One agency asked that a statement be added to this section clarifying that not every difference in medical opinion results in a referee examination. The requested clarification is consistent with decisions of both the ECAB (Andrea Kay Roberts, Docket No. 95-1839 (October 22, 1997)) and federal courts that have addressed this point(McDougal-Saddler v. Herman, No.Civ.A. 97-1908 (E.D.Pa. December 24,1997), and Chaklos v. Reich, et al., No. Civ.A. 95-1763 (W.D.Pa. August 25, 1997)). OWCP agrees that clarifying this section would be useful and therefore a new paragraph (a) has been added. Also, the current text has been relettered paragraph (b), and the title of this section has been slightly revised to more accurately reflect its subject matter.

Sec. 10.321 What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?

(a) If one medical opinion holds more probative value, OWCP will base its determination of entitlement on that medical conclusion (see Sec. 10.502). A difference in medical opinion sufficient to be considered a conflict occurs when two reports of virtually equal weight and rationale reach opposing conclusions (see James P. Roberts, 31 ECAB 1010 (1980)).

(b) If a conflict exists between the medical opinion of the employee's physician and the medical opinion of either a second opinion physician or an OWCP medical adviser or consultant, OWCP shall appoint a third physician to make an examination (see Sec. 10.502). This is called a referee examination. OWCP will select a physician who is qualified in the appropriate specialty and who has had no prior connection with the case. The employee is not entitled to have anyone present at the examination unless OWCP decides that exceptional circumstances exist. For example, where a hearing-impaired employee needs an interpreter, the presence of an interpreter would be allowed.

Also, a case file may be sent for referee medical review where there is no need for an actual examination, or where the employee is deceased.

One labor organization argued that the provision for sending a case file for referee evaluation without actual examination of the claimant is counter to the clear language of section 8123, and should therefore be removed. However, in Melvina Jackson, 38 ECAB 443 (1987), the ECAB noted that it had never held that an actual physical examination of a claimant was necessary to resolve disagreements using the medical referee provisions of section 8123(a). Therefore, the suggested deletion is not made.

Sec. 10.323 What are the penalties for failing to report for or obstructing a second opinion or referee examination?

If an employee refuses to submit to or in any way obstructs an examination required by OWCP, his or her right to compensation under the FECA is suspended until such refusal or obstruction stops.

The action of the employee's representative is considered to be the action of the employee for purposes of this section. The employee will forfeit compensation otherwise paid or payable under the FECA for the period of the refusal or obstruction, and any compensation already paid for that period will be declared an overpayment and will be subject to recovery pursuant to 5 U.S.C. 8129.