United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Rockwall, TX, Employer 

__________________________________________ 

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Docket No. 14-372 

Issued: November 12, 2014 

Appearances: Case Submitted on the Record

Michael E. Woods, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 4, 2013 appellant, through her attorney, filed a timely appeal from a 

September 11, 2013 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. 

ISSUE 

The issue is whether OWCP properly reduced appellant’s compensation to zero from 

May 5 to June 3, 2013 for failing to cooperate with the early stages of vocational rehabilitation. 

On appeal appellant contends that OWCP did not properly follow its selection procedures 

when it chose the impartial medical examiner. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On April 23, 2004 appellant, then a 51-year-old rural letter carrier, filed an occupational 

disease claim alleging osteoarthritis due to repetitive motion. OWCP assigned the case claim 

number xxxxxx260, accepted for osteoarthritis of the left thumb and hand. It subsequently 

accepted an open wound of the left wrist with tendon involvement and mechanical complications 

from the implant of an internal orthopedic device and graft.2 In March 2005, appellant returned 

to modified-duty work under physical limitations performing light office duties. By decision 

dated December 21, 2005, OWCP reduced her monetary benefits to zero as her actual earnings 

fairly and reasonably represented her wage-earning capacity. 

In June 2005, appellant filed an occupational disease claim alleging that the repetitive 

motion of her job and left wrist and hand injury caused overuse of her right shoulder. OWCP 

assigned the case claim number xxxxxx470 and accepted right rotator cuff syndrome. 

On June 2, 2008 appellant came under treatment by Dr. Mike Shah, a specialist in pain 

management. He diagnosed osteoarthritis of the hand with history of an open wound of the left 

wrist tendon. Appellant was provided medication for pain and the physician completed a CA-17 

duty status report outlining appellant’s physical restrictions. Dr. Shah provided follow-up notes 

and annual duty status reports listing appellant’s limitations for work. 

As of November 24, 2010, the employing establishment could no longer accommodate 

appellant’s work restrictions under the National Reassessment Process (NRP). Accordingly, 

OWCP placed her on the periodic compensation rolls.3 

On January 3 and 10, 2012 Dr. Shah provided brief treatment notes on a prescription pad, 

prescribing medical refills and physical therapy from four to six weeks (two to three times a 

week). 

On January 3, 2012 appellant was referred by OWCP to Dr. Charles Mitchell, a Boardcertified orthopedic surgeon, together with a statement of accepted facts and the medical record. 

Dr. Mitchell was asked to examine appellant and address any ongoing residuals of her accepted 

conditions and her capacity for work. 

In a January 19, 2012 report, Dr. Mitchell set forth an accurate history of appellant’s 

employment and medical treatment. He reviewed the medical reports of record, including the 

diagnostic tests of the left hand and wrist and surgery for arthrodesis of the left thumb 

carpometacarpal joint. Dr. Mitchell also reviewed the medical records pertaining to appellant’s 

right shoulder treatment for rotator cuff syndrome. He addressed the accepted conditions and 

noted that appellant had not worked since 2010, as no modified work was available. On 

examination, there was a scar over the left thumb with an obvious deformity at the base of the 

thumb due to the previous surgery. Appellant had some general interosseous atrophy of the 

muscles of the left hand and some decreased sensation. Her overall grip was described as fair 

 2

 On July 18, 2007 OWCP granted appellant a schedule award for 14 percent impairment of her left arm. 

3

 In May 2011 OWCP combined the case files with number xxxxxx260 designated the master file. 
3

due to restricted motion of the joint. Phalen’s test was negative. Dr. Mitchell set forth findings 

of cervical spine and right shoulder range of motion, noting some tenderness and mild 

crepitation. He found that appellant was capable of work within specified physical restrictions 

based on her accepted conditions. Dr. Mitchell noted that the work restrictions were permanent 

in nature as there were no treatment options that would return her or assist in a full recovery from 

her injuries. He specified that appellant could not return to her usual occupation as a rural letter 

carrier, but was able to work up to six hours a day subject to a five-pound limitation on lifting, 

pushing and pulling up to two hours a day; twisting two hours a day and no reaching above 

shoulder level, climbing or operating a motor vehicle. Appellant could occasionally bend, squat 

and kneel. 

