United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Rainier, OR, Employer

__________________________________________

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Docket No. 16-1590

Issued: January 17, 2018

Appearances: Case Submitted on the Record

Frankie L. Sanders, for the appellant

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 1, 2016 appellant, through his representative, filed a timely appeal from a 

June 9, 2016 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 the claim.2

ISSUE

The issue is whether OWCP properly reduced appellant’s compensation under 5 U.S.C. 

§ 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with vocational rehabilitation efforts.

 

1 5 U.S.C. § 8101 et seq.

2 The record on appeal includes evidence received after OWCP issued its June 9, 2016 decision. The Board’s 

review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. 

20 C.F.R. § 501.2(c)(1). Therefore, evidence not before OWCP at the time of the June 9, 2016 decision cannot be 

considered by the Board for the first time on appeal. Id. 
2

FACTUAL HISTORY

On May 17, 2004 appellant, then a 49-year-old rural letter carrier, filed an occupational 

disease claim (Form CA-2) for carpal tunnel syndrome, which she attributed to her employment 

duties. She indicated that she first became aware of her employment-related condition on 

February 10, 2004. On August 17, 2004 OWCP accepted the claim for bilateral carpal tunnel 

syndrome.3 Appellant underwent a left carpal tunnel release on August 25, 2005, followed by a 

right carpal tunnel release on September 22, 2005.

4

 She received wage-loss compensation for 

temporary total disability beginning August 25, 2005, and OWCP placed her on the periodic 

compensation rolls effective November 26, 2006. For more than a decade, appellant continued 

to receive wage-loss compensation for temporary total disability. 

In a January 13, 2015 report, Dr. Eric S. Furie, a Board-certified orthopedic surgeon and 

OWCP referral physician, noted the history of injury as reported by appellant and noted his 

review of the diagnostic testing of record. He reported that the x-rays of the bilateral wrists 

revealed no fracture, dislocation or other deformity and indicated that the September 21, 2011 

electromyogram (EMG) revealed no F-reflex evidence of cervical radiculopathy bilaterally, no 

nerve conduction velocity evidence of other neuropathy bilaterally, and only mild carpal tunnel 

syndrome bilaterally. Dr. Furie also set forth examination findings. He opined that appellant 

had complex regional pain syndrome secondary to right carpal tunnel syndrome. Objective 

findings included weakness on grip and decreased strength in abduction as well as flexion of her 

fingers. Dr. Furie noted that diagnostic studies were not helpful with complex regional pain 

syndrome except for sympathetic block, which appellant indicated relieved her pain. He

indicated that appellant was unable to physically perform her date-of-injury position as a rural 

letter carrier as she could not lift 70 pounds. Dr. Furie opined, however, that she was capable of 

performing sedentary or light duty with limitations of no lifting, pushing or pulling more than 10 

pounds with the right hand and no driving secondary to the narcotic medications she was taking. 

He advised that those restrictions could be alleviated if she was to get a sympathetic ganglion 

block. Dr. Furie further opined that she was a good candidate for vocational rehabilitation. In a

February 6, 2015 work capacity evaluation (Form OWCP-5c), he indicated that appellant had 

reached maximum medical improvement and her limitations were related to complex regional 

pain syndrome. 

On March 2, 2015 OWCP advised appellant that her claim was expanded to include right 

upper limb complex regional pain syndrome as an accepted condition.5

 

3 Under OWCP File No. xxxxxx979, appellant has an accepted occupational disease claim for right lateral 

epicondylitis, which arose on or about November 6, 2000. She also has an accepted claim for bilateral lateral 

epicondylitis under OWCP File No. xxxxxx943, with a June 14, 2002 date of injury. Appellant’s three upper 

extremity occupational disease claims have been combined, and OWCP File No. xxxxxx974, the file on appeal, has 

been designated the master file. She also has an accepted claim for lumbar and left gluteal conditions, which arose 

on or about March 9, 2002 (OWCP File No. xxxxxx938). This later occupational disease claim is not part of the 

current combined case record.

4 OWCP authorized both surgical procedures.

5 OWCP also accepted narcotic-induced constipation. On September 24, 2015 it additionally accepted chronic 

pain-induced insomnia. 
3

On March 9, 2015 OWCP advised appellant that her case had been referred for 

vocational rehabilitation services based on Dr. Furie’s January 13, 2015 examination results. It 

further advised her that she was expected to cooperate fully with the rehabilitation and 

reemployment effort. 

