United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 15-1393 

Issued: September 26, 2016 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 8, 2015 appellant, through counsel, filed a timely appeal from an April 20, 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 over 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 adjusted appellant’s compensation under 5 U.S.C. 

§ 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in 

vocational rehabilitation efforts. 

FACTUAL HISTORY 

OWCP accepted that on March 8, 2010 appellant, then a 53-year-old chauffeur carrier, 

sustained aggravation of osteoarthritis of his left knee due to walking up steps at work. 

Appellant stopped work and received disability compensation beginning April 24, 2010.3

In notes dated September 12 and 25, 2012, Dr. Leon M. Bernstein, an attending Boardcertified orthopedic surgeon, found appellant totally disabled. He diagnosed osteoarthritis of the 

left knee. 

To determine appellant’s ability to return to work, OWCP referred appellant for a second 

opinion evaluation to Dr. Leon Sultan, a Board-certified orthopedic surgeon. In an October 22, 

2012 report, Dr. Sultan described appellant’s factual and medical history and reported findings 

on examination. He indicated that appellant’s left knee showed some restriction with crepitus 

and that McMurray test was positive on the left. Dr. Sultan diagnosed aggravation of left knee 

osteoarthritis and determined that appellant could engage in strict sedentary work activity 

performing desk work and answering telephones.4

In January 2013 appellant was referred for vocational rehabilitation in an effort to return 

him to work. He participated in initial vocational rehabilitation testing at the direction of his 

vocational rehabilitation counselor, Laura Nielson. 

Appellant’s vocational rehabilitation counselor provided reports in which she discussed 

appellant’s later nonparticipation in vocational rehabilitation efforts. The reports revealed that 

he failed to respond to voice mail messages left by his rehabilitation counselor on his telephone 

on January 29, 30, February 4, 11, and 22, 2013 and did not respond to letters dated February 15, 

and March 12, 2013 requesting a resumption of his participation. He also failed to appear for a 

meeting with his vocational rehabilitation counselor on February 25, 2013 despite having proper 

notice of the scheduled meeting. 

By letter dated March 1, 2013, OWCP advised appellant of its determination that he had 

failed to participate in vocational rehabilitation efforts. It informed him that an individual who 

refuses or impedes a vocational rehabilitation effort without good cause can have his 

compensation reduced based on what would have been his wage-earning capacity had the 

vocational rehabilitation process been successfully completed. OWCP directed appellant to 

make a good faith effort to participate in the rehabilitation effort within 30 days or, if he believed 

 3

 Appellant received disability on the periodic rolls beginning August 26, 2012. 

4

 Dr. Sultan completed a work restrictions form on October 22, 2012 indicating that appellant could perform strict 

sedentary work for eight hours per day but could not engage in lifting, pushing, or pulling. 
3

he had good cause for not participating in the effort, to provide reasons and supporting evidence 

of such good cause within 30 days. It stated that if these instructions were not followed within 

30 days action would be taken to reduce his compensation. 

Appellant’s vocational rehabilitation counselor continued to document instances through 

early May 2013 where appellant had failed to participate in vocational rehabilitation efforts, 

including not appearing for a meeting scheduled for May 9, 2013. In a May 10, 2013 report, she 

concluded that appellant had obstructed the efforts.5

 Appellant did not resume participation in 

vocational rehabilitation efforts. 

Appellant’s vocational rehabilitation counselor determined that, per appellant’s 

qualifications and the job classification in the Department of Labor, Dictionary of Occupational 

Titles (DOT), appellant could work in the position of receptionist (DOT No. 237.367-038). State 

labor market surveys revealed that the job was reasonably available in appellant’s commuting 

area. The position required occasional lifting of up to 10 pounds. 

In a May 10, 2013 decision, OWCP reduced appellant’s compensation to zero based on 

his refusal, without good cause, to participate in vocational rehabilitation efforts. It noted that 

appellant’s failure to undergo the essential preparatory effort of vocational testing prevented 

OWCP from determining appellant’s wage-earning capacity. 

On April 29, 2014 appellant requested reconsideration of the May 10, 2013 decision and 

submitted additional medical evidence. 

In a September 10, 2013 form report, Dr. Bernstein indicated that appellant was totally 

disabled from work. A work capacity evaluation form of the same date listed restrictions of no 

walking, standing, squatting, kneeling, or climbing. 

In a March 15, 2014 report, Dr. Bernstein provided support for appellant’s failure to 

cooperate with vocational rehabilitation. He claimed that “attending vocational rehabilitation 

would be difficult to impossible because of the chronic constant pain in his left knee.” 

Dr. Bernstein found that “the condition was very distracting to him and he would not be able to 

learn new activities or perform activities with any reasonable form of excellence.” He reiterated 

that appellant “certainly cannot do standing or walking.” 

