United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.S., Appellant

and

U.S. POSTAL SERVICE, MEMPHIS 

NETWORK DISTRIBUTION CENTER, 

Memphis, TN, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-0080

Issued: June 10, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 26, 2021 appellant filed a timely appeal from an October 14, 2021 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 October 14, 2021, due to her obstruction of a 

scheduled medical examination.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On March 14, 2003 appellant, then a 38-year-old mail handler equipment operator, filed a 

traumatic injury claim (Form CA-1) alleging that on February 18, 2003 she sustainedshoulder and 

chest pain, a headache, and stress from repetitive pulling out of wire containers while in the 

performance of duty. She stopped work on February 18, 2003 and returned to full-time modified 

work on March 7, 2003. OWCP accepted the claim for bilateral shoulder rotator cuff sprain/

strain.2

OWCP prepared a statement of accepted facts dated May 18, 2021 in which it included that 

appellant was currently working full time with restrictions in a temporary modified position. 

On June 15, 2021 OWCP referred appellant to Dr. James T. Gaylon, a Board-certified 

orthopedic surgeon, for a second opinion evaluation on July 1, 2021 to determine whether she 

continued to have residuals from her accepted bilateral shoulder sprain/strain. 

In a letter dated June 22, 2021, appellant requested the second opinion examination with

Dr. Galyon on July 1, 2021 be canceled and rescheduled. She alleged improper and untimely 

notification as she was only given 11 days’ notice. Appellant also asserted that she was 

uncomfortable with Dr. Gaylon because of a prior second opinion evaluation wherein he 

misclassified his examination as an impartial medical evaluation, and he defamed her character by 

stating thatshe was unstable, and aggressive. She related that her prior second opinion evaluation 

with him had been under OWCP File No. xxxxxx343 and she argued that he should be barred from 

conducting any examinations under FECA because he was biased towards her. 

In a letter dated July 6, 2021, OWCP responded to appellant’s June 22, 2021 letter. It 

advised that she was given adequate notice of her appointment as the appointment memorandum 

was dated June 15, 2021 for the appointment on July 1, 2021. OWCP noted appellant’s other 

arguments and advised that no further action would be taken on her letter as she did attend the 

scheduled July 1, 2021 appointment with Dr. Gaylon. 

In a report dated July 1, 2021, Dr. Gaylon advised that appellant was very angry when she 

arrived for her evaluation. Appellant took photographs all around his waiting room with her cell 

phone. During her check in for her appointment, she complained that she did not need another 

evaluation and did not know why she was there. Appellant also refused to remove an elastic 

lumbar support on her back as she only wanted Dr. Gaylon to examine her shoulder. Dr. Gaylon

advised that she was very angry and would not fully participate in the examination. Physical 

examination findings were detailed. Dr. Gaylon opined that he did not believe that appellant could 

perform her regular mail handler duties and that her bilateral shoulder strain had not resolved. He 

recommended that she continue to work in her modified position. Dr. Gaylon emphasized that his 

examination and evaluation were limited by the appellant’s “very poor cooperation.”

2 OWCP has accepted that appellant sustained a traumatic injury on November 29, 2018 causing sprain of the right 

wrist and ganglion of the right wrist. It assigned this claim OWCP File No. xxxxxx343 and administratively combined 

it with master OWCP File No. xxxxxx577. 
3

After receiving his July 1, 2021 report, OWCP requested a supplemental report from

Dr. Gaylon clarifying whether appellant’s bilateral shoulder strain had resolved and also whether 

the accepted sprain of the right wrist and ganglion cyst had resolved. In a report dated July 7, 

2021, Dr. Gaylon opined that her bilateral shoulder strain had not resolved. He explained that the 

MRI scan showed supraspinatus tendinosis, “which is a degenerative inflammatory response to 

persistent use of this extremity,” that has not resolved. Dr. Gaylon pointed out that this is the 

reason appellant is on limited range of motion and strength use of both shoulders. Regarding her

accepted sprain of the right wrist and ganglion cyst, he opined that they had resolved, noting that

Dr. Childress had removed the ganglion cyst. Dr. Gaylon reported that appellant could not use 

both shoulders through a full range of motion and heavy lifting. He noted, however, that he 

believed that she was working full time on a forklift, which accommodated her shoulder problems. 

