United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.C., Appellant

and

U.S. POSTAL SERVICE, DOMINICK V. 

DANIELS PROCESSING & DISTRIBUTION 

CENTER, Kearney, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 23-0217

Issued: June 6, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 1, 2022 appellant filed a timely appeal from a September 19, 2022 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.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance of the September 19, 2022 decision, OWCP received additional 

evidence. However, the Board’s Rules of Procedureprovides: “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

ISSUE

The issue is whether OWCP properly suspended appellant’s wage-loss compensation and 

medical benefits pursuant to 5 U.S.C. § 8123(d), effective September 19, 2022, due to his failure 

to attend a scheduled medical examination.

FACTUAL HISTORY

On January 16, 2002 appellant, then a 58-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he sustained a head injury when he walked 

out of the back of his truck and he scraped his head on a screw sticking out of a lock while in the 

performance of duty. He stopped work on January 16, 2002 and returned to full-duty work on 

January 22, 2002. On May 14, 2002 appellant filed a notice of recurrence (Form CA-2a) claiming 

a recurrence of total disability on March 6, 2002, causally related to his alleged January 16, 2002 

injury. He stopped work on March 6, 2002.

OWCP accepted appellant’s traumatic injury claim for contusion of face, scalp, and neck 

except eye(s); displacement of lumbar intervertebral disc without myelopathy; sprain of neck; 

lumbar intervertebral disc disorder with myelopathy; brachial neuritis or radiculitis, not otherwise 

specified; and myalgia and myositis, not otherwise specified. It paid him wage-loss compensation 

for total disability on the supplemental rolls as of March 13, 2002 and on the periodic rolls as of 

September 8, 2002.

By letter dated January 26, 2022, OWCP informed appellant that it was in the process of 

scheduling a second opinion examination to determine the nature of his accepted employmentrelated conditions and extent of disability, and to obtain appropriate treatment recommendations.

In a letter dated January 28, 2022, QTC Medical Services (QTC), OWCP’s scheduling 

service, notified appellant that it had scheduled a February 14, 2022 second opinion examination 

with Dr. Paul Lerner, a Board-certified neurologist. It explained that his entitlement to wage-loss 

compensation and medical benefits would be suspended for failure to report to or for obstruction 

of the examination, pursuant to 5 U.S.C. § 8123(d). The letter also contained the date, time, and 

location of appellant’s appointment and was mailed to his last known address of record.

By letter dated February 28, 2022, QTC notified OWCP that appellant failed to attend the 

February 14, 2022 appointment with Dr. Lerner.

In a letter dated April 7, 2022, QTC notified appellant that it had scheduled an April 27, 

2022 second opinion examination with Dr. Lerner. It again 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 appellant’s appointment and 

was mailed to his address of record.

By letter dated May 25, 2022, QTC advised OWCP that appellant failed to attend the 

April 27, 2022 appointment with Dr. Lerner.
3

In a notice dated May 31, 2022, OWCP proposed to suspend appellant’s wage-loss

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

April 27, 2022. It afforded him 14 days to respond in writing with an explanation as to why he 

failed to attend the examination with Dr. Lerner. 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 he attended and fully cooperated with the examination. It instructed him to contact OWCP 

immediately if he intended to report to a rescheduled examination with Dr. Lerner. Appellant did 

not respond within the afforded period.

By decision dated September 19, 2022, OWCP suspended appellant’s wage-loss 

compensation and medical benefits, effective that date, pursuant to 5 U.S.C. § 8123(d), due to his 

failure, without good cause, to attend the medical examination scheduled for April 27, 2022.

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.8

ANALYSIS

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

medical benefits, pursuant to 5 U.S.C. § 8123(d), effective September 19, 2022, due to his failure 

to attend a scheduled medical examination.

3

5 U.S.C. § 8123.

4

See Q.V., Docket No. 21-1188 (issued May 26, 2022); R.D., Docket No. 20-1551 (issued November 8, 2021);

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

5

20 C.F.R. § 10.320.

6

5 U.S.C. § 8123(d);see also id. at § 10.323; Q.V., supranote 4;D.K., Docket No. 18-0217 (issued June27, 2018).

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

2.810.13d (September 2010).

8

Id. at Chapter 2.810.13e.
4

Initially in a letter dated January 28, 2022, OWCP’s scheduling service, notified appellant 

that it had scheduled a February 14, 2022 second opinion examination with Dr. Lerner. Appellant 

did not attend the February 14, 2022 second opinion examination. 

In an April 7, 2022 letter, OWCP notified appellant that he was being referred for a second

opinion medical examination on April 27, 2022 with Dr. Lerner, to determine the status of his 

accepted employment-related conditions and disability. The letter informed him of his obligations 

to attend and cooperate with the examination and explained that his 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.9 The 

April 7, 2022 letter was sent to appellant’s address of record and is presumed to have been received 

by him absent any notice of nondelivery. Appellant has not submitted evidence to rebut this 

presumption.

Appellant did not appear for the April 27, 2022 appointment, nor did he attempt to 

reschedule the appointment prior to the designated time. In a notice dated May 31, 2022, OWCP 

provided him 14 days to submit a valid reason in writing for his 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 May 31, 2022 notice of proposed suspension, the 

Board finds that OWCP properly suspended his wage-loss compensation and medical benefits in 

accordance with 5 U.S.C. § 8123(d), effective September 19, 2022.

10

CONCLUSION

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

medical benefits, pursuant to 5 U.S.C. § 8123(d), effective September 19, 2022, due to his failure 

to attend a scheduled medical examination.

9

See E.G., Docket No. 20-1184 (issued March1, 2021); R.L., Docket No. 20-0186 (issued September 14, 2020);

C.Y., Docket No. 18-0263 (issued September 14, 2018); James A. Gray, 54 ECAB 277 (2002); ClaudiaJ. Whitten, 52 

ECAB 483 (2001).

10 See R.T., Docket No. 20-0933 (issued July 29, 2022); Q.V., supra note 4; A.H., Docket No. 21-0688 (issued 

October 6, 2021); G.R., Docket No. 20-0915 (issued January 29, 2021).
5

ORDER

IT IS HEREBY ORDERED THAT the September 19, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 6, 2023

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