On June 12, 2015 appellant underwent a vocational evaluation. The vocational evaluator, 

Amy M. Meacham, identified 10 potential jobs as vocational alternatives. She indicated that 

those jobs required skills which appellant would be able to learn with certificate level and/or onthe-job training of 30 days to a maximum of six months to become proficient in the necessary 

skills. 

On September 18, 2015 Lane Westcott, OWCP’s designated rehabilitation counselor,

indicated that the positions of receptionist and information clerk were the best employment 

options for appellant. She noted that those positions required computer skills in order for 

appellant to be a qualified candidate and to satisfactorily perform the tasks of current semiskilled clerical positions. Therefore, Ms. Westcott recommended, and OWCP approved a 

rehabilitation plan for a computer training course (MS Windows, Word and Excel). The period 

of training was from October 14, 2015 through January 30, 2016 and would take place through 

Goodwill and Ed2go/UGA. 

In a September 30, 2015 letter, OWCP informed appellant of the rehabilitation plan 

developed by Ms. Westcott for her return to work as a receptionist, Department of Labor, 

Dictionary of Occupational Titles (DOT) No. 237.367-038, and information clerk, DOT 

No. 237.367-022.

6

 It also noted that those job duties were within her medical limitations. 

Appellant was advised that she was expected to cooperate fully so that she may return to work in 

the specified job or one similar to it. She was informed that, if she failed to cooperate fully, 

OWCP would assume that the vocational services would have resulted in a wage-earning 

capacity and therefore may reduce her compensation in accordance with 20 C.F.R. § 10.519. 

In an October 16, 2015 report, Ms. Westcott indicated that she had left messages for 

appellant that she would receive 12 weeks of training as preparation for job goals, which will 

begin October 14, 2015 through January 30, 2016. She indicated that appellant left one message 

for her on October 6, 2015 indicating that she had received her calls, but that her husband had 

been in the hospital for heart problems and that she would call back as soon as she could. 

Ms. Westcott indicated that appellant sent her e-mails on October 11 and 12, 2015 indicating that 

she had been trying to catch up with telephone messages from friends and family concerning her 

husband’s hospitalization. Appellant indicated that she had to type one-handed and would like 

Dragon Voice activation system included in her training program. She also stated that she did 

not have cable or Internet service at home and had to go to the library. Appellant indicated that 

she expected OWCP to cover the cost for internet if she had to take on-line courses. She also 

expressed concern over OWCP expecting her to do jobs which would exacerbate her injuries and 

expressed much skepticism over OWCP. Appellant noted that she had a back injury and wanted 

to know if the selected positions would impact her back issues. 

 

6 The labor market studies for both jobs listed the physical demands as sedentary -- less than 10 pounds 

occasionally. 
4

Ms. Westcott indicated that she called appellant on October 15, 2015 to talk about 

training and setting her up for classes, but her call was not returned. She noted that appellant had 

sent e-mails indicating additional limitations that she did not believe would allow appellant to 

physically manage a job without worsening her symptoms. 

In an October 19, 2015 letter, OWCP noted appellant’s reason for not undergoing the 

approved training as stated to her rehabilitation counselor. Appellant was advised of the 

provisions of section 8113(b) of FECA and was instructed to contact OWCP or her rehabilitation 

specialist within 30 days to make necessary arrangements to enter into the approved training 

programs or to provide reasons for her refusal with any supporting evidence to OWCP. If, 

during the allotted period, she did not comply with the instruction to undergo the approved 

training program or failed to show good cause for not undergoing the training program, appellant 

was notified that the rehabilitation effort would be terminated and her compensation reduced to 

reflect her probable wage-earning capacity had she completed the training program. 

In a November 17, 2015 statement, appellant indicated that Ms. Westcott falsely advised 

OWCP that she had refused to participate in an OWCP-approved training program and that she 

was not returning her telephone calls. She provided a detailed account of her experience with

Ms. Westcott.

In a January 28, 2015 report, Dr. Kevin Sheahan, a Board-certified pain specialist, 

indicated that appellant had right upper extremity pain since carpal tunnel surgery but that she 

has not had physical therapy, stellate ganglion block or ketamine therapy for this. He indicated 

in his report that appellant had been out of work for several years due to work-related injuries. 