On February 27, 2012 OWCP asked Dr. Shah to review the report of Dr. Mitchell and 

state whether he agreed with the findings. If he disagreed, Dr. Shah was asked to provide a 

narrative opinion with specific reasons for any dissent. On February 28, 2012 he referred to his 

recent CA-17, noting that appellant could work eight hours a day with restrictions. Dr. Shah 

responded that appellant tolerated less restriction. 

On September 18, 2012 Dr. Shah advised that appellant could work four hours per day 

with additional restrictions. In a letter dated October 3, 2012, OWCP requested that he clarify 

his opinion with regard to appellant’s condition and the need for added restrictions, such as 

sitting, walking and standing restrictions, due to the accepted work-related condition. It noted 

that Dr. Shah had not submitted any current narrative report or diagnostic testing. Dr. Shah did 

not respond. 

OWCP determined that a conflict in medical opinion arose between Dr. Shah and 

Dr. Mitchell as to appellant’s capacity for work due to the accepted work-related conditions. By 

letter dated October 11, 2012, appellant referred to Dr. Bernie L. McCaskill, a Board-certified 

orthopedic surgeon, for an impartial medical evaluation. The record contains an October 11, 

2012 iFECS Report: MEO23 -- Appointment Schedule Notification and a screen shot indicating 

that Dr. McCaskill was selected as an impartial medical adviser on October 11, 2012.4

By decision dated November 5, 2012, OWCP denied appellant’s request to participate in 

the selection of the referee physician as there was no evidence that Dr. McCaskill was 

improperly selected or biased. 

In a November 20, 2012 report, Dr. McCaskill described appellant’s history of injury, 

medical treatment, and reviewed the medical records. On examination he noted a full active 

range of motion of the cervical spine and upper extremities, other than her left thumb. Appellant 

had tenderness over the left thumb metacarpal-carpal joint, with no obvious sign of swelling, 

atrophy, or other objective evidence of significant musculoskeletal injury in either upper 

extremity. There were no abnormal neurological findings, with normal and symmetrical 

 4

 On November 5, 2012 the Medical Management Specialist verified that there was one bypass performed on the 

selection of the referee physician because the appointment scheduler was not in the office when the appointment was 

being scheduled. An October 10, 2012 screen shot notes that Dr. Benzel MacMaster, a Board-certified orthopedic 

surgeon, was bypassed because the appointment scheduler was not in the office. The bypass time was not provided. 

The bypass reason was noted as code O. 
4

strength. Dr. McCaskill diagnosed left thumb pain postmetacarpal carpal fusion. He found that 

appellant was able to work eight hours a day with physical restrictions of no climbing and a 10-

pound lifting, pulling and pushing limitation. Dr. McCaskill opined that her restrictions were 

related to difficulties grasping with her left hand due to thumb dysfunction and pain. 

In 2012 OWCP referred appellant for vocational rehabilitation services. A vocational test 

performed on May 4, 2012 revealed that she was capable of working but had a limited formal 

education. As appellant did not have a General Equivalency Education Diploma (GED), she was 

directed to attend training classes to prepare her for the GED test. 

In a February 26, 2013 letter, the vocational rehabilitation counselor noted that a tutor 

had met with appellant only once in the prior week and had not met again due to her “schedule.” 

The tutor advised OWCP that she could work around appellant’s scheduled doctor appointments. 

The tutor also stated that her schedule was very flexible and that she could reschedule their 

current schedule with one day notice. The tutor stated that appellant had texted her the night 

before they were to meet and canceled the meeting. The vocational rehabilitation counselor 

advised appellant to study between classes with the tutor so she could be prepared for the GED 

examination in May. The vocational counselor stated that appellant had not gone to the library 

since January. If appellant did not want to sit for the GED examination or attend classes or 

tutoring sessions, her case status could be moved into Placement New Employer. 

