United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Bound Brook, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0328

Issued: August 6, 2019

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 26, 2018 appellant, through counsel, filed a timely appeal from an 

August 28, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether OWCP properly suspended appellant’s wage-loss 

compensation and medical benefits pursuant to 5 U.S.C. § 8123(d), due to his failure to attend 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

scheduled medical examinations; and (2) whether it properly denied appellant’s requests to 

reschedule medical examinations following a suspension of benefits pursuant to 5 U.S.C. 

§ 8123(d).

FACTUAL HISTORY

On November 18, 2015 appellant, then a 51-year-old carrier technician, filed a traumatic 

injury claim (Form CA-1) alleging that on November 13, 2015 a dog bit him on his left thigh when

he was delivering mail while in the performance of duty. He stopped work on November 13, 2015 

and did not return. OWCP accepted appellant’s claim for dog bite, left thigh and paid wage-loss 

compensation benefits on the supplemental rolls as of January 4, 2016. It placed him on the 

periodic compensation rolls effective July 24, 2016.

By decision dated April 26, 2017, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective that day. It determined that the weight of the medical evidence 

rested with the second opinion physicians, Dr. Timothy Henderson, a Board-certified orthopedic 

surgeon, and Dr. Melvin Vigman, a Board-certified neurologist, who opined that appellant no 

longer had any residuals or disability resulting from the work-related condition.

Appellant, through counsel, requested a telephonic hearing before an OWCP hearing 

representative, which was held September 26, 2017. He also submitted additional medical 

evidence. By decision dated November 15, 2017, OWCP’s hearing representative set aside the 

April 26, 2017 decision and remanded the case for further development and a de novo decision. 

She found that OWCP had failed to properly notify appellant’s counsel of the second opinion 

appointments at the time they were scheduled and thus appellant was deprived of his statutory right 

under 5 U.S.C. § 8123 to have a physician present during the second opinion examination. OWCP 

was directed to reinstate appropriate wage-loss compensation and medical benefits retroactive to 

the date of the decision and to refer appellant for another second opinion evaluation.

In a December 12, 2017 letter, OWCP notified appellant that he was receiving, or might 

be entitled to receive, benefits provided by the Office of Personnel Management (OPM). 

Explaining that annuity benefits from OPM and benefits for wage loss were not payable for the 

same period of time, OWCP provided appellant with an election form.

On December 19, 2017 OWCP notified appellant that it had scheduled a January 3, 2018 

second opinion medical examination with Dr. Daniel Feuer, a Board-certified neurologist, in 

Bloomfield, New Jersey. 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 December 27, 2017 OWCP received appellant’s Form CA-1105 Election of Benefits 

dated December 18, 2017 in which he elected retirement benefits under OPM effective 

December 5, 2017.

On January 2, 2018 OWCP notified appellant that another second opinion medical 

examination had been scheduled on January 19, 2018 with Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, in Willingboro, New Jersey. It explained that his entitlement to compensation 
3

could be suspended, pursuant to 5 U.S.C. § 8123(d), if he refused to submit to or obstructed an 

examination.

In a January 2, 2018 CA-110 note of a telephone call, appellant indicated that he had retired 

and would not be attending the January 3 and 19, 2018 second opinion appointments. OWCP 

advised him that his medical benefits would be suspended if he did not attend the second opinion 

appointments.

In a January 9, 2018 letter, OWCP informed appellant that it proposed to suspend his wageloss compensation and medical benefits due to his obstruction of a January 3, 2018 scheduled 

medical examination with Dr. Feuer. It noted that, while appellant had indicated, in a telephone 

call, that he did not attend the medical examination because he was retired, retirement was not a 

valid excuse to obstruct a mandatory medical examination as his case remained open for continued 

medical benefits. 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 

January 9, 2018 letter within the afforded period.

In a January 23, 2018 letter, OWCP informed appellant that it proposed to suspend his

wage-loss compensation and medical benefits due to his obstruction of the January 19, 2018 

scheduled medical examination with Dr. Askin. It noted that no reason(s) for his

nonattendance/obstruction of the scheduled examination had been received. 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 January 23, 2018 letter within the afforded 

time period. 

By decision dated January 24, 2018, OWCP suspended appellant’s wage-loss 

compensation and medical benefits pursuant to 5 U.S.C. § 8123(d), effective that day. It found 

that he had failed to report to Dr. Feuer’s scheduled examination of January 3, 2018 and that he 

had obstructed such examination as he had failed to provide good cause for not attending the 

examination. OWCP advised appellant that his compensation would be reinstated effective the 

date he attended and fully cooperated with such examination.

In a January 25, 2018 letter, OWCP advised appellant that he was required to attend 

scheduled second opinion examinations, that his “case cannot move forward” unless he attends the 

examinations, and that he should notify OWCP if he intended to do so.

By decision dated February 7, 2018, OWCP suspended appellant’s wage-loss 

compensation and medical benefits pursuant to 5 U.S.C. § 8123(d), effective February 7, 2018. It 

found that he had failed to report to Dr. Askin’s January 19, 2018 scheduled examination and that 

he had failed to provide an explanation of his failure to attend the examination within the allotted 

14 days. OWCP advised appellant that his compensation would be reinstated effective the date he 

attended and fully cooperated with such examination.
4

In a February 13, 2018 letter, counsel indicated that appellant would attend second opinion 

examinations. He noted that appellant’s father had died in Florida on November 10, 2017 and that 

appellant remained in Florida with his mother. Counsel further noted that appellant had assumed 

it was not necessary to go to the scheduled medical appointments as he had elected Federal 

Employees Retirement System (FERS) disability benefits.

