United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Q.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE

Coppell, TX, Employer

__________________________________________

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Docket No. 21-1188

Issued: May 26, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On July 30, 2021 appellant filed a timely appeal from May 11 and July 14, 2021 merit 

decisions 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.

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $8,841.25 for the period July 20, 2020 through January 30, 2021, because she continued 

to receive wage-loss compensation following her return to full-time work; (2) whether OWCP 

properly determined that appellant was at fault in the creation of the overpayment, thereby 

precluding waiver of recovery of the overpayment; and (3) whether OWCP properly suspended 

appellant’s wage-loss compensation and medical benefits pursuant to 5 U.S.C. § 8123(d), effective 

May 11, 2021, due to her failure to attend a scheduled medical examination.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On May 10, 2019 appellant, then a 21-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained a concussion and facial lacerations on 

April 26, 2019 when she was involved in a roll-over motor vehicle accident while in the 

performance of duty. On May 22, 2019 OWCP accepted the claim for laceration without foreign 

body of other part of head and concussion with loss of consciousness of unspecified duration. On 

July 18, 2019 it expanded the acceptance of the claim to include contusion of the right thigh and 

other intervertebral disc displacement of the thoracic region. On October 28, 2019 OWCP further

expanded its acceptance of the claim to include neoplasm of uncertain behavior of connective and 

other soft tissue. It paid appellant wage-loss compensation for total disability on the supplemental 

rolls from June 12, 2019 through January 4, 2020 and on the periodic rolls from January 5, 2020 

through January 30, 2021. 

In an operative report dated February 7, 2020, Dr. Richard Buch, a Board-certified 

orthopedic surgeon, noted that he performed wound irrigation, debridement, and placement of

vacuum assisted closure (VAC) for appellant’s right thigh hematoma and seroma. 

Intraoperatively, he documented multiple small pockets of fluid indicative of chronic edema and 

swelling. Dr. Buch noted that he placed the wound VAC to dissipate the fluid over time. 

In a work-capacity evaluation (Form OWCP-5c) dated April 16, 2020, Dr. Chukwuma 

Osuagwu, a Board-certified internist, indicated that appellant was capable of returning to work full

time. He noted diagnoses of head laceration and concussion. 

In a letter dated June 30, 2020, OWCP notified appellant that it had scheduled an August 3, 

2020 second opinion examination with Dr. Jack H. Henry, a Board-certified orthopedic surgeon, 

to determine the status of her accepted employment injury. It explained that her entitlement to 

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 the appointment and were 

mailed to appellant’s address of record in the ordinary course of business. In a subsequent letter 

dated August 6, 2020, the appointment was rescheduled to September 16, 2020. The 

September 16, 2020 appointment was later canceled. 

In a financial disclosure statement (Form CA-1032) dated September 24, 2020, appellant 

reported her return to private sector work on July 20, 2020 including her hourly rate of pay and 

the name and address of her new employer. 

On October 13, 2020 OWCP sent appellant a development letter requesting information 

regarding her private sector employment, including her job title and description of duties 

performed, number of hours worked per week, inclusive dates of employment, and weekly rate of 

pay. Appellant was afforded 30 days to respond. 

On November 18, 2020 OWCP received appellant’s private sector pay records for the 

periods July 20 through October 2, 2020 and October 17 through 30, 2020. 

In a letter dated January 21, 2021, OWCP notified appellant that she was being referred for 

a second opinion examination on March 10, 2021 with Dr. Vinod Kumar Panchbhavi, a Board-
3

certified orthopedic surgeon, to determine the status of her accepted employment-related 

conditions. Appellant was again informed of her obligations to attend and cooperate with the 

examination and it was explained that her compensation benefits would be suspended for failure 

to report to or for obstruction of the examination. The letter also contained the date, time, and 

location of her appointment and was mailed to her address of record. 

In e-mails dated January 21, 2021, T.H., a supervisor with the employing establishment, 

advised an OWCP claims examiner, that appellant had resigned from her position with the 

employing establishment effective May 19, 2020. In response, the claims examiner advised that 

the second opinion examination was scheduled because the treating physician had listed only two 

of the accepted conditions in his full-duty release. 

In a letter dated January 28, 2021, OWCP contacted appellant’s private employer 

requesting information regarding appellant’s employment, including her job title and description 

of duties performed, number of hours worked per week, inclusive dates of employment, and 

weekly rate of pay. The response deadline was not indicated in the letter. In a separate letter of 

even date, OWCP requested similar information from appellant. Appellant was afforded 30 days 

to respond. 

