United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.W., Appellant 

and 

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

Columbus, OH, Employer 

__________________________________________ 

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Docket No. 16-0588 

Issued: August 8, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 8, 2016 appellant, through counsel, filed a timely appeal of a December 1, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction to consider the merits of this case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP properly reduced appellant’s compensation effective 

December 10, 2014 under 5 U.S.C. § 8113(b) for failing to cooperate with vocational 

rehabilitation efforts. 

On appeal counsel argues that the decision is contrary to fact and law.

FACTUAL HISTORY 

On July 11, 1997 appellant, then a 47-year-old general clerk, filed an occupational 

disease claim (Form CA-2) alleging that on July 24, 1996 she first became aware that her 

bilateral thumb arthritis had been aggravated by her employment duties. OWCP accepted the 

claim for aggravation of bilateral thumb arthritis and aggravation of bilateral wrist arthritis.3 It 

placed appellant on the periodic rolls for temporary total disability effective April 10, 2011.4 

On June 28, 2012 OWCP referred appellant to Dr. David K. Halley, a Board-certified 

orthopedic surgeon, for a second opinion evaluation as to whether appellant continued to have 

residuals from her accepted employment injuries and to determine her disability status. In a 

July 16, 2012 report, Dr. Halley opined that appellant no longer had any residuals or disability 

due to her accepted employment injuries and could return to work with no restrictions. He based 

this opinion on a review of the employment injury history, medical evidence, statement of 

accepted facts, and physical examination. Physical examination findings included 20 percent 

right hand pinch strength when compared with the left hand, equal grip strength for kilogram 

force, no sensory loss on light touch, no swelling of the thumbs, wrists, or fingers, no thenar 

atrophy, negative bilateral Phalen’s test, negative bilateral squeeze test, and negative bilateral 

Tinel’s sign. Dr. Halley opined that appellant’s complaints were subjective as there was no 

supporting objective evidence of any residuals from the accepted aggravation of arthritis. 

On August 30, 2012 OWCP received an April 24, 2012 attending physician’s report 

(Form CA-20) from Dr. Joseph A. Ottaviano, a treating Board-certified family medicine 

physician, indicating that appellant continued to have residuals and disability from her accepted 

employment injuries. Dr. Ottaviano reported that she had severe osteoarthritis in the triscaple 

and first carpometarsal joints which cause her to be disabled from performing repetitive work. 

He noted his disagreement with Dr. Halley’s opinion that appellant’s accepted conditions had 

resolved. 

Dr. Ottaviano, in September 6, 2012 and March 20, 2013 reports, noted appellant’s 

history of employment-related bilateral thumb and wrist arthritis. He noted that he concurred 

with the opinion of Dr. James H. Rutherford, a second opinion Board-certified orthopedic 

 3

 OWCP assigned File No. xxxxxx485. On October 16, 2015 it combined File Nos. xxxxxx728 and xxxxxx103 

with xxxxxx485 as the master File No. Under File No. xxxxxx103, OWCP accepted the claim for temporary 

aggravation of bilateral wrist arthritis which resolved effective May 10, 1994. It denied appellant’s claim for 

aggravation of bilateral wrist arthritis under File No. xxxxxx728. 

4

 In a December 29, 2010 letter, the employing establishment notified OWCP that no work was available for 

appellant within her restrictions due to the National Reassessment Process. 
3

surgeon, that her aggravation was permanent.5 Dr. Ottaviano indicated that he disagreed with 

Dr. Halley’s opinion that appellant no longer had any residuals or disability due to her accepted 

employment conditions. 

On February 28, 2013 OWCP referred appellant for participation in vocational 

rehabilitation services based on Dr. Halley’s opinion. By letter dated April 7, 2013, appellant 

was referred to Georgia Boggs, a rehabilitation counselor, for development of a rehabilitation 

program. OWCP determined that there was a conflict in the medical opinion evidence and 

closed vocational rehabilitation efforts until resolution of the conflict. Ms. Boggs closed 

appellant’s vocational rehabilitation file on April 17, 2013. 

On June 13, 2013 OWCP referred appellant to Dr. Ralph G. Rohner, Jr., a Board-certified 

orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Drs. Halley 

and Ottaviano on the issues of whether appellant continued to have residuals from her accepted 

employment conditions and her work capability. 