By letter dated February 28, 2013, OWCP notified appellant that she had refused to 

participate in an OWCP-approved training program with the math tutor in order to help her 

obtain her GED, as recommended by the rehabilitation counselor. It advised her that, under 

section 8113(b), her compensation could be reduced prospectively based on what would have 

been her wage-earning capacity, had she not failed to undergo vocational rehabilitation. OWCP 

directed appellant to undergo the recommended training program; or, if she believed that she had 

sufficient justification to not participate, she should provide her reasons with supporting 

documentation. 

In a January 1, 2013 note, Dr. Shah advised that appellant was on narcotic medication for 

pain and restricted from driving until further notice. 

In a March 11, 2013 letter, appellant’s representative contended that appellant’s kidney 

disease and epilepsy prevented her from performing class work. In a February 13, 2013 letter, 

Dr. Les T. Sandknop, an osteopath, stated that appellant had hyperlipidemia, hypertension, 

hypothyroidism, chronic kidney disease, seizure disorder, anxiety and depression and listed her 

medications. He noted that she had her first seizure on November 4, 2009 and a second seizure 

on February 8, 2010. Dr. Sandknop stated that she also had fatigue and bilateral knee pain which 

affected her energy and mobility. He stated generally that appellant was having a great deal of 

difficulty attending coursework as recommended by the Department of Labor. 

Appellant submitted an August 28, 2012 report from Dr. Shah, who noted that appellant 

wanted to return to work at the employing establishment. On examination, Dr. Shah advised 

there was notable, severe atrophy of the left hand, especially of the palm with decreased 

carpometacarpal joint and thumb range of motion for opposition, abduction and adduction. 

There was also decreased extension for wrist range of motion, and decreased grip strength on the 
5

left. Dr. Shah noted that appellant had a seizure disorder, kidney disease and gout and, over the 

past 10 years, developed memory/cognition deficits. He assumed the deficits were a result of her 

seizures, but stated that he did not have her medical records to review or consider in prescribing 

any medications, as would have to be coordinated with her other doctors. Dr. Shah advised that 

she would most likely need intermittent therapy throughout her lifetime to maintain limited 

function of that hand. 

The rehabilitation counselor continued to document appellant’s reasons she could not 

participate with vocational rehabilitation efforts. She indicated that appellant complained that 

she was 60 years old, had dropped out of school, had medical problems, and that Dr. Shah 

restricted her from driving due to narcotic pain medication. Appellant acknowledged that the 

training hours were flexible but she would cancel the whole day whenever she had a medical 

appointment. The counselor noted that appellant was on jury duty on March 11, 2013 and did 

not attend training in April, claiming she had the flu. She noted that appellant was being driven 

to medical appointments. 

By decision dated April 11, 2013, OWCP reduced appellant’s compensation under 

section 8113(b) of FECA and 20 C.F.R. § 10.519. It found that she failed to participate as 

required with vocational rehabilitation efforts. Although appellant contended that she could not 

participate with vocational rehabilitation due to fatigue, bilateral knee problems, kidney disease 

and seizure disorder; the medical evidence of record did not establish her total disability due to 

her accepted conditions. Her compensation was reduced to zero as of May 5, 2013. 

On April 25, 2013 appellant requested an oral hearing before an OWCP representative, 

which was held on July 25, 2013. At the hearing, appellant’s representative presented arguments 

regarding appellant’s medical conditions and deficiencies in the reports of Dr. Mitchell and 

Dr. McCaskill. She submitted a November 4, 2011 report from Dr. Tulika Jain, a Board-certified 

cardiologist, who provided an assessment of leg edema, polycystic kidney disease and a history 

of congestive heart failure. 

In a May 16, 2013 letter, appellant’s representative advised that appellant was willing to 

participate in vocational rehabilitation and would make a good faith effort to attend her tutoring 

classes. OWCP subsequently referred her for vocational rehabilitation assistance. 