The record contains a January 28, 2021 compensation termination worksheet calculating 

an overpayment of compensation in the amount of $8,841.25 for the period July 20, 2020 through 

January 30, 2021. In a February 1, 2021 preliminary overpayment determination, OWCP advised 

appellant of its finding that she had received an overpayment of compensation in the amount of 

$8,841.25 for the period July 20, 2020 through January 30, 2021 because she received 

compensation for total disability after she returned to work in the private sector. It further notified 

her of its preliminary finding that she was at fault in the creation of the overpayment, because she 

accepted a payment that she knew, or reasonably should have known, to be incorrect. Additionally, 

OWCP provided appellant with an overpayment action request form and informed her that within 

30 days she could request a telephonic conference, a final decision based on the written evidence, 

or a prerecoupment hearing. It requested that she complete an enclosed overpayment recovery 

questionnaire (Form OWCP-20) and submit supporting financial documentation including copies 

of income tax returns, bank account statements, bills, pay slips, and any other records to support 

income and expenses. 

On March 1, 2021 appellant submitted a completed Form OWCP-20, indicating no 

monthly income, total monthly expenses of $1,400.00, and assets totaling $4,200.00. She attached 

a statement explaining that her private sector hire date was July 20, 2020, but that she had not 

begun working full time until September 8, 2020. Appellant further noted that she was not capable 

of returning to work for the employing establishment, because she was unable to perform the 

amount of movement and heavy lifting involved in her position. 

On March 17, 2021 Dr. Panchbhavi advised OWCP that appellant had not attended the 

March 10, 2021 appointment. 

In a notice dated March 18, 2021, OWCP proposed to suspend appellant’s wage-loss 

compensation and medical benefits as she failed to attend the medical examination scheduled for 

March 10, 2021. It afforded her 14 days to respond in writing with an explanation as to why she 
4

failed to attend the examination with Dr. Panchbhavi. OWCP advised that, if good cause was not 

established, appellant’s compensation benefits would be suspended pursuant to 5 U.S.C. § 8123(d) 

until she attended and fully cooperated with the examination. It instructed her to contact OWCP 

immediately if she intended to report to a rescheduled examination with Dr. Panchbhavi. 

Appellant did not respond within the afforded period.

By decision dated May 11, 2021, OWCP suspended appellant’s wage-loss compensation 

and medical benefits effective that date, pursuant to 5 U.S.C. § 8123(d), due to her failure, without 

good cause, to attend the medical examination scheduled for March 10, 2021. 

By decision dated July 14, 2021, OWCP finalized the preliminary overpayment 

determination that appellant received an overpayment of compensation in the amount of $8,841.25

for the period July 20, 2020 through January 30, 2021 because she continued to receive wage-loss 

compensation following her return to work. It determined that she was at fault in the creation of 

the overpayment, thereby precluding waiver of recovery of the overpayment. OWCP ordered 

appellant to repay the $8,841.25 overpayment in full within 30 days. 

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability or death of an employee resulting from personal injury sustained while in the 

performance of his or her duty.2 

OWCP’s regulations provide in pertinent part: “Compensation for wage loss due to 

disability is available only for any periods during which an employee ’s work-related medical 

condition prevents him or her from earning the wages earned before the work-related injury.”

3

 

Aclaimant is not entitled to receive temporary total disability benefits and actual earnings for the 

same period.4 OWCP’s procedures also provide that an overpayment of compensation is created 

when a claimant returns to work, but continues to receive wage-loss compensation.5

OWCP’s procedures state that, after a claimant has been working for 60 days, it will make 

a determination as to whether actual earnings fairly and reasonably represent wage -earning 

capacity.6 The formula for determining loss of wage-earning capacity based on actual earnings, 

2

Supra note 1 at § 8102(a).

3

20 C.F.R. § 10.500.

4

See J.L., Docket No. 18-1266 (issued February 15, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018); 

M.S., Docket No. 16-0289 (issued April21, 2016); L.S., 59 ECAB 350, 352-53 (2008).

5

See J.S., Docket No. 17-0260 (issued December 28, 2017); B.H., Docket No. 09-0292 (issued September 1, 2009); 

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.1 

(September 2018).

6

See L.J., Docket No. 14-0970 (issued August 21, 2014); id. at Claims, Determining Wage-Earning Capacity Based 

on Actual Earnings, Chapter 2.815.2(b) (June 2013).
5

developed in the Albert C. Shadrick decision,7 has been codified at section 10.403 of OWCP’s 

regulations. If the claimant is entitled to compensation for partial wage loss after returning to 

work, the claims examiner should compute entitlement using the Shadrick formula and authorize 

compensation on a 28-day payment cycle.8

ANALYSIS -- ISSUE 1 

The Board finds that the fact of overpayment has been established in this case.

