United States Department of Labor

Employees’ Compensation Appeals Board

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T.A., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

MEDICAL CENTER DEVENS, Ayer, MA, 

Employer

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Docket No. 21-0582

Issued: December 14, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On March 3, 2021 appellant filed a timely appeal from a November 20, 2020 merit decision 

and a February 19, 2021 nonmerit 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

ISSUES

The issues are: (1) whether OWCP properly suspended appellant’s compensation benefits 

pursuant to 5 U.S.C. § 8123(d), effective November 20, 2020, due to his failure to attend a 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,followingthe February 19, 2021 decision, OWCP received additional evidence. 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 

additional evidence for the first time on appeal. Id.
2

scheduled medical examination; and (2) whether OWCP properly denied appellant’s request for a 

review of the written record as untimely filed pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On January 19, 2005 appellant, then a 35-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on January 17, 2005 he sustained a left tibial fracture when 

he was assaulted by an inmate while in the performance of duty. He stopped work on the date of 

injury. OWCP accepted the claim for left tibial fracture and authorized intramedullary rodding 

with proximal and distal interlock left tibia surgery, which occurred on January 18, 2005. It paid 

appellant on the supplemental rolls as of March 4, 2005 and on the periodic rolls from April 17, 

2005 through June 9, 2007. On May 12, 2010 OWCP expanded acceptance of the claim to include 

lumbar radiculopathy, low back strain, and L5-S1 herniated lumbar disc. Appellant again received 

wage-loss compensation on the supplemental and periodic rolls from March 29 to July 3, 2010. 

OWCP accepted a recurrence of disability in an August 16, 2019 decision. Appellant was paid 

appropriate wage-loss compensation on the supplemental rolls as of March 29, 2019 and on the

periodic rolls as of September 15, 2019. 

In a letter dated August 21, 2020, OWCP notified appellant that it had scheduled a 

November 2, 2020 second opinion examination with Dr. Hyman Glick, a Board-certified 

orthopedic surgeon, to determine appellant’s work capacity. It explained that appellant’s

entitlement to compensation could be suspended, pursuant to 5 U.S.C. § 8123(d), if he refused to 

submit to or obstructed an examination.

In a memorandum of telephone call (Form CA-110) dated September 21, 2020, appellant 

related that he planned to return to work on November 1, 2020 and would call to verify his return 

to work. OWCP informed him that if he returned to work that his second opinion evaluation would 

be cancelled. 

In a letter dated September 29, 2020, the employing establishment requested that OWCP

retain appellant’s second opinion appointment until his return to work was verified by a Form 

CA-3. 

In a letter dated October 29, 2020 to the employing establishment, OWCP advised that it 

would not cancel the second opinion appointment until it verified that appellant returned to work 

in a Form CA-3. 

In a November 3, 2020 memorandum, the medical scheduler notified OWCP that appellant 

did not attend the scheduled November 2, 2020 appointment with Dr. Glick. 

In a November 3, 2020 notice, OWCP proposed to suspend appellant’s wage-loss 

compensation and medical benefits pursuant to 5 U.S.C. § 8123(d) as he failed to attend the 

examination as directed by OWCP that was scheduled on November 2, 2020 with Dr. Glick. It 

advised appellant to provide a written explanation of his reasons for failing to attend the scheduled 

examination, with substantive corroborating evidence, within 14 days. 
3

On November 10, 2020 OWCP received a report of work status (Form CA-3) indicating 

that appellant had returned to part-time modified work on November 3, 2020. A note on the form 

indicated that he had worked a half day and had then taken sick leave. 

In a letter dated November 10, 2020, OWCP acknowledged appellant’s return to part-time

limited-duty work on November 3, 2020. 

A compensation termination report dated November 10, 2020 indicated that appellant’s 

wage-loss compensation would be terminated effective November 3, 2020 as he had returned to 

work. OWCP’s records reflect that appellant received wage-loss compensation on the periodic 

rolls through November 7, 2020. 

On November 20, 2020 OWCP received an October 27, 2020 note from Dr. Andrew P. 

White, a Board-certified orthopedic surgeon, releasing appellant to return to full-duty work on 

November 3, 2020. 

By decision dated November 20, 2020, OWCP suspended appellant’s wage-loss 

compensation and medical benefits effective that day for failure to attend the November 2, 2020 

examination with Dr. Glick. It noted that on November 3, 2020 appellant had been advised that 

he had 14 days to provide written evidence justifying his failure to attend the examination;

however, he had not provided an explanation of his failure to attend. 

In a letter dated November 23, 2020, the employing establishment noted that the Form 

CA-3 contained erroneous information as appellant had returned to full-duty work on November 3, 

2020 not part time as noted on the form. It also noted that he worked four hours that day and then 

went out on sick leave. 

In letters dated December 11, 2020 and January 8, 2021, appellant stated that he returned 

to full-duty work based on an October 27, 2020 report from Dr. White and following an approved 

work hardening program. He stated that he communicated with OWCP regarding the scheduled 

November 2, 2020 appointment and was advised that he was no longer required to attend as he 

had been released to return to full duty on November 3, 2020.

