United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer

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Docket No. 18-0490

Issued: October 24, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 8, 2018 appellant filed a timely appeal from a December 19, 2017 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 December 19, 2017 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, pursuant to 5 U.S.C. § 8123(d), due to her failure to attend a scheduled medical 

examination.

FACTUAL HISTORY

On September 27, 2016 appellant, then a 35-year-old city carrier assistant 2, filed a 

traumatic injury claim (Form CA-1) alleging that on September 26, 2016 she injured her lower 

back unloading totes from her vehicle while in the performance of duty. She stopped work on 

September 26, 2016. On January 6, 2017 OWCP accepted appellant’s claim for neck joint and 

ligament, cervical spine, and lumbar spine sprains. By decision dated January 18, 2017, it denied 

expansion of the acceptance of her claim to include the additional conditions of cervical, thoracic, 

and lumbar radiculopathy. Appellant received continuation of pay through November 10, 2016, 

and thereafter, OWCP paid her wage-loss compensation on the supplemental rolls. 

On June 16, 2017 appellant returned to work as a part-time (six hours/day), modified city 

carrier assistant. 

In a June 27, 2017 note, Dr. Marina Neystat, Board-certified in internal medicine and 

neurology, diagnosed cervical and lumbar sprains and advised that appellant was unable to work 

more than eight hours per day or to lift more than 15 pounds. 

On July 5, 2017 appellant accepted a full-time position as a modified city carrier assistant. 

In an August 1, 2017 follow-up report, Dr. Neystat continued to diagnose cervical and 

lumbar sprains and indicated that appellant remained partially disabled. He noted that she had 

returned to work in a modified-duty capacity. 

On September 25, 2017 OWCP notified appellant that she was being referred for an 

additional second opinion examination on November 8, 2017 with Dr. Mark Kramer, a Boardcertified orthopedic surgeon. It advised her that it should be contacted by telephone if this 

appointment needed to be rescheduled or if she was unable to attend as scheduled and they would 

review the request to reschedule her appointment. OWCP explained that only legitimate ,

documented emergencies would be considered a basis for not keeping the appointment. It also 

advised appellant of her responsibility to attend the appointment and that, if she failed to do so 

without an acceptable reason, her compensation benefits could be suspended in accordance with 

section 5 U.S.C. § 8123(d).

Appellant had another follow-up examination with Dr. Neystat on September 27, 2017. 

Her diagnosis and work status remained unchanged. 

On November 13, 2017 OWCP learned that appellant had not attended the November 8, 

2017 examination with Dr. Kramer, as scheduled.

In a letter dated November 14, 2017, OWCP proposed to suspend appellant’s wage-loss 

compensation and medical benefits as she failed to attend the medical examination scheduled for 
3

November 8, 2017. It afforded her 14 days to respond, in writing with supporting evidence, for 

her failure to attend the scheduled examination. OWCP advised that, if appellant did not show 

good cause, her FECA benefits would be suspended pursuant to 5 U.S.C. § 8123(d) until she 

attended and fully cooperated with the examination. Appellant was instructed to contact OWCP 

immediately if she intended to report to a rescheduled examination with Dr. Kramer. 

In a November 14, 2017 note, Dr. Neystat indicated that she saw appellant on that same 

date. She further indicated that appellant was currently under her medical care and supervision 

and was diagnosed with cervical and lumbar sprains.

By decision dated December 19, 2017, OWCP suspended appellant’s wage-loss 

compensation and medical benefits, effective December 20, 2017, finding that she failed to attend 

the medical examination scheduled for November 8, 2017 and had not provided written evidence 

justifying her failure to attend or cooperate with the examination. 

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. 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 it 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. Such agreement may be expressed in writing or by 

telephone (documented on Form CA-110). When the claimant actually reports for examination, 

 

3

5 U.S.C. § 8123(a).

4

See 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.

6

Supra note 3; id. at § 10.323; D.K., Docket No. 18-0217 (issued June 27, 2018).

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

2.810.13(d) (September 2010).
4

payment retroactive to the date on which the claimant agreed to attend the examination may be 

made.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), due to her failure to attend a scheduled medical 

examination.

On September 25, 2017 OWCP notified appellant of her rights and responsibilities with 

respect to the November 8, 2017 scheduled medical examination. The notice properly contained 

a warning that benefits may be suspended pursuant to section 8123(d) of FECA for failure to report 

for the scheduled examination. OWCP explained that the physician was selected to obtain 

additional expert medical opinion. It properly determined that it required an assessment of 

appellant’s continuing employment-related disability. The Board notes that OWCP also properly 

advised her by letter that she had an appointment with Dr. Kramer on November 8, 2017. 

However, appellant did not attend the scheduled medical examination.

On November 14, 2017 OWCP issued a notice of proposed suspension and afforded 

appellant a 14-day period within which to provide an explanation for her failure to attend the 

previously scheduled medical examination. It further explained that, if she failed to demonstrate 

good cause for her failure to attend the scheduled examination, her wage-loss compensation and 

medical benefits would be suspended until she attended and fully cooperated with the examination.

OWCP subsequently received additional medical evidence from Dr. Dr. Neystat, but 

appellant did not otherwise explain her failure to attend the November 8, 2017 scheduled 

examination with Dr. Kramer. Accordingly, the Board finds that appellant has not established

good cause for her failure to report to the scheduled appointment. The Board further finds that 

OWCP’s September 25 and November 14, 2017 notices advised her of her rights and 

responsibilities pursuant to 5 U.S.C. § 8123(d). Because appellant failed to attend the 

November 8, 2017 medical examination, and because she has not provided good cause for the 

failure to attend within 14 days of OWCP’s November 14, 2017 notice of proposed suspension, 

the Board finds that OWCP properly suspended her wage-loss compensation and medical 

benefits.9

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 her failure to attend a schedule medical 

examination. 

 

8

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

9

See M.T., supra note 4.
5

ORDER

IT IS HEREBY ORDERED THAT the December 19, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 24, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board