In a February 15, 2018 letter, OWCP advised appellant and counsel that, because he had 

elected retirement and OPM benefits, the second opinion evaluations would not be currently 

rescheduled. Appellant was also advised that he could pursue his appeal rights regarding the 

suspension of his compensation benefits.

On February 20, 2018 counsel requested a telephonic hearing before an OWCP hearing 

representative with regard to OWCP’s January 24 and February 7, 2018 suspension decisions. 

During the hearing, held on July 2, 2018, appellant indicated that he had relocated to Florida as his 

mother was in poor health.3 Both appellant and counsel indicated that appellant would attend the 

second opinion medical examinations, if OWCP rescheduled.4 

By decision dated August 28, 2018, OWCP’s hearing representative affirmed the

January 24 and February 7, 2018 decisions with regard to the suspension of appellant’s wage-loss 

compensation and medical benefits. He noted that “In turn, the claimant’s election of [Civil 

Service] retirement as of December 5, 2017 effectively obstructed medical review of any 

entitlement to compensation, because as of such date entitlement to compensation ceased.” 

LEGAL PRECEDENT -- ISSUES 1 & 2

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.5 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.6 

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.7 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.8 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 

 

3 On July 2, 2018 OWCP received a change of address from appellant.

4 On July 3, 2018 OWCP transferred appellant’s case record to its Jacksonville, Florida office.

5 5 U.S.C. § 8123(a).

6 See 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).

7 20 C.F.R. § 10.320.

8 5 U.S.C. § 8123(a); id. at § 10.323; D.K., Docket No. 18-0217 (issued June 27, 2018).
5

his or her reasons for the refusal or obstruction.9 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. Such agreement may 

be expressed in writing or by telephone (documented on Form CA-110). When the claimant 

actually reports for examination, payment retroactive to the date on which the claimant agreed to 

attend the examination may be made.10

ANALYSIS -- ISSUE 1

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

medical benefits pursuant to 5 U.S.C. § 8123(d), due to his failure to attend scheduled medical 

examinations. 

In letters dated December 19, 2017 and January 2, 2018, OWCP notified appellant that he 

was being referred for a second opinion evaluation with Dr. Feuer, a Board-certified neurologist, 

and with Dr. Askin, a Board-certified orthopedic surgeon, respectively, on the issues of continuing 

residuals and current work capacity. It informed him of his obligations to attend and cooperate

with the examinations. The notices clearly explained that appellant’s compensation benefits would 

be suspended for failure to report to or for obstruction of the examination. The letters also 

contained the date, time, and location of his appointments. Appellant did not appear for either 

appointment, nor did he attempt to reschedule the appointments prior to the designated time or 

explain why he was unable to attend. 

By January 9 and 23, 2018 letters, OWCP provided appellant 14 days to submit a valid 

reason for his failure to attend the scheduled medical appointments. In this case, its hearing 

representative properly found that counsel had only advised OWCP on February 13, 2018, more 

than 14 days after both notices of proposed suspension, that appellant had been in Florida due to 

the death of his father on November 10, 2017 and that he remained in Florida with his mother. 

Furthermore, no supporting evidence was submitted establishing that appellant was unable to 

attend the scheduled appointments of January 3 and 19, 2018, due to the death of his father. 

Because appellant failed to attend the January 3 and 19, 2018 medical examinations, and because 

he did not provide good cause for the failure to attend within 14 days of OWCP’s January 9 and 

23, 2018 notices of proposed suspension, the Board finds that OWCP properly suspended his

compensation benefits.

11

 

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.

 

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

2.810.13(d) (September 2010).

10 5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

11 See M.T., supra note 6.
6

ANALYSIS -- ISSUE 2

The Board finds that OWCP improperly denied appellant’s requests to reschedule medical 

examinations following its suspension of his benefits.

By decisions dated January 24 and February 7, 2018, OWCP suspended appellant’s wageloss compensation and medical benefits due to his failure to attend scheduled second opinion 

medical examinations. In a February 13, 2018 letter, counsel indicated that appellant would attend 

the second opinion examinations. During the July 2, 2018 telephonic hearing, both appellant and 

counsel reiterated that appellant would attend the second opinion medical examinations, if 

rescheduled. In the August 28, 2018 decision, OWCP’s hearing representative affirmed the 

suspension of appellant’s wage-loss compensation and medical benefits. He noted that “In turn, 

the claimant’s election of [Civil Service] retirement as of December 5, 2017 effectively obstructed 

medical review of any entitlement to compensation, because as of such date entitlement to 

compensation ceased.” 

OWCP’s procedures provide that when a claimant is entitled to disability benefits under 

FECA and retirement annuity OPM, the employee must make an election between OWCP benefits 

and OPM benefits. The employee has the right to elect the monetary benefit which is the more 

advantageous.12 The procedures further provide that, “Regardless of which monetary benefits the 

claimant elects, any medical treatment required for the effects of the compensable injury will 

continue to be provided under FECA.”

13

 The Board therefore finds that the hearing representative 

improperly denied appellant’s requests to reschedule the second opinion examinations as appellant 

remained entitled to medical benefits following his election of retirement benefits. 

Accordingly, upon return of the case record OWCP shall reschedule the appropriate second 

opinion examinations. 

CONCLUSION

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

medical benefits pursuant to 5 U.S.C. § 8123(d), due to his failure to attend schedule medical 

examinations. The Board further finds that OWCP improperly denied appellant’s requests to 

reschedule medical examinations following its suspension of his benefits.

 

12 Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (February 1995 and 

January 1997).

13 Id. at Chapter 2.1000.6.a (February 1995).
7

ORDER

IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and reversed in part. 

Issued: August 6, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board