OWCP continued to pay appellant wage-loss compensation for disability through 

January 30, 2021, after she had returned to work. As noted above, a claimant is not entitled to 

receive compensation for disability during a period in which she had actual earnings. 9 Therefore, 

an overpayment of compensation was created in this case.

10

The Board further finds, however, that this case is not in posture for decision with regard 

to the period and amount of the overpayment. In the February 1, 2021 preliminary notice, OWCP 

determined the overpayment of compensation to be $8,841.25 for the period July 20, 2020 through 

January 30, 2021. It failed to complete development regarding the nature of appellant’s return to 

work in the private sector despite the evidence of record suggesting that she did not return to fulltime work until September 8, 2020. OWCP further failed to apply Shadrick11 in calculating 

appellant’s overpayment. As such, the period and amount of the overpayment are not in posture 

for decision.12

The case will be remanded to OWCP for recalculation of the period and amount of the 

overpayment, to be followed by a new preliminary determination of overpayment and a de novo

overpayment decision.13

LEGAL PRECEDENT -- ISSUE 3

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.14 The 

determination of the need for an examination, the type of examination, the choice of locale, and 

7

5 ECAB 376 (1953); 20 C.F.R. §§ 10.403(d)-(e).

8

Supra note 6 at Chapter 2.815.3(b) (June 2013). Albert C. Shadrick, id.; P.B., Docket No. 19-0329 (issued 

December 31, 2019); C.Y., Docket No. 18-0263 (issued September 14, 2018).

9

Supra note 5.

10 Supra note 6.

11 Supra note 8.

12 Z.D., Docket No. 19-0662 (issued December 5, 2019); D.W., Docket No. 10-0361(issued December 23, 2010).

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

14 5 U.S.C. § 8123.
6

the choice of medical examiners are matters within the province and discretion of OWCP.15 

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.16 

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.17 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.18 If good cause for the refusal or 

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

8123(d) of FECA.19

ANALYSIS -- ISSUE 3

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

medical benefits pursuant to 5 U.S.C. § 8123(d), effective May 11, 2021, due to her failure to 

attend a scheduled medical examination.

In a letter dated January 21, 2021, OWCP notified appellant that she was being referred for 

a second opinion examination on March 10, 2021 with Dr. Panchbhavi to determine the status of 

her accepted employment-related conditions. The letter informed her of her obligations to attend 

and cooperate with the examination and explained that her compensation benefits would be 

suspended for failure to report to or for obstruction of the examination. The letter also contained 

the date, time, and location of appellant’s appointment.

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary 

course of business is presumed to have been received. This is known as the mailbox rule.20 The 

March 10, 2021 letter was sent to appellant’s address of record and is presumed to have been 

received by her absent any notice of nondelivery. She has not submitted evidence to rebut this 

presumption.

Appellant did not appear for the March 10, 2021 appointment, nor did she attempt to 

reschedule the appointment prior to the designated time. In a notice dated March 18, 2021, OWCP 

provided her 14 days to submit a valid reason for her failure to attend the scheduled medical 

appointment. Appellant did not respond.

As appellant did not attend the examination as scheduled and failed to provide good cause 

for failing to appear within 14 days of OWCP’s March 18, 2021 notice of proposed suspension, 

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

16 20 C.F.R. § 10.320.

17 5 U.S.C. § 8123(d); see alsoid. at § 10.323; D.K., Docket No. 18-0217 (issued June27, 2018).

18 Supra note 8 atChapter 2.810.13d (September 2010).

19 Id. at Chapter 2.810.13e.

20 See James A. Gray, 54 ECAB 277 (2002).
7

the Board finds that OWCP properly suspended her wage-loss compensation and medical benefits 

in accordance with 5 U.S.C. § 8123(d), effective May 11, 2021.

21

CONCLUSION

The Board finds that OWCP properly determined that an overpayment of compensation 

was created. The Board further finds, however, that the case is not in posture for de cision regarding 

the period and amount of the overpayment. The Board further finds that OWCP properly 

suspended appellant’s compensation pursuant to 5 U.S.C. § 8123(d), effective May 11, 2021, due 

to her failure to attend a scheduled medical examination.

ORDER

IT IS HEREBY ORDERED THAT the July 14, 2021 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part and the case is remanded for 

further proceedings consistent with this decision of the Board. It is further ordered that the May 11, 

2021 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: May 26, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

21 See G.R., Docket No. 20-0915 (issued January 29, 2021).