United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Pontiac, MI, Employer 

__________________________________________ 

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Docket No. 17-0670 

Issued: July 14, 2017 

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 3, 2017 appellant, through counsel, filed a timely appeal from a 

November 16, 2016 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 reduced appellant’s compensation to zero under 5 

U.S.C. § 8113(b) effective January 12, 2016 for failing to cooperate with the early stages of 

vocational rehabilitation. 

FACTUAL HISTORY 

On March 17, 2012 appellant, then a 48-year-old custodial laborer, filed a traumatic 

injury claim (Form CA-1) alleging that he sprained his upper back on March 16, 2012 in the 

performance of duty. He was moving a carrier case when the adjacent case flipped forward and 

fell on him. Appellant stopped work on March 16, 2012 and did not return. OWCP accepted the 

claim for a head contusion, lumbar strain, cervical strain, cervical radiculopathy, cervical disc 

displacement at C4-5, right shoulder sprain, and bilateral rotator cuff tears. On August 9, 2012 

appellant underwent an authorized right rotator cuff repair and subacromial decompression and 

superior labral debridement. OWCP paid compensation for total disability beginning 

May 1, 2012. 

In a report dated February 28, 2014, Dr. Emmanuel Obianwu, a Board-certified 

orthopedic surgeon and OWCP referral physician, reviewed the history of injury and the medical 

reports of record. He diagnosed cervical spondylosis with disc disease at multiple levels, 

particularly C4-5 and C5-6, cervical disc displacement at C4-5 with C5 bilateral radiculopathy, a 

right rotator cuff tear and type 1 superior labral tear following a repair, mild right shoulder 

adhesive capsulitis, a small left rotator cuff tear, and symptom magnification. Dr. Obianwu 

opined that appellant had continued objective findings of cervical disc displacement at C4-5, 

radiculopathy, and mild adhesive capsulitis of the right shoulder. He found that he could not 

return to his usual employment. In a work restriction capacity evaluation (OWCP-5c), 

Dr. Obianwu provided work restrictions of lifting, pushing, and pulling up to 10 pounds and no 

reaching over the shoulder, bending/stooping, climbing, or twisting. 

Based on Dr. Obianwu’s findings, on April 24, 2014 OWCP referred appellant for 

vocational rehabilitation. 

In a report dated September 26, 2014, Dr. Michael F. Haenick, an attending Boardcertified physiatrist, evaluated appellant for neck, shoulder, and back pain. He diagnosed an 

unsteady gait due to cervical myelopathy causally related to his employment injury. Dr. Haenick 

opined that appellant was totally disabled. 

OWCP closed vocational rehabilitation efforts on October 28, 2014 after finding a 

conflict in medical opinion between Dr. Haenick and Dr. Obianwu regarding the extent of his 

disability. It referred appellant to Dr. Donald Garver, a Board-certified orthopedic surgeon, for 

an impartial medical examination. 

Dr. Garver, in a December 17, 2014 report, discussed appellant’s work injury and the 

medical evidence of record, including the results of diagnostic studies. He advised that appellant 

was not “entirely cooperative” during the examination. Dr. Garver found no evidence of cervical 

myelopathy or shoulder problems. He indicated that it was difficult to determine whether 
3

appellant could return to his usual employment due to his lack of cooperation and symptom 

magnification. Dr. Garver recommended a sedentary position, noting that appellant told him that 

he intended to retire. He found that he could perform work mostly sitting and “doing some filing 

or light work.” In a work restriction evaluation dated December 29, 2014, Dr. Garver opined 

that appellant could work eight hours a day with no walking, standing, reaching, reaching above 

the shoulder, squatting, kneeling, or climbing. 

The employing establishment provided a notification of personnel action (SF-50) 

indicating that the Office of Personnel Management (OPM) had approved appellant’s application 

for disability retirement effective August 31, 2015. 

On November 30, 2015 OWCP referred appellant to a vocational rehabilitation 

counselor. In a December 9, 2015 rehabilitation action report, (OWCP-44) the vocational 

rehabilitation counselor advised that appellant had not responded to her certified letter 

scheduling a meeting and had not returned her telephone calls. 

By letter dated December 10, 2015, OWCP notified appellant that he had not responded 

to the vocational rehabilitation counselor’s attempts to contact him to schedule an initial meeting. 

It afforded him 30 days to make a good faith effort to participate with vocational rehabilitation or 

to submit additional evidence or argument substantiating that he was unable to participate. 