The vocational rehabilitation counselor continued to document meetings and discussions 

with appellant. The rehabilitation counselor stated that appellant did not return her calls on 

May 29 or 30, 2013 to arrange a meeting. Appellant later contacted and met with her on 

June 3, 2013. The vocational rehabilitation counselor identified jobs within appellant’s medical 

restrictions and education, which did not require a GED or high school diploma. The identified 

jobs were those of hostess, telemarketer, food cashier and some sales jobs. The vocational 

rehabilitation counselor advised that appellant continued to state that she was unable to do such 

work and provided a list of her reasons. 

In a June 10, 2013 letter, OWCP noted that, while appellant was cooperating with 

rehabilitation efforts, it could not reinstate her compensation benefits until the oral hearing was 

resolved or cancelled. It subsequently reinstated compensation for total disability effective 

June 3, 2013, finding that she was cooperating with vocational rehabilitation. 
6

In a June 19, 2013 letter, OWCP advised appellant that the plan was to return her to the 

GED classwork for prevocational training to assist her in qualifying for less skilled positions. It 

advised that the classwork was within her restrictions. Based on the rehabilitation counselor’s 

vocational evaluation and a survey of the local labor market, appellant had a wage-earning 

capacity of $306.00 per week and, at the end of the rehabilitation, whether or not she was 

employed, OWCP would reduce her compensation. OWCP noted, however, if she did not 

cooperate fully with the present plan, it would assume that vocational services would have 

resulted in a wage-earning capacity and, therefore, reduce her compensation in accordance with 

20 C.F.R. § 10.519. 

The vocational rehabilitation counselor further documented appellant’s cooperation with 

job placement and the math tutor. On June 19, 2013 appellant told the rehabilitation counselor 

that she did not believe she could get a GED within three months, that she was 61 years old, and 

falling all the time, haven fallen twice last week. The rehabilitation counselor stated that 

appellant had three grandsons living with her but they encountered trouble getting her up as she 

weighed 220 pounds. When asked if she wanted direct job placement or to try the math tutor, 

appellant responded that she did not care and that she was physically unable to do hotel desk or 

hostess work. 

In a July 1, 2013 letter, appellant’s representative contended that appellant had complied 

with the February 28, 2013 warning letter by attending classes with the rehabilitation counselor 

and tutor subsequent to that date. Appellant only recently became ill and could not continue the 

tutoring. Appellant’s representative requested that appellant’s compensation be reinstated 

retroactively to the date of the suspension. 

In a July 3, 2013 letter, a nurse practitioner advised that appellant was diagnosed with 

polycystic kidney disease on September 11, 2000 and was diagnosed with a seizure disorder on 

November 2, 2009. Since fatigue and stress could precipitate seizures, appellant was restricted 

in activities that brought on fatigue. The nurse practitioner indicated that due to the difficulty 

appellant had completing the requirements for her coursework fatigue and stress could result. 

On July 10, 2013 the rehabilitation counselor closed rehabilitation services. While 

appellant was scheduled to resume training on July 9, 2013; she had provided obstacles to 

attending, citing transportation issues as she no longer had a car, was dependent on her daughter, 

and told not to drive. Appellant also stated that she had conflicting medical appointments, had 

problems walking and standing and could not learn without an instructor. 

In an August 30, 2013 report, Dr. Jeff Fritz, a Board-certified anesthesiologist, noted that 

appellant had several medical conditions which were not work related, which included polycystic 

kidney disease, hypertension, gout, seizure and heart disorder. He noted that her gout was 

chronic for the past year and half. Appellant was treated with medicine for pain and not allowed 

to drive. Her underlying medical problems prevented the prescribing of conventional 

medications which would be used to treat her work-related injuries. Dr. Fritz advised that 

appellant was productive on limited duty and not sent home by his office or any other doctor 

because of her medical problems. While in vocational rehabilitation, she was not able to meet 

the academic requirements in math which led to emotional stress. Dr. Fritz noted that 

documentation dated July 3, 2013 from Dr. Sandknop’s office noted that seizure patients should 
7

avoid stress and fatigue. He opined that sound medical judgment dictated that appellant refrain 

from any activities that caused stress or fatigue and placed her at risk for seizure. 