In a June 27, 2013 report, Dr. Rohner, based upon a review of the medical evidence, 

statement of accepted facts, and physical examination, noted accepted conditions of aggravation 

of bilateral carpometacarpal joint thumb arthritis and aggravation of bilateral wrist arthritis. He 

concluded that appellant continued to have residuals and disability from her accepted conditions. 

Dr. Rohner concurred with the restrictions set by Dr. Ottaviano, which included no repetitive 

motion use of her thumbs. 

On March 17, 2014 OWCP referred appellant for vocational rehabilitation services. It 

informed the vocational rehabilitation counselor, Gordon McNamee, that Dr. Rohner’s opinion 

represented the weight of medical evidence with respect to her ability to work. 

On a March 22, 2014 Rehabilitation Action Form (Form OWCP-44), Mr. McNamee 

provided details regarding appellant’s response to his telephone contact. He contacted appellant 

on March 17, 2014 by telephone, she stated that she would not talk to him as she did not know 

who he was. Appellant also requested to be called the following morning at 8:00 a.m., at that 

time she requested to be contacted only in written communication and not by the telephone. 

Mr. McNamee sent her a letter introducing himself on March 18, 2014 which was followed up 

by text messages on March 18, 2014 and telephone calls on March 20, 21, and 22, 2014. 

Messages were left on her answering machine on March 20, 21, and 22, 2014 as appellant did 

not answer his repeated telephone calls. Mr. McNamee noted that he informed appellant that if 

she did not respond by March 22, 2014 he would inform OWCP of her lack of cooperation and 

that her benefits would be affected. 

By letter dated March 27, 2014, an OWCP claims examiner advised appellant that section 

8113(b) of FECA provided that, if an individual, without good cause, fails to apply for and 

undergo vocational rehabilitation when so directed, and OWCP finds that in the absence of the 

failure the individual’s wage-earning capacity would probably have substantially increased, it 

may reduce prospectively the compensation based on what probably would have been the 

 5

 Dr. Rutherford, in a January 7, 1998 report, diagnosed bilateral thumb arthritis and aggravation of bilateral wrist 

arthritis. He opined that the aggravation by appellant’s repetitive work duties was permanent. 
4

individual’s wage-earning capacity had he not failed to apply for and undergo vocational 

rehabilitation. The claims examiner further noted: 

“Also, [s]ection 10.519 of Title 20 of the Code of Federal Regulations provide 

that if an individual without good cause fails or refuses to participate in the 

essential preparatory efforts as described above, OWCP will assume, in the 

absence of evidence to the contrary, that the vocational rehabilitation effort would 

have resulted in a return to work with no loss of wage-earning capacity, and 

compensation will be reduced accordingly. In effect, this will result in a 

reduction of compensation to zero.” 

In a May 16, 2014 letter addressed to Mr. McNamee, appellant summarized statements 

she believed that he made during a May 7, 2014 conversation. 

On a May 19, 2014 Form OWCP-44, Mr. McNamee reported that appellant had 

obstructed vocational rehabilitation by failing to appear at scheduled meetings and failing to 

carry out agreed actions. He reported that her May 16, 2014 letter requested all communication 

be written and was unresponsive to his telephone calls. Appellant did attend a scheduled 

vocational evaluation on May 12, 2014, which Mr. McNamee noted still required his review. 

Mr. McNamee reported that he sent her a letter dated May 19, 2014 informing her that her 

request for written communication was unacceptable and that they needed to meet to discuss 

vocational goals and select job titles to get her job search started. 

By letter dated May 21, 2014, OWCP directed appellant to make a good faith effort to 

participate in the rehabilitation effort within 30 days or, if she believed that she had good cause 

for not participating in the effort, to provide reasons and supporting evidence of such good cause 

within 30 days. It indicated that if these instructions were not followed within 30 days action 

would be taken to reduce her compensation. 

On a June 11, 2014 Form OWCP-44, Mr. McNamee reported that appellant had 

obstructed vocational rehabilitation by failing to appear at scheduled meetings and failing to 

carry out agreed actions. He reported a meeting was scheduled for June 12, 2014, which she 

rescheduled to June 17, 2014. 

Mr. McNamee, in a July 14, 2014 Form OWCP-44, reported that appellant had 

obstructed vocational rehabilitation by failing to appear at scheduled meetings and failing to 

carry out agreed actions. He reported that she changed her mind regarding two selected job titles 

which had been verbally agreed upon and she refused to sign her vocational rehabilitation plan. 