OWCP informed appellant that if he refused to cooperate without good cause his compensation 

would be reduced to zero. 

The vocational rehabilitation counselor, in a December 16, 2015 letter, informed 

appellant that she had scheduled a meeting for December 30, 2015 and that, if he did not appear 

she would have to report the noncompliance with vocational rehabilitation. 

Counsel, by letter dated December 16, 2015 and received on December 21, 2015, advised 

OWCP that appellant did not want to participate with vocational rehabilitation and requested an 

election form so that he could select retirement benefits in lieu of workers’ compensation 

benefits. 

In a December 17, 2015 election form received by OWCP on December 22, 2015, 

appellant elected retirement benefits from OPM effective December 31, 2015. OWCP 

terminated compensation effective that date. 

Appellant telephoned OWCP on December 28, 2015 and questioned why he had to meet 

the vocational rehabilitation counselor on December 30, 2015. OWCP informed him that he had 

to cooperate with vocational rehabilitation until the date of his election of OPM benefits. 

In a December 31, 2015 rehabilitation action report, the vocational rehabilitation 

counselor related that appellant initially agreed to meet on December 30, 2015, but then refused 

to attend the meeting as he was retiring on December 31, 2015. 

By decision dated January 12, 2016, OWCP reduced appellant’s wage-loss compensation 

to zero effective that date as he refused to cooperate with the preliminary stages of vocational 

rehabilitation. It noted that it had informed him that he had to cooperate with vocational 

rehabilitation until the date of his election. 
4

Counsel, on January 19, 2016, requested a telephone hearing with an OWCP hearing 

representative. At the hearing, held on September 13, 2016, counsel contended that the penalty 

was overly harsh for his failure to cooperate with vocational rehabilitation for one day prior to 

appellant’s retirement. He asserted that appellant believed that he had good cause for not 

cooperating as he was retiring. 

In a decision dated November 16, 2016, OWCP’s hearing representative affirmed the 

January 12, 2016 decision. She found that OWCP issued the warning letter prior to receiving 

appellant’s election of retirement benefits and that he had not cooperated. Thus OWCP properly 

reduced his compensation to zero under section 8113(b). 

LEGAL PRECEDENT 

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

employee to undergo vocational rehabilitation.3

 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 wage-earning capacity in the absence of the failure, 

until the individual in good faith complies with the direction of the Secretary.4

OWCP regulations, at 20 C.F.R. § 10.519, provide in pertinent part: 

“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, meetings with OWCP nurse, 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 

 3

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

4 Id. at § 8113(b); R.M., Docket No. 16-0011 (issued February 11, 2016). 
5

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

good faith to comply with the direction of OWCP.’”5

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

appear for the initial interview, counseling sessions, an 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.6

Regarding the election of OPM benefits during vocational rehabilitation, OWCP 

procedures provide: 

“A noncooperation sanction under 5 U.S.C. § 8113 may not be initiated once a 

claimant has officially elected OPM benefits. It may only be finalized following 

an OPM election if the warning letter was issued while the claimant was in receipt 

of FECA benefits. If a sanction is applied prior to receipt of the actual election, 

the election is at the reduced amount pursuant to the sanction. When a warning is 

issued before the claimant elects OPM benefits, and the claimant continues to be 

uncooperative up to the point of the election, it is appropriate to issue the final 

sanction under 5 U.S.C. § 8113, even if it is issued after the election is signed.”7

 

(Emphasis in the original). 

Section 8123(a) 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.8 The implementing regulations states 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.9

When 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.10

 5

 20 C.F.R. § 10.519; see R.H., 58 ECAB 654 (2007). 

6

 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). 

7 Id. at Vocational Rehabilitation Services, Chapter 2.813.18(c) (February 2011). 

8

 5 U.S.C. § 8123(a). 

9

 20 C.F.R. § 10.321. 

10 Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002). 
6

ANALYSIS 

The Board finds that OWCP properly reduced appellant’s wage-loss compensation to 

zero effective January 12, 2016 as he failed, without good cause, to participate in the early stages 

of vocational rehabilitation efforts. 

OWCP accepted that appellant sustained a head contusion, lumbar strain, cervical strain, 

cervical radiculopathy, cervical disc displacement at C4-5, right shoulder sprain, and bilateral 

rotator cuff tears as a result of a March 16, 2012 employment injury. It paid wage-loss 

compensation for total disability beginning May 1, 2012. 