By decision dated September 11, 2013, an OWCP hearing representative affirmed the 

April 11, 2013 decision which suspended appellant’s compensation from May 5 to June 3, 2013. 

She found was no evidence that appellant made a good faith effort to resume vocational 

rehabilitation efforts after she was advised of the consequences; there was no evidence in the 

medical records at the time she was referred for vocational rehabilitation that she had any 

nonwork-related medical restrictions that warranted clarification and there was no probative 

medical evidence that discussed work restrictions for her nonemployment-related medical 

conditions. 

LEGAL PRECEDENT 

Section 8123(a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.5

 The implementing regulations 

state that, 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, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination and 

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.6 In situations where there exist opposing medical reports of virtually 

equal weight and rationale and the case is referred to an impartial medical specialist for the 

purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized 

and based upon a proper factual background, must be given special weight.7

 

Section 8104(a) of FECA provides that OWCP may direct a permanently disabled 

employee to undergo vocational rehabilitation.8

 Section 8113(b) provides that, if an individual 

without good cause fails to apply for and undergo vocational rehabilitation when so directed 

under 8104, the Secretary, on review under section 8128 and after finding that in the absence of 

the failure the wage-earning capacity of the individual would probably have substantially 

increased, may reduce prospectively the monetary compensation of the individual in accordance 

with what would probably have been his or her wage-earning capacity in the absence of the 

failure, until the individual in good faith complies with the direction of the Secretary.9

 

Section 10.519 of OWCP regulations state that it may direct a permanently disabled 

employee to undergo vocational rehabilitation. Where a suitable job has been identified, OWCP 

will reduce the employee’s future monetary compensation based on the amount which would 

 5

 5 U.S.C. § 8123(a). 

6

 20 C.F.R. § 10.321. 

7 Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001). 

8

 5 U.S.C. § 8104(a); see J.E., 59 ECAB 606 (2008). 

9 Id. at § 8113(b); see Freta Branham, 57 ECAB 333 (2006). 
8

likely have been his or her wage-earning capacity had he or she undergone vocational 

rehabilitation. This reduction will remain in effect until such time as the employee acts in good 

faith to comply with the direction of OWCP.10 

OWCP procedures provide that specific instances of noncooperation include a failure to 

appear for the initial interview, counseling sessions, a functional capacity evaluation (FCE), 

other interviews conducted by the rehabilitation counselor, vocational testing sessions and work 

evaluations, as well as lack of response or inappropriate response to directions in a testing 

session after several attempts at instruction. They also include failure to begin or continue 

prevocational training such as English lessons for those who lack command of the language, or 

classes for a GED for those without a high school education.11 

ANALYSIS 

In 2004, OWCP accepted that appellant sustained osteoarthritis of the left thumb and 

hand, an open wound of left wrist with tendon involvement and mechanical complications of 

internal orthopedic devise, implant and graft. Under claim number xxxxxx470, it accepted right 

rotator cuff syndrome in 2005. The record reflects that appellant continued to work as a 

modified rural letter carrier until November 24, 2010 when her employer could no longer 

accommodate her work restrictions. She was placed on the periodic rolls in receipt of 

compensation for total disability. 

OWCP referred appellant for vocational rehabilitation services in March 2012. It 

subsequently found a conflict in medical opinion between Dr. Shah, a treating physician, and 

Dr. Mitchell, an OWCP referral physician, regarding appellant’s capacity to work. OWCP 

referred her to Dr. McCaskill for an impartial medical evaluation. It based her work restrictions 

for vocational rehabilitation on his November 20, 2012 report. As of May 5, 2013, OWCP 

subsequently reduced her monetary compensation to zero pursuant to 5 U.S.C. § 8113(b) and 20 

C.F.R. § 10.519 based on her noncooperation with vocational rehabilitation efforts. It 

subsequently reinstated appellant’s compensation effective June 3, 2013 based on her 

representation that she would cooperate with vocational rehabilitation. 