Treatment notes from Dr. Kamal Kabakibou, a Board-certified anesthesiologist, dated 

October 16 and 26, November 25 and 30, and December 4, 2015, and January 8, 2016 diagnosed

complex regional pain syndrome of the right upper limb. In his November 25, 2015 report,

Dr. Kabakibou indicated that appellant suffered from regional pain syndrome of the right upper 

extremity secondary to a work-related injury. He stated that her injury caused significant pain 

and disability and had not resolved. Dr. Kabakibou opined that appellant was unable to perform 

any type of work at this time. 

Treatment notes dated September 18, October 16, November 16, and December 21, 2015 

from Dr. Kevin A. Williams, an orthopedic surgeon, diagnosed chronic pain syndrome. 

Dr. Williams indicated that appellant’s complex regional pain syndrome was under control.

Evidence pertaining to appellant’s accepted condition of chronic pain-induced insomnia 

and her drug usage were received, along with an October 16, 2015 physical therapy note and 

chiropractic treatment notes dated October 29, 2015 and January 19, 2016. 

By decision dated January 25, 2016, OWCP finalized the proposed reduction of 

appellant’s compensation. It reduced her compensation effective February 7, 2016 based on her 

ability to earn wages as an information clerk, DOT # 237.367-022, at the rate of $534.80 per 

week.

On March 16, 2016 appellant requested reconsideration. She contended that she did not 

refuse to participate in the vocational rehabilitation program. Appellant indicated that she was in 
5

communication with Ms. Westcott, had returned her calls, and had attempted to meet each 

requirement. She also expressed her belief that the request for Dragon software was reasonable 

given her medical condition that she was only able to type with one hand. Appellant argued that

Dr. Kabakibou’s November 25, 2015 finding that she was incapable of working created a 

conflict in medical opinion with Dr. Furie’s findings, and thus, required referral to an impartial 

medical examiner. She indicated that she did not score well on several of the 11 critical 

vocational aptitudes and that eye-hand-foot coordination was not scored. Appellant further 

indicated that, based on her diagnoses of carpal tunnel syndrome and reflex sympathetic 

dystrophy, she was unable to perform the duties of an information clerk as the position required a 

great deal of computer skills. She also noted that OWCP was aware of her psychological 

condition(s), but had not yet referred her for a second opinion evaluation.

7

 

OWCP received several physical therapy notes from October 16, 2015 through June 2, 

2016 along with medical evidence.

Medical reports from Dr. Kabakibou dated November 25, 2015 through May 25, 2016 

were received. In his November 25, 2015 report, Dr. Kabakibou noted that appellant suffers 

from reflex sympathetic dystrophy of the right upper extremity secondary to a work-related 

injury. He indicated that the injury was not an aggravation of a preexisting condition and that 

appellant had significant pain as a result of the injury. Dr. Kabakibou opined that appellant was 

unable to perform any type of work at this time. 

In a March 31, 2015 report, Dr. Lyles indicated that appellant had been under his care 

since October 2008. He noted that she struggled with anxiety and depression related to chronic 

pain. Dr. Lyles stated that appellant had not worked since 2004 due to chronic pain. 

In a March 31, 2016 report, Dr. Zouheir Shama, a general surgeon, indicated that 

appellant was seen for follow-up regarding bilateral wrist pain. Examination findings were 

provided and Dr. Shama opined that, based on appellant’s job duties, physical examination and 

history, she sustained an occupational injury.

By decision dated June 9, 2016, OWCP reviewed the merits of the claim and affirmed the 

January 25, 2016 decision as modified.8 It found that appellant failed to establish good cause for 

not participating in an OWCP-approved training program. The reasons appellant provided did 

not establish good cause for her failure to participate in the on-line training and the medical 

evidence failed to establish that appellant was unable to participate in the on-line training. 

Therefore, OWCP properly reduced appellant’s wage-loss compensation pursuant to 5 U.S.C. 

§ 8113(b). 

 

7

In its August 6, 2015 letter, OWCP indicated that on July 17, 2015 Dr. Michael Lyles, a psychiatrist, diagnosed 

appellant with attention deficit hyperactivity disorder (ADHD). It indicated that appellant would be referred for a 

second opinion evaluation to determine whether there was a causal relationship between her preexisting ADHD and 

the February 10, 2004 work injury.

8 OWCP previously cited 5 U.S.C. §§ 8106 and 8115 as authority for the reduction of wage-loss compensation. 

On reconsideration, the senior claims examiner noted that neither statutory provision applied to the current situation.
6

LEGAL PRECEDENT

FECA provides that the Secretary of Labor may direct a permanently disabled individual 

whose disability is compensable to undergo vocational rehabilitation.9 If an individual, without 

good cause, fails to apply for and undergo vocational rehabilitation when so directed, 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.10 The reduction of compensation remains in effect until 

the individual in good faith complies with OWCP’s directive.11

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: 

“(a) 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 the 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.”

