United States Department of Labor

Employees’ Compensation Appeals Board

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R.L., Appellant

and

DEPARTMENT OF AGRICULTURE, 

KLAMATH NATIONAL FOREST, Eureka, CA, 

Employer

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Docket No. 23-1008

Issued: January 4, 2024

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 July 24, 2023 appellant filed a timely appeal from a March 7, 2023 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 March 7, 2023 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

ISSUE

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

medical benefits, effective March 7, 2023, pursuant to 5 U.S.C. § 8123(d), due to his failure to 

attend a scheduled medical examination.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.

3

 The facts and 

circumstances of the case as set forth in the Board’s prior decision and order are incorporated 

herein by reference. The relevant facts are as follows.

On December 30, 1991 appellant, then a 47-year-old temporary survey technician, filed a 

notice of traumatic injury (Form CA-1) alleging that on December 13, 1991 he injured his back 

when he twisted to reach out for an object while in the performance of duty. OWCP accepted the 

claim for lumbar strain, a herniated disc at L4-5, and permanent aggravation of underlying 

degenerative disc disease. Appellant stopped work and returned to modified duties on 

July 20, 1992. He continued to work modified duties until his employment was terminated on 

January 9, 1993,due to a lack of funds. Subsequently, appellant did not return to work. The record 

reflects appellant’s receipt of wage-loss compensation on the periodic rolls as of June 16, 2002. 

OWCP last received medical evidence from appellant’s treating physician in 2015. 

By letter dated September 8, 2022, OWCP notified appellant that he was being referred for 

a second opinion examination on October 7, 2022, with Dr. James R. Schwartz, a general surgeon, 

to assess the extent of his accepted employment injury, residuals of the accepted injury, and 

treatment recommendations. It advised him to confirm the time of the appointment and directions. 

OWCP also advised appellant of his responsibility to attend the appointment and that, if he failed 

to do so, his compensation benefits could be suspended in accordance with 5 U.S.C. § 8123(d). 

Further, it advised appellant that if he was unavoidably prevented from keeping his appointment,

he should call OWCP and his request to reschedule would be reviewed. Only legitimate, 

documented emergencies would be deemed adequate grounds for not keeping the appointment. 

In a letter dated September 26, 2022, appellant notified OWCP that his accepted injury 

prevented him from attending the appointment in Medford, Oregon due to inability to sit for the 

length of time required to travel, pursuant to restrictions from a prior OWCP second opinion 

physician. He requested that the second opinion evaluation be scheduled with a provider closer to 

his location in Arcata, California. 

In a memorandum of telephone call (Form CA-110) with an OWCP claims examiner on 

October 5, 2022, appellant stated that he was able to travel for only 15 to 20 minutes at maximum 

to attend a medical appointment. The claims examiner advised him that OWCP would attempt to 

find a second opinion physician as close as possible, but that there were not many options close to 

appellant’s location. The claims examiner further notified appellant that the second opinion 

3 Docket No. 99-35 (issued July 14, 2000).
3

evaluation was necessary as his medical status had not been updated in over five years and that he 

would face sanctions if he did not cooperate with the scheduled medical examination.

On October 11, 2022 OWCP learned that appellant had not kept his scheduled appointment 

on October 7, 2022 with Dr. Schwartz. 

In an internal OWCP e-mail dated October 11, 2022, the same OWCP claims examiner 

noted that appellant was unwilling to drive four hours to attend the appointment with Dr. Schwartz 

due to back pain with prolonged sitting. The claims examiner requested that the second opinion 

examination be rescheduled, and transportation be provided so that appellant could stop along the 

way to stretch every 15 to 20 minutes. 

In an internal OWCP e-mail dated November 7, 2022, a medical case administrator 

informed OWCP’s claims examiner that she had called appellant to offer an appointment with

Dr. Schwartz on November 18, 2022, in Redding, California, but that appellant refused, stating 

that his back injury would prevent him from traveling to the appointment. The medical case 

administrator noted that there was no closer provider and that appellant had refused an extension 

of the date until December 2022. She further noted that the distance from appellant’s home to 

Redding, California was 138 miles and that OWCP had “just approved the travel request today.”