Initially, the Board notes that no conflict in medical opinion arose between Dr. Shah and 

Dr. Mitchell. Dr. Shah submitted brief treatment notes to the record and duty status reports 

listing appellant’s work restrictions. Dr. Mitchell provided a 12-page report to the record 

addressing the accepted condition, providing findings on physical examination, and review of the 

medical records. Dr. Shah was provided a copy of the report from Dr. Mitchell and asked for a 

narrative opinion should he disagree with the findings. He responded on February 28, 2012 with 

a brief reference to a CA-17 duty status report and noted that appellant tolerated less restrictions 

prior to being sent home by her employer. Dr. Shah provided a duty status report of 

September 18, 2012 that increased work restrictions to four hours. When asked by OWCP to 

provide a narrative report addressing appellant’s accepted conditions work restrictions, Dr. Shah 

 10 20 C.F.R. § 10.519. 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services, 

Chapter 2.813.11(a) (November 1996); see Sam S. Wright, 56 ECAB 358 (2005). 
9

did not respond. Dr. Shah offered insufficient medical reasoning pertaining to appellant’s 

residuals and work limitations.12 Thus, the medical record lacked sufficient evidence to warrant 

the application of section 8123 of FECA.13

For this reason, the Board finds that Dr. McCaskill, the Board-certified orthopedic 

surgeon, was not an impartial medical specialist. Rather, Dr. McCaskill was a second opinion 

referral physician.14 He examined appellant on November 20, 2012 and diagnosed left thumb 

pain postmetacarpal carpal fusion. Dr. McCaskill found that appellant was capable of working 

eight hours a day with restrictions of no climbing and limitations of 10 pounds on lifting, pulling, 

and pushing. He opined that her restrictions were related to difficulties grasping with her left 

hand because of thumb dysfunction and pain.15

The Board finds that appellant subsequently failed to cooperate with vocational 

rehabilitation efforts. The evidence from the vocational rehabilitation counselor documented 

appellant’s failure to cooperate with vocational rehabilitation efforts. On numerous occasions in 

February 2013, appellant failed to keep her appointments with a math tutor and cancelled 

meeting at the last minute citing illness or conflicting medical appointments. The evidence of 

record does not document her illness or treatment and the math tutor advised OWCP that her 

schedule was flexible and she would be able to change tutoring sessions with a day’s notice. 

Additionally, the evidence reflects that appellant did not show an effort to participate in the 

training. Appellant canceled training on short notice with excuses such as she had conflicting 

medical appointments, was sick, and she could not drive due to narcotic medication. While 

Dr. Shah indicated in a January 1, 2013 note that appellant was on narcotic medication for pain 

and restricted from driving, he did not address the medical condition for which such medication 

was prescribed. He did not state any opinion that residuals of the accepted conditions to her left 

hand and wrist or right shoulder disabled her from participating in vocational rehabilitation. 

Dr. Fritz and Dr. Sandknop submitted medical reports largely addressing appellant’s 

nonemployment-related medical conditions, including kidney disease, hypertension, gout and a 

seizure disorder. Dr. Fritz noted that, due to medication, appellant was not allowed to drive and 

stated that she should avoid stress and fatigue. Neither physician addressed how appellant’s 

accepted medical conditions precluded her participation in vocational rehabilitation. The Board 

notes that OWCP is not required to consider medical conditions that arise subsequent to the 

work-related injury or disease in determining an employee’s wage-earning capacity.16 In this 

case, the left hand and wrist condition was accepted in 2004 and the right shoulder condition in 

2005. Appellant returned and worked at modified duty until November, 2010. The physicians of 

 12 Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954) (medical 

conclusions unsupported by rationale are of little probative value). 

13 A conflict in medical opinion requires reasoned medical reports. 20 C.F.R. § 10.502 (1999). 

14 See N.W., Docket No. 09-1971 (issued July 26, 2010). For this reason, appellant’s contentions on appeal 

concerning the selection of Dr. McCaskill are moot. 

15 Of note is the fact that Dr. Shah, Dr. Mitchell and Dr. McCaskill did not find appellant totally disabled for work 

due to residuals of her accepted conditions. 

