United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.F., Appellant

and

U.S. POSTAL SERVICE, MYRTLE BEACH 

POST OFFICE, Myrtle Beach, SC, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 23-0661

Issued: September 19, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 27, 2023 appellant filed a timely appeal from a September 28, 2022 merit 

decision and a December 2, 2022 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP).1

ISSUES

The issues are: (1) whether OWCP properly suspended appellant’s wage-loss 

compensation and medical benefits, pursuant to 5 U.S.C. § 8123(d), due to his failure to attend a 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from September 28, 2022, the date of OWCP’s decision, was 

March 27, 2023. Since using April3, 2023, the date the appeal was received by the Clerk of the Appellate Boards 

would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. 

Postal Service postmark is March 27, 2023, which renders the appeal timely filed relative to the September 28, 2022 

merit decision of OWCP. See 20 C.F.R. § 501.3(f)(1).
2

scheduled medical examination; and (2) whether OWCP properly denied appellant’s request for 

an oral hearing as untimely filed, pursuant to 5 U.S.C. § 8124(b).

FACTUAL HISTORY

On June 23, 2021 appellant, then a 56-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on January 26, 2021, he contracted COVID-19 while in the performance 

of duty. He alleged that after the acute illness had subsided, he was left with tinnitus, dizziness, 

hearing loss, brain fog, situational anxiety, and other symptoms. Appellant stopped work on 

June 2, 2021. On July 29, 2021 OWCP accepted his claim for COVID-19. 

On October 20, 2021 appellant filed a claim for compensation (Form CA-7) for disability 

from work for the period June 7 through September 27, 2021. 

By decision dated January 10, 2022, OWCP denied appellant’s claim for compensation 

disability from work for the period June 7 through September 27, 2021, finding that he had not 

submitted sufficient medical evidence to establish that he was disabled as a result of his accepted 

condition of COVID-19. 

On February 4, 2022 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

Following a preliminary review, by decision dated April 11, 2022, OWCP’s hearing 

representative set aside OWCP’s January 10, 2022 decision and remanded the case for further 

development. The hearing representative instructed OWCP to obtain a second opinion physician’s 

report on the issues of whether the acceptance of appellant’s claim should be expanded to include 

any additional work-related medical conditions causally related to his accepted COVID-19; and 

whether appellant was entitled to wage-loss compensation for any claimed period of disability 

from June 7 through September 24, 2021. 

On July 8, 2022 OWCP notified appellant that he was being referred for a second opinion 

examination on August 22, 2022 with Dr. Theodore Stamatakos, a Board-certified urologist, for 

further development of appellant’s claim. It advised him 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). 

On August 23, 2022 OWCP learned from its scheduling service that appellant had not kept 

his scheduled appointment on August 22, 2022 with Dr. Stamatakos.

By letter dated September 2, 2022, 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 August 22, 2022. It afforded him 14 days to respond in writing with an explanation 

as to why he did not attend the examination with Dr. Stamatakos. 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. Stamatakos.
3

A memorandum of telephone call (Form CA-110) indicated that on September 23, 2022 

appellant contacted OWCP and advised that he did not intend to attend any future second opinion 

examinations.

By decision dated September 28, 2022, OWCP suspended appellant’s wage-loss 

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

that he failed to attend the scheduled medical examination with Dr. Stamatakos and had not 

provided written evidence justifying his failure to attend or cooperate with the examination. 2 On 

November 9, 2022 appellant requested an oral hearing before a representative of OWCP’s Branch 

of Hearings and Review.

By decision dated December 2, 2022, OWCP denied appellant’s request for an oral 

hearing, finding that it was untimely filed. It informed him that his case had been considered in 

relation to the issues involved, and that the issues could equally well be addressed by requesting 

reconsideration and submitting evidence not previously considered establishing that he attended 

the medical examination scheduled and directed by OWCP. 

LEGAL PRECEDENT -- ISSUE 1

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.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 stops.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 until the date on which the claimant agrees to attend the examination.

2 Appellant informed OWCP of a new home address on October 19, 2022.

3

5 U.S.C. § 8123(a).

4 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).

5

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).

6

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

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

2.810.13d (September 2010); R.L., supra note 3. 
4

ANALYSIS -- ISSUE 1

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

medical benefits pursuant to 5 U.S.C. § 8123(d), due to his failure to attend a scheduled medical 

examination.