In July 2014, the vocational rehabilitation counselor, confirmed that state labor market 

surveys revealed that the DOT-classified position of receptionist was still reasonably available in 

appellant’s commuting area. 

By decision dated July 23, 2014, OWCP affirmed the portion of its May 10, 2013 

decision finding that appellant had failed, without good cause, to participate in vocational 

rehabilitation efforts. However, it vacated the portion of its May 10, 2013 decision reducing his 

compensation to zero for failing to undergo the essential preparatory effort of vocational testing 

because appellant had, in fact, undergone such vocational testing. 

 5

 Appellant’s vocational rehabilitation counselor noted that appellant met briefly with her on March 18, 2013 but 

that he otherwise obstructed rehabilitation efforts. 
4

By decision dated September 18, 2014, OWCP found that appellant had failed, without 

good cause, to participate in vocational rehabilitation efforts as directed. Thus appellant’s 

compensation was reduced under 5 U.S.C. § 8113(b), effective March 1, 2014, to reflect his loss 

of wage-earning capacity in the position of receptionist, the position he would have been able to 

perform had he continued to participate in vocational rehabilitation efforts. 

OWCP reviewed the medical evidence in the record and found that Dr. Bernstein’s 

March 15, 2014 report had failed to provide a well-reasoned medical explanation with supporting 

findings as to the reason for the restrictions of “no standing and no walking.” It noted that 

appellant was not wheelchair-bound and, when he did meet with the rehabilitation counselor on 

March 18, 2013, he was walking with a cane. 

The weight of the medical opinion was found by OWCP to be with Dr. Sultan’s 

October 22, 2012 report. OWCP found the physical restrictions required of the receptionist 

position complied with the physical restrictions provided by Dr. Sultan. 

 OWCP issued a decision on December 17, 2014 which superseded its September 18, 

2014 decision, noting that additional pay rate information had been received from the employing 

establishment. The December 17, 2014 decision contained the same essential findings as the 

September 18, 2014 decision, but OWCP incorporated the new pay rate information into its 

wage-earning capacity calculation. OWCP found that appellant had failed, without good cause, 

to participate in vocational rehabilitation efforts as directed and that his compensation was 

reduced under 5 U.S.C. § 8113(b), effective March 1, 2014, to reflect his loss of wage-earning 

capacity in the position of receptionist, the position he would have been able to perform had he 

continued to participate in vocational rehabilitation efforts. 

 In a February 6, 2015 letter, appellant, through counsel, requested reconsideration of 

OWCP’s December 17, 2014 decision. Counsel argued that appellant had good cause not to 

participate in vocational rehabilitation efforts because his medical condition, particularly as 

characterized by Dr. Bernstein, physically prevented him from participating in such efforts. He 

also argued that OWCP had not adequately supported its determination that appellant should be 

rated in the constructed position of receptionist. 

 In an April 20, 2015 decision, OWCP denied modification of the July 23 and 

December 17, 2014 decisions reducing appellant’s compensation under 5 U.S.C. § 8113(b) for 

failing to participate in vocational rehabilitation efforts. It again noted that his compensation had 

been reduced under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity in the 

position of receptionist, the position he would have been able to perform had he continued to 

participate in vocational rehabilitation efforts. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened before it may terminate or modify compensation benefits.6

 Section 8113(b) of FECA 

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

 6 Betty F. Wade, 37 ECAB 556, 565 (1986). 
5

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 Title 20 of the Code of Federal Regulations details the actions OWCP 

will take when an employee without good cause fails or refuses to apply for, undergo, participate 

in, or continue to participate in vocational rehabilitation efforts when so directed. Section 

10.519(a) provides, in pertinent part: 

“Where a suitable job has been identified, OWCP will reduce the employee’s 

future monetary compensation based on the amount which would likely have been 

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

rehabilitation. OWCP will determine this amount in accordance with the job 

identified through the vocational rehabilitation planning process, which includes 

meetings with OWCP nurse and the employer. The reduction will remain in 

effect until such time as the employee acts in good faith to comply with the 

direction of OWCP.”8

ANALYSIS 

 OWCP accepted that appellant sustained work-related aggravation of osteoarthritis of his 

left knee. Appellant stopped work and received disability compensation beginning 

April 24, 2010. OWCP found that he had failed, without good cause, to participate in vocational 

rehabilitation efforts as directed. Appellant’s compensation was therefore reduced under 5 

U.S.C. § 8113(b), effective March 1, 2014, to reflect his loss of wage-earning capacity in the 

position of receptionist, the position it determined was suitable had he continued to participate in 

vocational rehabilitation efforts. 