By letter dated July 15, 2014, OWCP again directed appellant to make a good faith effort 

to participate in the rehabilitation effort within 30 days or, if she believed that she had good 

cause for not participating in the effort, to provide reasons and supporting evidence of such good 

cause within 30 days. It indicated that if these instructions were not followed within 30 days 

action would be taken to reduce her compensation. 

In an August 7, 2014 letter, Mr. McNamee advised appellant that she was required to 

work with him to develop an employment plan, meet with him, and discuss goals and needs. 
5

Next, he noted that he left messages for her on August 6 and 7, 2014 asking her to call him and 

requesting that she call him. 

On August 14, 2014 appellant called and informed OWCP that she had returned to parttime work on August 12, 2014. 

On September 15, 2014 appellant filed a claim for wage-loss compensation for 

intermittent wage loss from August 12 to September 10, 2014. 

By letter dated October 8, 2014, OWCP noted that the employing establishment indicated 

that appellant had not returned to work at the employing establishment. It requested that she 

provide pay stubs from her new employing establishment to verify dates of employment and her 

earnings. 

Mr. McNamee, in an October 23, 2014 Form OWCP-44, reported that appellant had 

obstructed vocational rehabilitation by failing to appear at scheduled meetings and failing to 

carry out agreed actions. He noted that she has not replied by telephone or in writing to his 

request for confirmation of her employment. 

By letter dated October 24, 2014, OWCP again advised appellant of its determination that 

she had obstructed vocational rehabilitation efforts. It reiterated instructions from prior letters 

sent regarding her obstruction of mandatory vocational rehabilitation services. Appellant was 

again provided with 30 days to make a good effort to participate in vocational rehabilitation with 

Mr. McNamee. 

Subsequently, OWCP received a letter from appellant’s counsel stating that she had 

returned to two part-time jobs on August 12, 2014. In the October 24, 2014 letter, received by 

October 29, 2014, appellant detailed her employment and pay rates, with appropriate pay stubs, 

for HR Imaging Partners, Inc. and Delaware County Center YMCA. On October 30 and 

December 9, 2014 she submitted additional pay stubs to OWCP from HR Imaging Partners and 

the YMCA. 

By decision dated December 10, 2014, OWCP reduced appellant’s compensation to zero 

under 5 U.S.C. § 8113(b) as her failure to undergo essential preparatory rehabilitation efforts did 

not allow OWCP to determine what her wage-earning capacity would have been if she had 

undergone testing and rehabilitation. It further found that she had been advised by letter dated 

October 24, 2014 that she was to make a good faith effort to participate in vocational 

rehabilitation, but she did not respond to the letter. Therefore, appellant had not shown good 

cause for noncompliance. 

On December 16, 2014 appellant requested an oral hearing before an OWCP hearing 

representative, which her counsel changed to a request for a telephonic hearing by letter dated 

January 7, 2015. A telephonic hearing was held on September 16, 2015. Appellant testified that 

she returned to seasonal part-time work in July 2014 with HR Imaging Partners Inc. as a photo 

assistant and started working part time for the YMCA on September 6, 2014. 
6

Subsequent to the hearing appellant submitted evidence covering the period 1993 to 2007 

and the assignment to a different vocational rehabilitation counselor in 2013. She detailed the 

errors she believed were made in her case. 

By decision dated December 1, 2015, the hearing representative affirmed the 

December 10, 2014 decision. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.6

 Section 8113(b) of FECA provides that 

if an individual, without good cause, fails to apply for and undergo vocational rehabilitation 

when so directed under section 8104 of FECA, OWCP, 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 OWCP.7

Section 10.519 of OWCP’s regulations provides: 

“If an employee without good cause fails or refuses to apply for, undergo, 

participate in, or continue to participate in a vocational rehabilitation effort when 

so directed, OWCP will act as follows-- 

(b) Where a suitable job has not been identified, because the failure or 

refusal occurred in the early, but necessary stages of a vocational 

rehabilitation effort (that is, interviews, testing, counseling, functional 

capacity evaluations [(FCE)], and work evaluations) OWCP cannot 

determine what would have been the employee’s wage-earning capacity. 

