that appellant’s 

hearing loss was not due to federal employment because the recent audiograms presented 

significant inconsistencies. Dr. Gibbons recommended a repeat audiogram.

OWCP arranged for another second opinion examination to determine the relationship 

between appellant’s hearing loss and the accepted factors of his federal employment. By letter 

dated June 4, 2019, it referred appellant to Thomas D. Burns, an audiologist, for a 9:00 a.m. 

hearing test and Dr. Charles Hollingsworth, a Board-certified otolaryngologist, for a 10:00 a.m. 

examination on July 1, 2019.

In a July 1, 2019 letter, Dr. Hollingsworth indicated that appellant entered his medical 

office that day, but was not examined. He indicated that, upon entering the office, appellant 

advised that “he did not know why he was here, he was not going to get any money out of this 

visit, and he did not want to waste his time seeing the doctor.” Appellant then left after tossing his 

paper work to the office manager.

On July 9, 2019 OWCP received appellant’s audiometric testing from July 1, 2019.

 

2 Docket No. 17-1729 (issued June 22, 2018). 
3

In a July 9, 2019 notice of proposed suspension, OWCP advised appellant that 5 U.S.C. 

§ 8123(d) provides that, if an employee refuses to submit to or obstructs an examination, his or her 

right to compensation is suspended until the refusal or obstruction stops. It found that he 

obstructed the examination with Dr. Hollingsworth on July 1, 2019 as he left the medical office

before being seen by the physician. OWCP advised appellant that he must submit a new and 

pertinent explanation for obstructing the examination with Dr. Hollingsworth within 14 days of 

the notice of proposed suspension. If good cause was not established, entitlement to wage-loss 

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

until he attended and fully cooperated with the examination. Appellant did not submit any 

additional evidence/argument within the allotted period.

By decision dated August 8, 2019, OWCP finalized its proposed suspension, effective 

August 7, 2019. 

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’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.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’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.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 entitlement to compensation 

benefits pursuant to 5 U.S.C. § 8123(d), effective August 7, 2019, due to his obstruction of a 

scheduled medical appointment.

 

3 5 U.S.C. § 8123.

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

5 20 C.F.R. § 10.320.

6

Id. at § 10.323; L.B., supra note 4.

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

2.810.13(d) (September 2010).

8

Id.
4

The evidence of record is sufficient evidence to establish that appellant obstructed a 

scheduled medical examination, without good cause, within the meaning of 5 U.S.C. § 8123(d). 

In a June 4, 2019 letter, OWCP advised appellant of a second opinion examination with

Dr. Hollingsworth following audiological testing on July 1, 2019. Appellant attended the 

audiological testing and entered Dr. Hollingsworth’s office, but left prior to being examined by

Dr. Hollingsworth. In a July 9, 2019 notice of proposed suspension, OWCP advised him that 

5 U.S.C. § 8123(d) provides that, if an employee refuses to submit to or obstructs an examination, 

his or her right to compensation is suspended until the refusal or obstruction stops. It noted that 

appellant obstructed the examination with Dr. Hollingsworth scheduled for July 1, 2019. OWCP 

further advised him that he must submit a new and pertinent explanation for obstructing the 

examination with Dr. Hollingsworth within 14 days of the notice of proposed suspension. If good 

cause was not established, entitlement to wage-loss compensation and medical benefits would be 

suspended in accordance with 5 U.S.C. § 8123(d) until he attended and fully cooperated with the 

examination. Appellant did not submit any additional evidence/argument within the allotted 

period.

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.9 Under the circumstances of the present case, the Board finds that OWCP did not abuse 

its discretion in directing appellant to appear for a second opinion examination with

Dr. Hollingsworth.10 OWCP’s actions in this regard were reasonable and it properly found that 

appellant failed to provide good cause for obstructing the examination with Dr. Hollingsworth on 

July 1, 2019.11 Additionally, 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. If appellant actually attends the directed examination, payment retroactive to the 

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

benefits pursuant to 5 U.S.C. § 8123(d), effective August 7, 2019, due to his obstruction of a 

scheduled medical appointment.

 

9 See supra note 5.

10 Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of 

judgment, or actions taken which are contrary to both logic and probable deductions from established facts. See C.F.,

Docket No. 18-0791 (issued February 26, 2019).

11 E.S., Docket No. 18-1606 (issued April 16, 2019).

12 See A.E., Docket No. 18-1155 (issued February 21, 2019).
5

ORDER

IT IS HEREBY ORDERED THAT the August 8, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 29, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board