In a notice dated February 21, 2023, OWCP advised appellant that it proposed to suspend 

his wage-loss compensation and medical benefits as he failed to attend the medical examination 

scheduled for October 7, 2022. It noted that QTC Medical Services had attempted to reschedule 

an appointment on November 7, 2022, and offered transportation, but he had declined this new 

dated of November 7, 2022, as well as an extended date in December 2022. OWCP afforded 

appellant 14 days to respond in writing with an acceptable reason as to why he did not attend the 

scheduled examination with Dr. Schwartz. It advised that if good cause was not established, his

compensation benefits would be suspended pursuant to 5 U.S.C. § 8123(d) until he attended and 

fully cooperated with the examination. OWCP instructed appellant to contact it immediately if he 

intended to report to a rescheduled examination with Dr. Schwartz. It afforded appellant 14 days 

to respond. Appellant did not respond.

By decision dated March 7, 2023, OWCP suspended appellant’s wage-loss compensation 

and medical benefits, pursuant to 5 U.S.C. § 8123(d), effective on that date, finding that he failed 

to attend the scheduled medical examination with Dr. Schwartz on October 7, 2022, and had not 

provided written evidence justifying his failure to attend or cooperate with the examination. It 

noted that on October 3, 2022 it received his letter dated September 26, 2022 indicating that he 

could not drive to Medford, Oregon due to the length of time required to sit. On October 7, 2022 

QTC contacted appellant to reschedule the second opinion evaluation and offered transportation 

to Redding, California, which was within 138 miles of his residence, however, appellant verbally 

declined the new date of November 18, 2022 as well as an extended date in December 2022. 
4

LEGAL PRECEDENT

Section 8123(a) 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.4 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. 5 

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. 6 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 stops.7 OWCP’s procedures further 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.8 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)) until the date on which the claimant agrees to attend the 

examination.

ANALYSIS

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

medical benefits, effective March 7, 2023, pursuant to 5 U.S.C. § 8123(d), due to his failure to 

attend a scheduled medical examination.

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

for a second opinion examination on October 7, 2022 with Dr. Schwartz to assess the extent of his 

accepted injury, residuals of the accepted injury, and treatment recommendations. It informed him

of his obligations to attend and cooperate with the examinations. The notice clearly explained that 

appellant’s compensation benefits would be suspended for failure to report to or for obstruction of 

the examination. The notice further informed appellant that only legitimate, documented 

emergencies would be deemed adequate grounds for not keeping the appointment. The letter also 

contained the date, time, and location of his appointment. Appellant did not appear for the 

appointment.

In a letter dated September 26, 2022, appellant notified OWCP that his accepted injury 

prevented him from attending the appointment in Medford, Oregon due to inability to sit for the 

length of time required to travel, pursuant to prior restrictions from a prior OWCP second opinion 

4

5 U.S.C. § 8123(a).

5 R.L., Docket No. 20-0160 (issued October 30, 2020). See also 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).

6

20 C.F.R. § 10.320; 5 U.S.C. § 8123(a); id. at § 10.323; A.P., Docket No. 19-0328 (issued August 6, 2019); D.K., 

Docket No. 18-0217 (issued June 27, 2018).

7

5 U.S.C. § 8123(d); id. at § 10.323; A.P., id.; D.K., id.

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

2.810.13d (September 2010); R.L., supra note 4. 
5

physician. He requested that the second opinion evaluation be scheduled with a provider closer to 

his location in Arcata, California. In an internal OWCP e-mail dated October 11, 2022, the same 

OWCP claims examiner noted that appellant was unwilling to drive four hours to attend the 

appointment with Dr. Schwartz due to back pain with prolonged sitting. The claims examiner 

requested that the second opinion examination be rescheduled, and transportation be provided so 

that appellant could stop along the way to stretch every 15 to 20 minutes. Thereafter, on 

November 7, 2022, a medical case administrator informed OWCP that she had called appellant to 

offer an appointment with Dr. Schwartz, on November 18, 2022, in Redding, California, and 

approved the travel request, but that appellant refused, stating that his back injury would prevent 

him from traveling to the appointment. The medical case administrator noted that there was no 

closer provider and that appellant had refused an extension of the date until December 2022. In a 

letter dated February 21, 2023, OWCP provided appellant 14 days to submit a valid written reason 

for his failure to attend the scheduled medical appointment. No response was received. The Board 

has previously explained that distance alone is an insufficient reason to explain a failure to attend 

a medical evaluation. 

The Board thus finds that appellant has not established good cause for failing to appear for 

the scheduled examination on October 7, 2022. OWCP properly determined that he failed to attend 

a scheduled medical examination without good cause and suspended his wage-loss compensation 

and medical benefits, pursuant to 5 U.S.C. § 8123(d). 

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

medical benefits, effective March 7, 2023, pursuant to 5 U.S.C. § 8123(d), due to his failure to 

attend a scheduled medical examination.
6

ORDER

IT IS HEREBY ORDERED THAT the March 7, 2023 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 4, 2024

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