On January 27, 2021 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. 

By decision dated February 19, 2021, OWCP denied appellant’s request for a review of the 

written record, finding that the request was untimely filed. The request was dated January 27, 

2021, more than 30 days following the November 20, 2020 decision. The hearing representative 

informed appellant that his case had been considered in relation to the issues involved, and that 

the issues could be equally addressed by requesting reconsideration and submitting evidence not 

previously considered. 
4

LEGAL PRECEDENT -- ISSUE 1

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.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 stops.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 until the date on which the claimant agrees to attend the examination. 

ANALYSIS -- ISSUE 1

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

and medical benefits pursuant to 5 U.S.C. § 8123(d).

On August 21, 2020 OWCP notified appellant that it had scheduled a November 2, 2020 

second opinion examination with Dr. Glick a Board-certified orthopedic surgeon. It explained that 

his entitlement to compensation could be suspended, pursuant to 5 U.S.C. § 8123(d), if he refused 

to submit to or obstructed an examination. On September 21, 2020 appellant notified OWCP that 

he planned to return to work on November 1, 2020 and would call to verify his return to work. On 

October 29, 2020 OWCP informed the employing establishment that it would not cancel the 

second opinion appointment until verification was received in a Form CA-3 that had returned to 

work. In a November 3, 2020 memorandum, the medical scheduler notified OWCP that appellant 

did not attend the scheduled November 2, 2020 appointment with Dr. Glick. 

On November 3, 2020 OWCP informed appellant that it proposed to suspend his

compensation benefits pursuant to 5 U.S.C. § 8123. It requested that he provide an explanation 

for his failure to attend the scheduled examination. On November 10, 2020 OWCP received a 

Form CA-3 verifying appellant had returned to work on November 3, 2020. On November 10, 

2020 it terminated his wage-loss compensation, noting that he had returned to full-duty work on 

3

5 U.S.C. § 8123(a).

4

See R.L., Docket No. 20-0160 (issued October 30, 2020); M.T., Docket No. 18-1675 (issued March 8, 2019); L.B., 

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

5

20 C.F.R. § 10.320; 5 U.S.C. § 8123(a); id. at § 10.323; R.L., id.; A.P., Docket No. 19-0328 (issued August 6, 

2019); D.K., Docket No. 18-0217 (issued June 27, 2018).

6

Id. at § 8123(d);id. at § 10.323; R.L., id.; A.P.,id.; D.K.,id.

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

2.810.13(d) (September 2010).
5

November 3, 2020. On November 20, 2020 OWCP received an October 27, 2020 note from

Dr. White, a Board-certified orthopedic surgeon, releasing appellant to return to full-duty work on 

November 3, 2020. However, by decision dated November 20, 2020, itsuspended his wage-loss 

compensation and medical benefits effective that day, finding that he had not provided an 

explanation for his failure to attend the scheduled second opinion examination on 

November 2, 2020. 

The Board thus finds that OWCP improperly suspended appellant’s compensation benefits 

on November 20, 2020. OWCP had advised him that the scheduled second opinion evaluation 

would be unnecessary if he was released to return to work on November 3, 2020 and he did in fact 

return to work. It also advised the employing establishment that the scheduled examination would 

be unnecessary if it received a CA-3 form that appellant had returned to work. OWCP received a 

CA-3 form on November 10, 2020 verifying his return to work on November 3, 2020. The 

evidence of record establishes that appellant had been released to full-duty work by his treating 

physician, Dr. White, effective November 3, 2020 and that appellant returned to work that day. 

The evidence of record also establishes that OWCP had terminated appellant’s wage-loss 

compensation on November 10, 2020. In the decision dated November 20, 2020, OWCP found 

that he had not explained his failure to attend the November 2, 2020 second opinion evaluation. 

However, the record establishes that OWCP was given an explanation regarding appellant’s good 

cause for not attending the scheduled second opinion examination with Dr. Glick on 

November 2, 2020. The evidence of record establishes that appellant had been released to fullduty work by his treating physician, Dr. White, effective November 3, 2020 and that he returned 

to work that day. Thus, as OWCP had previously informed appellant, a second opinion evaluation 

to determine appellant’s work capability was unnecessary.

OWCP may only invoke the sanction provision of 5 U.S.C. § 8123(d) if good cause for the 

refusal or obstruction is not established. As appellant established that he returned to full-duty work 

on November 3, 2020, he has established good cause. Therefore, the Board finds that OWCP acted 

unreasonably and therefore abused its discretion in suspending his wage-loss compensation and 

medical benefits effective November 20, 2020.

CONCLUSION

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

pursuant to 5 U.S.C. § 8123(d).8

8

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot. 
6

ORDER

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

Programs dated November 20, 2020 is reversed. The February 19, 2021 nonmerit decision is set 

aside as moot.

Issued: December 14, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board