Dr. Gaylon concluded that appellant could not perform the duties of a mail handler as she does not 

have strength or range of motion of both shoulders. He explained that, “While [appellant] is not 

very cooperative, I do believe [that] she has limited range of motion in the shoulders. I do believe 

[that] this is a result of her work-related activities. I do believe [that] they are permanent wearand-tear problems which will not resolve.”

On July 8, 2021 Dr. Galyon completed a work capacity evaluation (Form OWCP-5c) in 

which he noted a diagnosis of bilateral rotator cuff tendinitis and related that appellant would have 

permanent restrictions. He indicated that standing, reaching, pushing, pulling, and lifting were 

limited to one hour, and that pushing, pulling, and lifting were limited to 10 pounds. 

In a July 27, 2021 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 she 

obstructed the examination with Dr. Gaylon on July 1, 2021 as she was very angry and failed to 

fully participate in the examination. OWCP advised appellant that she must submit a new and 

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

of proposed suspension. If good cause was not established, entitlement to compensation and 

medical benefits would be suspended in accordance with 5 U.S.C. § 8123(d) until she attended 

and fully cooperated with the examination. 

Appellant responded to the notice of proposed suspension of benefits by letter dated 

August 5, 2021. She asserted that she would see Dr. Gaylon again if her own physician could be 

present, or listening or viewing the examination by video. Appellant further stated that, if that was 

not possible, she would attend the examination anyway. 

On August 25, 2021 appellant requested that the notice of proposed suspension due to 

obstruction be dismissed. She also submitted medical and factual evidence. Appellant asserted 

that Dr. Gaylon was aware of her request that her physician be with her during the examination or 

that she be allowed to record the examination. She denied obstruction because removal of her 

back brace, as requested by Dr. Gaylon, would cause back and neck pain. Appellant also noted 

that he was able to examine her shoulders despite her refusal to remove the back brace. 

By decision dated October 14, 2021, OWCP finalized its notice of proposed suspension, 

effective that day. It found that appellant did not establish good cause for obstruction of the 

medical examination nor did she reschedule a medical appointment with Dr. Gaylon. 
4

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 (5 U.S.C. § 8123(d)).

ANALYSIS

The Board finds that OWCP improperly suspended appellant’s entitlement to 

compensation benefits pursuant to 5 U.S.C. § 8123(d), effective October 14, 2021, due to her 

obstruction of a scheduled medical appointment.

The evidence of record is insufficient 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 15, 2021 letter, OWCP advised appellant of a second opinion examination with

Dr. Gaylon to determine whether she continued to have residuals from her accepted bilateral 

shoulder sprain/strain. Appellant attended the examination with him on July 1, 2021. Dr. Gaylon 

advised that she was angry and refused to fully cooperate with the examination. While he reported

that appellant demonstrated “very poor cooperation,”ultimately he was able to conduct a sufficient 

evaluation to determine that she still had residuals of her accepted condition and that she should 

continue in modified position. In a supplemental report dated July 7, 2021, Dr. Gaylon opined that 

her bilateral shoulder strain had not resolved. He concluded that appellant could not perform the 

duties of a mail handler as she did not have strength or range of motion of both shoulders. The 

Board has previously explained that, to find an obstruction of medical examination, OWCP must 

3

5 U.S.C. 8123.

4

See T.A., Docket No. 21-0582 (issued December 14, 2021); 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; T.A., id.; R.L., id.; A.P., Docket No. 19-0328 (issued 

August 6, 2019); D.K., Docket No. 18-0217 (issued June27, 2018).

6

Id. at § 8123(d);id. at § 10.323; T.A., id.; 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

establish that she refused to attend a directed examination, or if she did attend the examination, 

OWCP must establish that the actions of her constituted such an obstruction that the evaluation 

was invalidated.8

Dr. Gaylon was in fact able to make findings regarding residuals of appellant’s accepted 

bilateral shoulder conditions and he was able to recommend permanent restrictions for her 

accepted conditions. OWCP did not establish that her conduct during the examination invalidated 

the medical evaluation. 

The Board therefore finds that OWCP has not established that appellant obstructed the 

July 1, 2021 medical examination, such that her entitlement to compensation benefits should be 

suspended.

CONCLUSION

The Board finds that OWCP improperly suspended appellant’s entitlement to 

compensation benefits pursuant to 5 U.S.C. § 8123(d), effective October 14, 2021, due to her 

obstruction of a scheduled medical appointment.

ORDER

IT IS HEREBY ORDERED THAT the October 14, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: June 10, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

8

See Ernest E. Gaylor, ECAB 97-523 (issued October 9, 1998).