United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.S., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

PACIFIC, Fort Shafter, HI, Employer

__________________________________________

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Docket No. 23-0801

Issued: December 13, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 2, 2023 appellant filed a timely appeal from December 9, 2022 and March 6, 2023 

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.

ISSUE

The issue is whether OWCP properly suspended appellant’s medical benefits pursuant to 

5 U.S.C. § 8123(d), effective December 9, 2022, due to his failure to attend a scheduled medical 

examination.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts 

are as follows. 

On May 5, 1989 appellant, then a 28-year-old tools and parts attendant, filed an 

occupational disease claim (Form CA-2) alleging that he developed severe bilateral plantar 

fasciitis and heel spur syndrome due to factors of his federal employment, specifically standing on 

his feet for extended periods of time. He stopped work on December 17, 1988 and returned to 

limited duty on April 19, 1989. OWCP accepted appellant’s claim for temporary aggravation of 

bilateral pes planus, and temporary aggravation of bilateral plantar fibromatosis. Appellant 

stopped work again on April 3, 1990. OWCP paid wage-loss compensation on the supplemental 

rolls, effective April 3, 1990. 

By decisions dated June 9 and July 17, 2014, OWCP expanded the acceptance of 

appellant’s claim to include permanent aggravation of bilateral flat feet (pes planus), permanent 

aggravation of bilateral plantar fibromatosis, mood disorder due to chronic bilateral foot pain --

major depressive, and bilateral tarsal tunnel syndrome. 

On March 6, 2016 OWCP terminated appellant’s wage-loss compensation benefits as 

appellant elected to receive Office of Personnel Management retirement benefits in lieu of FECA 

wage-loss compensation benefits. 

By decisions dated July 20 and September 9, 2016, OWCP expanded the acceptance of 

appellant’s claim to include bilateral Achilles tendinitis and bilateral posterior tibial tendinitis. 

In a letter dated August 5, 2022, QTC Medical Services (QTC), OWCP’s scheduling 

service, notified appellant that it had scheduled an August 18, 2022 second opinion examination 

with Dr. Thomas M. DeBerardino, a Board-certified orthopedic surgeon, to determine whether he 

was entitled to an increased schedule award due to his accepted conditions. It explained that 

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

By letter dated August 19, 2022, QTC notified OWCP that appellant failed to attend the 

August 18, 2022 appointment with Dr. DeBerardino. 

In a notice dated August 24, 2022, OWCP advised appellant that it proposed to suspend 

medical benefits because he failed to attend the August 18, 2022 appointment with

Dr. DeBerardino without providing good cause for his nonattendance. It informed him that 

2 Docket No. 98-1109 (issued May 17, 2000), petition for recon. denied, Docket No. 98-1109 (issued December 18, 

2000); Order Remanding Case, Docket No. 02-1171 (issued November 26, 2002); Docket No. 05-1349 (issued 

December 12, 2005); Docket No. 07-1206 (issued March 6, 2008); Docket No. 13-0777 (issued June 26, 2013); 

Docket No. 15-0259 (issued November 3, 2015), petition for recon., denied, Docket No. 15-0259 (issued August16, 

2016); Docket No. 18-1606 (issued April16, 2019); Order Remanding Case, Docket No. 20-0656 (issued April28, 

2020); Order Remanding Case, Docket No. 20-0565 (issued February 5, 2021).
3

5 U.S.C. § 8123(d) provided that, if an employee refused to submit to or obstructed an 

examination, his or her right to compensation would be suspended until the refusal or obstruction 

stops. OWCP afforded appellant 14 days to submit new and pertinent explanation for not attending 

the examination with Dr. DeBerardino. It noted, “[i]f 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.” OWCP further indicated that, if appellant 

intended to report to, and fully cooperate with, any rescheduled examination with

Dr. DeBerardino, he should contact OWCP immediately in order to reschedule the examination. 

In a letter dated August 27, 2022, appellant informed OWCP that he was currently out of 

town in Florida in preparation of selling his home. He indicated that he anticipated being back in 

Texas no later than September 15, 2022. Appellant noted that OWCP could schedule his 

appointment after that date. 

