United States Department of Labor

Employees’ Compensation Appeals Board

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T.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Los Angeles, CA, Employer

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Docket No. 22-0795

Issued: September 12, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE 

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On April 25, 2022 appellant filed a timely appeal from a March 31, 2022 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

assigned the appeal Docket No. 22-0795.

1

On January 2, 1997 appellant, then a 45-year-old immigration inspector, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he sustained injuries to his hands, arms, 

shoulders, neck, back, and right knee while in the performance of duty. He explained that he was 

running in the rain while wearing a 60-pound backpack, and he slipped and fell, bracing his fall 

with outstretched arms. Appellant stopped work on the date of injury. OWCP accepted his claim 

for lesions of the bilateral ulnar nerves;opioid prescription;other affections of left shoulder region 

(not elsewhere classified); sprain of the elbows; localized primary osteoarthritis and articular 

cartilage disorder of the left shoulder; left lateral epicondylitis; other joint derangement of the left 

upper arm; sprain of the left forearm and radial collateral ligament; sprain of the shoulders and 

1 The Board notes that following the March31, 2022 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

acromioclavicular (AC) joints; left carpal tunnel syndrome; tenosynovitis of the left hand and 

wrist; keloid scar; and pathologic fracture of distal radius and ulna. It paid appellant wage-loss 

compensation for total disability.

In a letter dated January 14, 2022, OWCP notified appellant that he was being referred for 

a second opinion examination on March 28, 2022 with Dr. William P. Curran, a Board-certified 

orthopedic surgeon, to determine the status of his accepted employment-related conditions. It

informed him of his obligations to attend and cooperate with the examination and explained that 

his compensation benefits would be suspended, pursuant to 5 U.S.C. § 8123(d),for failure to report 

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

the appointment and was mailed by OWCP to appellant’s last known address of record.

In a letter dated February 8, 2022, OWCP notified appellant that he was being referred for 

a second opinion examination on March 15, 2022 with Dr. Jon P. Kelly, a Board-certified 

orthopedic surgeon. The letter also contained the time and location of his appointment and was 

mailed to his last known address of record.

In a March 14, 2022 memorandum of telephone call (Form CA-110) an OWCP claims 

examiner noted that she advised appellant that the “[second opinion physician] [was] to determine 

work status and further treatment needed.”

In a letter dated March 15, 2022, QTC Medical Services (QTC), OWCP’s scheduling 

service indicated that appellant failed to attend the scheduled appointment with Dr. Kelly on 

March 15, 2022.

In a March 16, 2022 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 refused 

to submit to the examination with Dr. Kelly on March 15, 2022. OWCP advised appellant that he 

must submit a pertinent explanation for not attending the examination 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 he attended and 

fully cooperated with the examination.

On March 31, 2022 OWCP received a letter from appellant dated March 14, 2022, which

indicated that he had received OWCP’s January 14, 2022 letter for a March 28, 2022 examination 

by Dr. Curran and thereafter received a February 8, 2022 letter for a March 15, 2022 examination 

by Dr. Kelly. Appellant noted that he had undergone ulnar nerve revision surgery by Dr. John 

Lane, a Board-certified orthopedic surgeon, on October 29, 2021, and that the March 15, 2022 

examination with Dr. Kelly conflicted with an existing follow-up appointment with Dr. Lane. He

related that he, therefore, contacted QTC to reschedule the evaluation by Dr. Kelly. Appellant

further related QTC advised him that the examination was canceled with Dr. Curran and 

rescheduled with Dr. Kelly. He indicated that he then contacted OWCP, and a claims examiner 

advised him that the March 28, 2022 appointment with Dr. Curran was still scheduled and that 

there was no other second opinion appointment in his record with OWCP. Attached to appellant’s 

March 14, 2022 letter were the scheduling notices, as outlined above, and various medical reports, 

including a March 15, 2022 medical report by Dr. Lane.
3

By decision dated March 31, 2022, OWCP finalized its notice of proposed suspension, 

effective that date. It noted that it had not received an explanation from appellant of his failure to 

attend the examination with Dr. Kelly on March 15, 2022.

The Board has duly considered this matter and finds that this case is not in posture for 

decision.

In the case of William A. Couch,

2

the Board held that, when adjudicating a claim, OWCP 

is obligated to consider all evidence properly submitted by a claimant and received by OWCP 

before the final decision is issued. It is crucial that OWCP review and address all evidence relevant 

to the subject matter properly submitted prior to the issuance of its final decision, as the Board’s 

decisions are final with regard to the subject matter appealed.3

When OWCP suspended appellant’s compensation, it noted that appellant did not respond 

within the 14 days allotted to the March 16, 2022 notice of proposed suspension and, thus, he had 

failed to provide an explanation for his failure to attend the scheduled medical examination. The 

Board notes that on March 31, 2022, the same date OWCP issued its final decision, it received 

appellant’s March 14, 2022 response with attachments. However, it did not acknowledge the 

response or address the reasons given for not attending the examination in its March 31, 2022 

decision. 

As OWCP did not review and address appellant’s March 14, 2022 response when it 

suspended his compensation, the Board finds that this case is not in posture for decision. 4 On 

remand, itshall review all evidence of record and, following any further development as it deems 

necessary, it shall issue a de novo decision.

2

41 ECAB 548 (1990).

3

See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); Linda Johnson, 

45 ECAB 439 (1994) (wherein the Board found that the principle in Couch also applied to situations where evidence 

was received by OWCP on the same day it issued the decision); see alsoWilliamA. Couch, id.

4

See C.H., Docket No. 11-1624 (issued March 7, 2012) citing Willie J. Everett, Docket No. 03-991 (issued 

October 10, 2003) (where OWCP did not consider the claimant’s August26, 2002 response before suspending his 

compensation on August 30, 2002, the Board set aside the suspension and remanded the case for consideration of the 

evidence submitted, citing Couch).
4

IT IS HEREBY ORDERED THAT the March 31, 2022 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

proceedings consistent with this order of the Board.

Issued: September 12, 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