OWCP initially referred appellant for vocational rehabilitation on April 24, 2014; 

however, it subsequently ceased rehabilitation efforts in October 2014 after finding a conflict 

existed between his physician, Dr. Haenick, and OWCP’s referral physician, Dr. Obianwu, 

regarding the extent of his work restrictions. It referred appellant to Dr. Garver for an impartial 

medical examination. On December 17, 2014 Dr. Garver related that it was difficult to evaluate 

the extent of his condition due to lack of cooperation and symptom magnification. He found 

however that appellant could perform sedentary work for eight hours per day. 

When a case is referred to an impartial medical examiner for the purpose of resolving a 

conflict, the opinion of such specialist, if sufficiently well rationalized and based on a prior 

factual and medical background, must be given special weight.11 The Board has reviewed 

Dr. Garver’s opinion and finds that it has reliability, probative value, and convincing quality 

with respect to his conclusions reached regarding appellant’s work ability. Dr. Garver’s opinion 

is rationalized and based on a proper medical and factual history, and thus entitled to the special 

weight of the evidence.12

Based on Dr. Garver’s findings, on November 30, 2015 OWCP referred appellant to a 

vocational rehabilitation counselor. The vocational rehabilitation counselor advised OWCP on 

December 9, 2015 that appellant had not responded to her certified letter or telephone calls. In a 

December 10, 2015 letter, OWCP informed appellant of the need to participate in vocational 

rehabilitation and of the consequences if he did not participate. It afforded him 30 days to 

participate in vocational rehabilitation efforts or to provide good cause for his failure to do so or 

have his compensation benefits reduced to zero. 

Appellant, through counsel, responded that he did not want to participate in vocational 

rehabilitation services as he wanted to elect retirement benefits from OPM. On December 16, 

2015 the vocational rehabilitation counselor scheduled a meeting with him for 

December 30, 2015. 

On December 22, 2015 OWCP received an election form signed by appellant on 

December 17, 2015 electing retirement benefits from OPM beginning December 31, 2015. 

Appellant telephoned OWCP on December 28, 2015 and asked whether he had to meet with the 

 11 Id; see also P.C., Docket No. 16-1226 (issued March 23, 2017). 

12 See L.C., Docket No. 13-2153 (issued May 19, 2014). 
7

vocational rehabilitation counselor on December 30, 2015 as he planned to retire the following 

day. OWCP informed him that he had to cooperate with vocational rehabilitation until the date 

of his election, but he did not attend the scheduled December 30, 2015 meeting with the 

vocational rehabilitation counselor. Appellant’s failure without good cause to meet with the 

vocational rehabilitation counselor for a preliminary meeting constitutes a failure to participate in 

the early, but necessary stages of the vocational rehabilitation effort.13 OWCP regulations 

provide that, in such a case, it cannot be determined what would have been the employee’s wageearning capacity had there been no failure to participate and it is assumed, absent evidence to the 

contrary, that the vocational rehabilitation effort would have resulted in a return to work with no 

loss of wage-earning capacity.14 Appellant did not submit evidence to refute such an assumption 

and thus OWCP properly reduced his compensation to zero due to his failure to cooperate with 

the early and necessary stages of vocational rehabilitation. 

Regarding appellant’s election of retirement benefits, OWCP procedures provide that if a 

warning letter was issued while he was receiving FECA benefits and prior to receipt of officially 

elected benefits from OPM, he must cooperate with vocational rehabilitation until the time of the 

election.15 If he does not, OWCP may reduce his compensation under section 8113 even if the 

decision is not issued until after the election.16 OWCP issued its warning letter to appellant on 

December 10, 2015 and did not receive his election of retirement benefits until December 22, 

2015; consequently, it properly issued its sanction determination. This reduction under section 

8113 can be utilized irrespective of the brief time period as demonstrated in this case. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP properly reduced appellant’s compensation to zero under 5 

U.S.C. § 8113(b) effective January 12, 2016 for failing to cooperate with the early stages of 

vocational rehabilitation. 

 13 See J.C., Docket No. 11-1148 (issued March 8, 2012). 

14 20 C.F.R. § 10.519(b); see also FECA (Federal) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation 

Services, Chapter 2.813.17 (February 2011). 

15 See supra note 7; see also L.O., Docket No. 13-1578 (issued January 9, 2014). 

16 Supra note 7. 
8

ORDER 

IT IS HEREBY ORDERED THAT the November 16, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: July 14, 2017 

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