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

second opinion examination on August 22, 2022 with Dr. Stamatakosto further develop his claim

as to whether it should be expanded to include any additional work-related medical conditions 

causally related to his accepted COVID-19; and whether he was disabled from work during the 

period June 7 through September 24, 2021.

8

 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 

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

the appointment, nor did he attempt to reschedule the appointment prior to the designated time.

By letter dated September 2, 2022, OWCP provided appellant 14 days to submit a valid 

reason for his failure to attend the scheduled medical appointment. On September 23, 2022 

appellant informed OWCP that he did not intend to attend any future second opinion examinations.

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

the scheduled examination on August 22, 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. 

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.

LEGAL PRECEDENT -- ISSUE 2

Section 8124 of FECA provides that a claimant is entitled to a hearing before a

representative of OWCP’s Branch of Hearings and Review when a request is made 30 days after 

the issuance of an OWCP final decision.9

A hearing is a review by an OWCP hearing representative of a final adverse decision issued 

by an OWCP district office.10 Initially, the claimant can choose between two formats: an oral 

hearing or a review of the written record. In addition to the evidence of record, the claimant may 

8 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. See R.D.,Docket No. 20-1551 (issued 

November 8, 2021); James A. Gray, 54 ECAB 277 (2002). The July 8, 2022 letter was sent to appellant’s last known 

address, and is presumed to have been received by him absent any notice of nondelivery.

9

5 U.S.C. § 8124(b)(1).

10 20 C.F.R. § 10.616.
5

submit new evidence to the hearing representative.11 A request for either an oral hearing or a 

review of the written record must be sent, in writing, within 30 days of the date of the decision for 

which the hearing is sought.12 A claimant is not entitled to a hearing or a review of the written 

record if the request is not made within 30 days of the date of the decision. 13

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for an oral hearing as 

untimely filed, pursuant to 5 U.S.C. § 8124(b).

Appellant had 30 days, following OWCP’s September 28, 2022 merit decision, to request 

an oral hearing before a representative of OWCP’s Branch of Hearings and Review. As his request 

for an oral hearing was postmarked November 9, 2022, more than 30 days after OWCP’s 

September 28, 2022 decision, it was untimely filed. Appellant is, therefore, not entitled to an oral 

hearing as a matter of right.14

OWCP also has the discretionary power to grant an oral hearing or review of the written 

record even if the claimant is not entitled to a review as a matter of right. The Board finds that 

OWCP, in its December 2, 2022 decision, properly exercised its discretion. OWCP considered 

the matter and concluded that the issue could be equally well addressed through a reconsideration 

request and the submission of evidence to establish that he attended the medical examination 

scheduled and directed by OWCP. The Board has held that, as the only limitation on OWCP’s 

authority is reasonableness, abuse of discretion is generally shown through proof of manifest error, 

clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and

probable deduction from established facts.15

Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral 

hearing before an OWCP hearing representative as untimely filed, pursuant to 5 U.S.C. § 8124(b).

CONCLUSION

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

medical benefits, pursuant to 5 U.S.C. § 8123(d), due to his failure to attend a scheduled medical 

11 Id. at § 10.615.

12 Id. at § 10.616(a); T.C., Docket No. 20-0090 (issued February 13, 2020); M.H., Docket No. 19-1087 (issued 

October 17, 2019); B.V., Docket No. 18-1473 (issued April 23, 2019).

13 T.C., id.; K.L., Docket No. 19-0480 (issued August 23, 2019).

14 Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis 

of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 --Claims, Hearings 

and Reviews of the Written Record, Chapter 2.1601.4a (September 2020); see also G.S., Docket No. 18-0388 (issued 

July 19, 2018).

15 See T.G., Docket No. 19-0904 (issued November 25, 2019); Daniel J. Perea, 42 ECAB 214 (1990).
6

examination. The Board further finds that OWCP properly denied appellant’s request for an oral 

hearing as untimely filed, pursuant to 5 U.S.C. § 8124(b).

ORDER

IT IS HEREBY ORDERED THAT the September 28 and December 2, 2022 decisions 

of the Office of Workers’ Compensation Programs are affirmed.

Issued: September 19, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board