12

An employee may fail to cooperate with vocational rehabilitation efforts in various ways. 

General examples of noncooperation include lack of response to letters or telephone calls from 

OWCP’s rehabilitation specialist and/or rehabilitation counselor (RC); failure to show up for 

appointments, interviews, or testing (e.g., vocational testing, functional capacity evaluation) 

arranged by the RC; and failure to attend an approved training program.13 Specific examples of 

noncooperation during the training phase of vocational rehabilitation include: failure to attend 

classes; failure to apply appropriate effort to succeed in such classes; failure to maintain a “C”

average; and failure to undergo training after a training program has been approved.14

 

9 5 U.S.C. § 8104(a).

10 Id. at § 8113(b).

11 Id.

12 20 C.F.R. § 10.519(a).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.17 

(February 2011).

14 Id. at Chapter 2.813.17c.
7

If the employee refuses or impedes rehabilitation training, the claims examiner (CE) shall 

notify the injured worker, in writing, of the provisions of 5 U.S.C. § 8113(b) and direct the 

injured worker to apply for, participate in, or resume participation in the training program.15 The 

letter should advise the injured worker to comply or provide a written explanation of his or her 

failure to comply within 30 days, or the provisions of 5 U.S.C. § 8113(b) will be applied and 

benefits will be reduced based on the jobs targeted in the approved training plan.16 This letter 

satisfies the requirement to provide a 30-day prereduction notice.17

ANALYSIS

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

effective February 7, 2016 as she failed, without good cause, to participate in prescribed 

vocational rehabilitation efforts. OWCP accepted the current occupational disease claim for 

bilateral carpal tunnel syndrome, complex regional pain syndrome reflex sympathetic dystrophy

(RSD), narcotic-induced constipation, and chronic pain-induced insomnia. Appellant had been 

receiving wage-loss compensation for temporary total disability dating back to August 25, 2005, 

when she underwent OWCP-approved left wrist surgery. 

In a January 13, 2015 report, Dr. Furie, an OWCP second opinion examiner, opined that 

appellant had complex regional pain syndrome secondary to the right carpal tunnel syndrome. 

He found, however, that appellant could work with restrictions of no lifting, pushing or pulling 

more than 10 pounds with the right hand for eight hours per day and no driving secondary to the 

narcotic medications. He indicated that her limitations were related to complex regional pain 

syndrome. 

The Board has reviewed Dr. Furie’s opinion and finds that it had reliability, probative 

value and convincing quality with respect to his conclusions reached regarding appellant’s work 

ability. Dr. Furie reviewed the statement of accepted facts and the medical record and noted his 

examination findings. He indicated that appellant was capable of working at sedentary or light 

duty with limitations because of her complex regional pain syndrome, which OWCP 

subsequently accepted. While appellant argued that the statement of accepted facts had changed 

a couple of months later, the Board notes that OWCP merely accepted additional conditions of 

constipation, other insomnia, and complex regional pain syndrome/reflex sympathetic dystrophy 

of the right upper limb, which Dr. Furie had accounted for when providing his opinion. Thus,

Dr. Furie’s opinion is rationalized and based on a proper medical and factual history, and 

represents the weight of the medical evidence.18

Based on Dr. Furie’s findings, OWCP referred appellant for vocational rehabilitation. 

The vocational rehabilitation counselor identified the position of receptionist and information 

clerk as the best employment options for appellant and indicated that appellant required a 

 

15 Id.

16 Id.

17 Id.

18 See C.C., Docket No. 16-0318 (issued May 2, 2016).
8

computer training course in order to be a qualified candidate to perform the tasks of the 

identified semi-skilled clerical positions. The counselor prepared a training plan, which OWCP 

authorized. 

By decision dated June 9, 2016, OWCP modified and affirmed its January 25, 2016 

decision reducing appellant’s compensation under section 8113(b) effective February 7, 2016 as 

she failed to establish good cause for not participating in an OWCP-approved training program. 

Appellant believed that she was cooperating with vocational rehabilitation. The issue, therefore, 

was whether she failed to continue participation in vocational rehabilitation without good cause.