 The Board finds that OWCP properly found that appellant failed to participate in good 

faith in vocational rehabilitation efforts pursuant to 5 U.S.C. § 8113(b). Appellant’s vocational 

rehabilitation counselor provided reports in which she discussed appellant’s repeated 

nonparticipation in these efforts. Appellant failed to respond to voice mail messages left on his 

telephone by the rehabilitation counselor on January 29, 30, February 4, 11, and 22, 2013 and did 

not respond to letters dated February 15, and March 12, 2013 requesting a resumption of his 

participation. He also failed to appear for a meeting with his vocational rehabilitation counselor 

on February 25, 2013 despite having proper notice of the scheduled meeting. Appellant’s 

vocational rehabilitation counselor continued to document instances through early-May 2013 

where appellant had failed to participate in vocational rehabilitation efforts, including not 

appearing for a meeting scheduled for May 9, 2013. In a May 10, 2013 report, she concluded 

that appellant had obstructed the efforts. 

 7

 5 U.S.C. § 8113(b). 

8

 20 C.F.R. § 10.519(a). 
6

 Before OWCP and on appeal, counsel argues that appellant had good cause not to 

participate in vocational rehabilitation efforts because his medical conditions physically 

prevented him from participating in such efforts. He notes that the reports of Dr. Bernstein 

showed that appellant was not physically capable of participating in vocational rehabilitation 

efforts. While Dr. Bernstein generally supported appellant’s claim to be unable to undergo 

vocational rehabilitation, he failed to tie his opinions to any specific medical condition that 

would preclude him from engaging in the vocational rehabilitation process. He failed to 

adequately explain how his opinion on disability was supported by objective findings. 

 A review of the record indicates that appellant was offered repeated opportunities to 

complete the agreed upon vocational rehabilitation plan. There is no evidence that appellant’s 

failure to fully participate in the rehabilitation program, particularly his failure to exercise a 

reasonable standard of cooperation in applying for positions which would return him to the 

workforce, was based on “good cause.”9

 For these reasons, OWCP properly found that appellant 

failed to participate in good faith vocational rehabilitation efforts per 5 U.S.C. § 8113(b). 

 As noted, OWCP reduced appellant’s compensation under 5 U.S.C. § 8113(b), effective 

March 1, 2014, to reflect his loss of wage-earning capacity in the position of receptionist, the 

position it determined he would have been able to perform had he continued to participate in 

vocational rehabilitation efforts.10 The Board has held that even when an employee fails to 

cooperate with vocational rehabilitation, as is the case here, the medical evidence must establish 

that appellant can perform the selected position.11 It has further found that a wage-earning 

capacity must be based on a reasonably current medical evaluation.12

 The Board finds that OWCP improperly reduced appellant’s compensation, under 

5 U.S.C. § 8113(b), to reflect his loss of wage-earning capacity in the position of receptionist 

(DOT No. 237.367-038). 

 OWCP procedures state that, unless the medical evidence is clear and unequivocal, the 

claims examiner should seek the advice of a physician regarding the suitability of the position.13 

The determination of appellant’s wage-earning capacity was based on the report of Dr. Sultan. 

The report from Dr. Sultan was originally obtained to determine appellant’s work capacity prior 

to the identification of a suitable position, he did not have a copy of the physical restrictions 

required for the selected position of receptionist, and he provided restrictions based on 

appellant’s physical capacity 26 months prior to the final decision. The Board finds that the 

medical evidence is not clear and unequivocal that appellant was physically capable of 

 9 See Michael D. Snay, 45 ECAB 403, 410-12 (1994). 

10 See supra note 7. Application of this portion of OWCP regulations was appropriate as appellant had 

participated in the early but necessary stages of the vocational rehabilitation efforts because he participated in 

vocational testing. 20 C.F.R. § 10.519(b), (c). 

11 S.B., Docket No. 15-1060, n.19 (issued March 15, 2016) 

12 John H. Jackson, 55 ECAB 465 (2004). 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity, Chapter 2.816.4(d) 

(June 2013). 
7

performing the receptionist position at the time of the December 17, 2014 OWCP decision. As 

such, the Board finds that OWCP has not met its burden of proof to determine that the position 

of receptionist reflected appellant’s wage-earning capacity.14 

CONCLUSION 

 The Board finds that OWCP properly found that appellant failed to participate in good 

faith in vocational rehabilitation efforts per 5 U.S.C. § 8113(b). However, the Board further 

finds that the case is not in posture for decision regarding adjustment of his compensation based 

on the constructed position of receptionist. 

ORDER 

IT IS HEREBY ORDERED THAT the April 20, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and remanded in part as to the adjustment 

of appellant’s compensation based on the position of receptionist. 

Issued: September 26, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 F.W., Docket No. 14-1772 (issued January 28, 2015).