16 See Dorothy Jett, 52 ECAB 246 (2001). 
10

record did not document treatment for the nonaccepted medical conditions until November 2009, 

when Dr. Sandknop noted that she had her first seizure. The medical evidence does not reflect 

that the nonwork-related medical conditions preexisted her injuries of 2004 or 2005.17

Appellant was advised on February 28, 2013 that her refusal to participate in an OWCPapproved training program with a math tutor to help her obtain her GED constituted refusal to 

participate in the necessary early stages of vocational rehabilitation and could result in sanctions. 

Her GED training was rescheduled after she advised that she would cooperate with vocational 

rehabilitation. Appellant, however, presented excuses for failing to attend the training. These 

included being physically unable to attend the training due to nonwork-related medical 

conditions; transportation problems; conflicting medical appointments; her age; her perceived 

memory problems; and a limited education. However, the medical evidence of record does not 

clearly establish that she was unable to participate in vocational rehabilitation for the stated 

reasons. The evidence of record reflects that appellant did not make a good faith effort to resume 

vocational rehabilitation until June 3, 2013. 

The Board finds that appellant failed to cooperate in the early stages of vocational 

rehabilitation efforts and, therefore, OWCP properly reduced her compensation to zero for the 

period May 5 to June 3, 2012. The vocational rehabilitation counselor determined that appellant 

would benefit from obtaining her GED as this would improve her changes of obtaining 

employment. While appellant initially met with a math tutor and studied for the GED, she 

eventually failed to cooperate by failing to meet with the math tutor and providing numerous 

excuses as to why she could not obtain a GED or perform any of the positions which did not 

require a GED. OWCP procedure specifically indicates that participating in a recommended 

GED program is part of the early stages of vocational rehabilitation efforts.18 Although appellant 

participated in some initial vocational testing, her noncooperative actions, including failure to 

participate in GED classes and classes with the math tutor, prevented the vocational 

rehabilitation counselor from identifying appropriate employment opportunities which required a 

GED degree prior to closing her vocational rehabilitation file.19 Therefore, vocational 

rehabilitation efforts did not advance beyond the early stages.20 For these reasons, OWCP 

correctly reduced appellant’s compensation to zero for failing to cooperate with the early stages 

of vocational rehabilitation efforts. 

OWCP reinstated appellant’s compensation June 3, 2013. The effective date of 

reinstatement of the previous rate of compensation should be the date the claimant indicates in 

writing his or her intent to comply, as long as actual compliance is confirmed. Compliance is 

 17 The report of the nurse practitioner that fatigue could cause seizures is of no probative medical value as a nurse 

is not a physician as defined under FECA. The term physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined 

by State law. 5 U.S.C. § 8102(2). See L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined 

under FECA); Roy L. Humphrey, 57 ECAB 238 (2005). 

18 See supra note 9. 

19 See M.L., Docket No. 11-400 (issued October 13, 2011). 

20 Compare Jacquelyn V. Pearsall, 51 ECAB 209 (1999).
11

shown by actions such as undergoing interviews or testing.21 Although appellant’s 

representative indicated on May 16, 2013 that appellant would participate in vocational 

rehabilitation and would make a good faith effort to attend her tutoring classes, the rehabilitation 

counselor noted appellant did not return her calls on May 29 and 30, 2013 to arrange a meeting. 

It was only on June 3, 2013 that appellant contacted and met with the vocational rehabilitation 

counselor. The evidence supports that appellant made her first good faith effort to resume 

vocational rehabilitation on June 3, 2013, when she met with her rehabilitation counselor. 

Accordingly, OWCP properly reinstated appellant’s compensation June 3, 2013. 

CONCLUSION 

The Board finds that OWCP properly reduced appellant’s compensation benefits to zero 

from May 5 to June 3, 2013 due to her refusal to cooperate with vocational rehabilitation efforts 

pursuant to 5 U.S.C. § 8113(d). 

ORDER 

IT IS HEREBY ORDERED THAT the September 11, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 12, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 21 Id.; see L.L., Docket No. 10-1725 (issued May 10, 2011).