The Board finds that the evidence of record does not establish that appellant’s failure to 

participate in the on-line training during the period October 14, 2015 through January 30, 2016 

was medically warranted. The physical therapy notes from October 16, 2015 through June 2, 

2016 do not support that appellant’s medical condition prevented her from participating in the 

training program in Microsoft Office Suite through Ed2go at UGA. 

The reports from Dr. Kabakibou from November 25, 2015 through May 25, 2016 

consisted of objective medical evidence from appellant’s office visits. In his medical report 

dated November 25, 2015, Dr. Kabakibou noted that appellant suffers from RSD of her right 

upper extremity secondary to a work-related injury. He stated that the injury was not an 

aggravation of a preexisting condition and that appellant had significant pain as a result of the 

injury. While Dr. Kabakibou opined that appellant was unable to perform any type of work at 

that time, he failed to provide a rationalized medical opinion, supported by specific findings, 

clearly showing that appellant was disabled from all activity or that her RSD prevented 

participation in the on-line training during the period October 14, 2015 through 

January 30, 2016.19

In his March 31, 2015 report, Dr. Lyles noted that appellant had been under psychiatric 

care since October 2008 and that she struggled with anxiety and depression related to chronic 

pain. He stated that she had not worked since 2004 due to chronic pain. Dr. Lyles, however, did 

not provide a medical opinion based on objective findings to support that appellant’s medical 

condition prevented her from participating in the on-line training during the period October 14, 

2015 through January 30, 2016. The Board has held that a physician must provide a rationalized 

opinion, supported by specific findings, clearly showing that a claimant was disabled from all 

activity or that his or her medical condition prevented participation in vocational rehabilitation 

efforts, including attending classes or taking tests.20

In his March 31, 2016 medical report, Dr. Shama noted that appellant was seen on that 

date for a follow-up visit regarding pain in bilateral wrists. While he opined that appellant had 

an occupational injury, Dr. Shama did not provide a medical opinion to support that appellant 

 

19 See D.A., Docket No. 11-0871 (issued January 27, 2012); see also C.P., Docket No. 15-0781 (issued 

April 5, 2016).

20 See id.
9

was unable to participate in the on-line training during the period October 14, 2015 through 

January 30, 2016.

21

The Board accordingly finds that OWCP properly found that appellant had, without good 

cause, failed to continue vocational rehabilitation.22 OWCP followed its procedures and advised 

her that, if she did not continue vocational rehabilitation, her compensation would be reduced. 

Pursuant to 5 U.S.C. § 8113(b) and the implementing regulations, OWCP may reduce appellant’s 

compensation based on the amount which would likely have been her wage-earning capacity had 

he or she undergone vocational rehabilitation.

The rehabilitation counselor identified the position of information clerk, DOT No. 

237.367.02, with wages of $534.80 per week. This represents the amount which would likely 

have been appellant’s wage-earning capacity had she undergone vocational rehabilitation. The 

job was a sedentary job with occasional lifting of 10 pounds, within the work restrictions of the 

second opinion physician Dr. Furie. The medical evidence does not establish that the position 

was medically unsuitable, and the deficiencies of the reports from the attending physicians are 

discussed above. The Board has held that the medical evidence of record must show that an 

accepted condition, or a preexisting condition, prohibited appellant from performing the selected 

position.23

The Board finds that OWCP properly reduced appellant’s compensation in this case. Had 

appellant completed the training program, she would have had the capacity to earn $534.80 per 

week as an information clerk. OWCP may reduce her compensation in accord with the Shadrick

decision to reflect her wage-earning capacity.24

On appeal appellant’s representative reiterated arguments made before OWCP. For the 

reasons noted above, the Board finds that appellant had, without good cause, failed to continue 

participation in vocational rehabilitation, and her compensation was properly reduced to reflect a 

wage-earning capacity as an information clerk. As noted above, the reduction in compensation 

continues until the individual in good faith complies with the direction of OWCP. Appellant 

may pursue the issue with OWCP.

CONCLUSION

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

effective February 7, 2016 for failing to cooperate with vocational rehabilitation.

 

21 Id.

22 See M.K., Docket No. 16-1676 (issued February 16, 2017).

23 See S.B., Docket No. 15-0106 (issued March 15, 2016).

24 See R.S., Docket No. 14-1484 (issued November 10, 2014); Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. 

§ 10.403(d).
10

ORDER

IT IS HEREBY ORDERED THAT the June 9, 2016 decision of the Office of Workers’

Compensation Programs is affirmed.

25

Issued: January 17, 2018

Washington, DC

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

25 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.