(c) Under the circumstances identified in paragraph (b) of this section, in 

the absence of evidence to the contrary, OWCP will assume that the 

vocational rehabilitation effort would have resulted in a return to work 

with no loss of wage-earning capacity, and OWCP will reduce the 

employee’s monetary compensation accordingly (that is, to zero). This 

reduction will remain in effect until such time as the employee acts in 

good faith to comply with the direction of OWCP.”8 

OWCP procedures provide that specific instances of noncooperation during the early 

stages of vocational rehabilitation include a failure to appear for the initial interview, counseling 

sessions, an FCE, other interviews conducted by the rehabilitation counselor, vocational testing 

 6 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

7

 5 U.S.C. § 8113(b). 

8

 20 C.F.R. § 10.519. 
7

sessions and work evaluations, as well as lack of response or inappropriate response to directions 

in a testing session after several attempts at instruction.9

 

OWCP’s procedures provide that a case which has been referred for vocational 

rehabilitation can be closed if the injured worker has successfully returned to work or will return 

to work shortly without benefit of rehabilitation intervention; or if the injured worker is not able 

to work four hours per day and there is no possibility of improvement.10 

ANALYSIS 

OWCP accepted the claim for aggravation of bilateral thumb arthritis and aggravation of 

bilateral wrist arthritis. Appellant was properly referred to Dr. Rohner to resolve the conflict in 

the medical opinion evidence between Drs. Halley and Ottaviano on the issue of whether she 

continued to have residuals and disability due to her accepted conditions. On March 6, 2014 

OWCP referred appellant to vocational rehabilitation services based on Dr. Rohner’s impartial 

medical examination who opined that she continued to experience employment-related residuals 

and disability and could work with restrictions. By decision dated December 10, 2014, it 

reduced appellant’s compensation under 5 U.S.C. § 8113(b) to zero for failing to show good faith 

in participating with the early an necessary stages of vocational rehabilitation services as 

directed. In a December 1, 2015 decision, an OWCP hearing representative affirmed its 

December 10, 2014 decision adjusting appellant’s compensation effective October 19, 2014. 

The Board finds that OWCP improperly reduced appellant’s compensation effective 

December 10, 2014 as it did not consider that she had found employment. 

While the record does reflect that appellant was not entirely compliant with her 

vocational counselor’s efforts to initiate vocational rehabilitation, the statute does provide that 

she can claim good cause for failure to participate in vocational rehabilitation. The 

December 10, 2014 decision to reduce appellant’s compensation benefits found that she had not 

established good cause for not complying with vocational rehabilitation because she had not 

responded to OWCP’s October 24, 2014 letter. However, appellant did respond to the 

October 24, 2014 letter, by letter dated October 23, 2014, received by OWCP on October 29, 

2014 and with follow-up pay information received by OWCP on October 30, 2014 and 

December 9, 2014 indicating that she returned to work in two part-time jobs within her 

physician-imposed restrictions. OWCP did not evaluate or make findings as to whether this 

information constituted good cause. 

OWCP’s procedures state that once a claimant finds employment with the previous 

employer, or a new employing establishment, the vocational rehabilitation effort moves to 

“Employed” status.11 As noted above, OWCP’s procedures state that OWCP can close a case 

where there has been referral for vocational rehabilitation if the employee successfully finds 

 9

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

Chapter 2.813.17(b) (February 2011); see Sam S. Wright, 56 ECAB 358 (2005). 

10 Id. at Part 8 -- Referrals for Rehabilitation, Referral Outcome, Chapter 8.200.7(a) (November 2013). 

11 Supra note 8 at Chapter 2.813.11 (February 2011). 
8

work without rehabilitation assistance.12 OWCP’s procedures also provide that, if a question 

remains as to whether employment obtained by a claimant during the vocational rehabilitation 

process fairly and reasonably represents wage-earning capacity, OWCP can conference the issue 

with the claimant.13 On August 14, 2014 appellant called and advised OWCP that she had 

returned to part-time work with two employing establishments on August 12, 2014. She 

subsequently submitted evidence regarding her hourly pay rate and pay stubs for the two 

employers, HR Imaging Partners, Inc. and Delaware County Center YMCA. 

OWCP failed to follow its procedures once the appellant informed OWCP that she had 

returned to work and did not determine whether she had established good cause for failure to 

cooperate with vocational rehabilitation efforts. The Board finds that OWCP failed to meet its 

burden proof to reduce her monetary compensation to zero. 

CONCLUSION 

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

effective December 10, 2014 under 5 U.S.C. § 8113(b) for failing to cooperate with vocational 

rehabilitation efforts. 

 12 Supra note 9. 

13 Supra note 8, Vocational Rehabilitation Services, Chapter 2.813.14(d)(7) (February 2011). 
9

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 1, 2015 is reversed. 

Issued: August 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board