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

opinion examination at 11:00 a.m. on November 21, 2022 with Dr. Charles W. Kennedy, Jr., a 

Board-certified orthopedic surgeon, to determine whether he was entitled to an increased schedule 

award due to his accepted conditions. The letter again 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 contained the 

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

In a letter dated October 12, 2022, appellant informed OWCP that he had returned from 

Florida and requested that OWCP reschedule his examination for a schedule award due to his 

accepted foot conditions. 

In a letter dated October 17, 2022, appellant indicated that he had received OWCP’s notice 

for a second opinion evaluation on November 21, 2022. He requested that OWCP confirm that 

the appointment was for a “second opinion schedule award.” 

In an October 27, 2022 letter, appellant alleged that OWCP had not responded to any of 

his letters. He provided a list of questions for OWCP regarding his second opinion evaluation. 

In a November 4, 2022 letter, appellant requested that his records reflect that his foot 

condition was permanently aggravated. He noted that this case had been pending before OWCP 

for some time, and alleged that OWCP was delaying the process. 

On November 28, 2022 QTC notified OWCP that appellant did not attend the appointment 

scheduled for November 21, 2022 with Dr. Kennedy. 

By decision dated December 9, 2022, OWCP suspended appellant’s medical benefits, 

effective that date, pursuant to 5 U.S.C. § 8123(d), due to his failure, without good cause, to attend 

the August 18, 2022 appointment with Dr. DeBerardino. 

On January 3, 2023 appellant requested reconsideration. He alleged that OWCP did not 

provide him with at least 30 days’ notice to attend the second opinion evaluation. Appellant also 

requested that the physician be specialized in the foot and ankle. He noted that OWCP had not 

informed him of the specific physician title, provided a statement of accepted facts or questions 
4

for the second opinion evaluation, nor provided a copy of the physician’s curriculum vitae. 

Appellant further asserted that OWCP failed to issue an appropriate notice of proposed suspension 

of compensation. 

By decision dated March 6, 2023, OWCP denied modification of the December 9, 2022 

decision. 

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 medical benefits pursuant to 

5 U.S.C. § 8123(d), effective December 9, 2022, due to his failure to attend a scheduled medical 

examination.

In an August 5, 2022 letter, QTC notified appellant that he was being referred for a second 

opinion examination on August 18, 2022 with Dr. DeBerardino to determine whether appellant

was entitled to an increased schedule award due to his accepted employment-related conditions. 

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 

3

5 U.S.C. § 8123.

4 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); id. § 10.323; S.S., Docket No. 22-1291 (issued April26, 2023); D.K., Docket No. 18-0217 

(issued June 27, 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.
5

obstruction of the examination. It 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 

August 5, 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 August 18, 2022 appointment, and he did not attempt to 

reschedule the appointment prior to the designated time. In a notice dated August 24, 2022, OWCP 

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

appointment. In an August 27, 2022 letter, appellant explained that he was currently out of town 

in Florida and requested that OWCP schedule his appointment after he returned to Texas. OWCP 

subsequently rescheduled his second opinion evaluation for November 21, 2022. However, 

appellant also failed to keep the November 21, 2022 appointment. Therefore, the Board finds that 

he did not provide good cause for not appearing at the appointment scheduled for August 18, 2022. 

As appellant did not attend the August 18, 2022 examination as scheduled and failed to 

provide good cause for failing to appear within 14 days of OWCP’s notice of proposed suspension, 

the Board finds that OWCP properly suspended his medical benefits in accordance with 5 U.S.C. 

§ 8123(d), effective December 9, 2022.10 

CONCLUSION

The Board finds that OWCP properly suspended appellant’s medical benefits pursuant to 

5 U.S.C. § 8123(d), effective December 9, 2022, due to his failure to attend a scheduled medical 

examination. 

9

See R.D., Docket No. 20-1551 (issued November 8, 2021); James A. Gray, 54 ECAB 277 (2002).

10 See C.W., Docket No. 21-0943 (issued February 17, 2023); see also G.R., Docket No. 20-0915 (issued 

January 29, 2021).
6

ORDER

IT IS HEREBY ORDERED THAT the March 6, 2023 and December 9, 2022 decisions

of the Office of Workers’ Compensation Programs are affirmed.

Issued: December 13, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board