United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, West Haven, CT, Employer

__________________________________________

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Docket No. 18-1153

Issued: January 2, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 17, 2018 appellant, through counsel, filed a timely appeal from an April 5, 2018 

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, effective May 29, 

2016, under 5 U.S.C. § 8113(b) for failure, without good cause, to undergo vocational 

rehabilitation efforts, as directed.

FACTUAL HISTORY

On January 27, 2012 appellant, then a 46-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging a low back injury on January 26, 2012 due to lifting and adjusting a 

patient in bed while in the performance of duty. She stopped work that same day.

OWCP accepted appellant’s claim for sciatica, left-sided lumbar radiculopathy, lumbar 

spondylosis, and lumbago. It paid her disability compensation on the daily rolls beginning 

March 21, 2012 and on the periodic rolls beginning August 26, 2012.

On April 22, 2013 Dr. Peter G. Whang, an attending Board-certified orthopedic surgeon, 

performed OWCP-approved low back surgery, including anterior lumbar interbody fusion with 

instrumentation and bone graft substitute at L5-S1, and posterior fusion with instrumentation, bone 

graft substitute, and laminotomy at L5-S1.

Appellant participated in physical therapy sessions and continued to periodically visit

Dr. Whang for treatment of her back condition. In an October 1, 2015 report, Dr. Whang noted 

that her low back condition was responding well to conservative treatment without a need for 

steroid injections. He diagnosed lumbar strain and chronic low back pain secondary to L5-S1 disc 

degeneration (status post fusion) and indicated that appellant could return to work “under lightduty conditions at least temporarily.”

OWCP referred appellant for a second opinion examination to Dr. Balazs B. Somogyi, a 

Board-certified orthopedic surgeon. It requested that Dr. Somogyi provide an opinion on 

appellant’s employment-related residuals and ability to work. 

In an October 14, 2015 report, Dr. Somogyi detailed the findings of his physical 

examination he conducted on that date. Appellant did not report low back pain at the time of 

examination, but indicated that at times she had such pain at the 7/10 level. Dr. Somogyi advised 

that the examination revealed normal results upon bilateral straight leg raising and that appellant 

had no sensory abnormalities in her back or lower extremities. He diagnosed history of 

lumbosacral sprain/strain, degenerative arthritis of the lumbosacral spines, and status post anterior 

fusion at L5-S1, and he indicated that appellant could return to full-time work in accordance with 

his attached work restrictions. In an attached October 23, 2015 work capacity evaluation form 

(Form OWCP-5c), Dr. Somogyi indicated that appellant could work eight hours per day with 

restrictions of lifting up to 40 pounds for four hours per day, twisting for two hours per day, and 

bending/stooping for two hours per day.

In October 2015 OWCP referred appellant to an OWCP-sponsored vocational 

rehabilitation program designed to return her to work. It indicated that the opinion of Dr. Somogyi
3

showed that appellant was physically capable of performing work on a full-time basis subject to 

his restrictions.

Appellant’s vocational rehabilitation counselor initially met with appellant on 

November 17, 2015. He discussed appellant’s educational and vocational background, noting that 

she obtained a nursing assistant certificate from the University of New Haven and worked as a 

nursing assistant since the 1980s. Appellant reported using computers for her work with the 

employing establishment and advised that she was familiar with Microsoft Word and Excel

software. In December 2015, the counselor conducted a transferable work skills analysis and 

noted that appellant expressed dismay that the employing establishment was unable to identify a 

position for her at her former worksite. He began to evaluate potential positions outside the 

employing establishment which he felt were within her physical and vocational capabilities. 

On February 1, 2016 appellant’s vocational rehabilitation counselor conducted a state labor 

market survey and determined that appellant was capable of working on a full-time basis as an 

office assistant/office clerk, a position which was reasonably available in appellant’s commuting 

area with an average wage of $480.00 per week.3 According to the Department of Labor’s 

Dictionary of Occupational Titles (DOT), the position was sedentary in nature and required 

occasional lifting of up to 10 pounds. The position involved entering information into a computer, 

preparing correspondence on a computer, and performing other clerical duties such as 

photocopying and filing documents.

In a February 22, 2016 rehabilitation action report (Form OWCP-44), appellant’s 

vocational rehabilitation counselor indicated that on February 11, 2016 he texted appellant on her 

mobile telephone advising her to contact him in order to discuss a training program under 

consideration, but that appellant did not respond to the text message.

4

 On February 15, 2016 the 

counselor sent a letter to appellant’s address of record asking that she contact him as soon as 

possible. He noted in his February 22, 2016 report that appellant had not responded to his inquiries 

and that he was recommending placing appellant’s rehabilitation case in interrupted status until 

clarification was obtained regarding her noncommunication. 

In a February 23, 2016 letter, OWCP advised appellant of its determination that she had 

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

refuses or impedes a vocational rehabilitation effort without good cause after testing has been 

accomplished will have his or her compensation reduced based on what would have been his or 

her wage-earning capacity had the training been successfully completed. OWCP directed 

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

she believed she had good cause for not participating in the effort, to provide reasons and 

supporting evidence of such good cause within 30 days. It advised that if these instructions were 

not followed within 30 days action would be taken to reduce her compensation.

 

3 The counselor indicated that the results of the transferable skills analysis showed that appellant was capable of 

performing the position of office assistant/office clerk. However, he felt that additional training in a medical 

coder/assistant program might provide further incentive for employers to hire her.

4 The counselor initially telephoned appellant’s landline, but the voice mail was full and he was unable to leave a 

message.
4

Appellant telephoned her vocational rehabilitation counselor on February 23, 2016 and 

asserted that she did not receive his February 11, 2016 text message because she did not know how 

to receive and send text messages on her mobile telephone. She also asserted that she did not know 

how to delete messages from her landline voice mail. Appellant advised her counselor that she 

had not been feeling well with respect to her back and that she did not know whether she could

attend any vocational rehabilitation training program due to her condition. She continued to 

express her hope that she would be able to return to work for the employing establishment. The 

counselor explained to appellant that the opinion of Dr. Somogyi defined her work capabilities at 

present and advised her that she needed to take steps so she could receive telephone messages.5 In 

a March 1, 2016 vocational rehabilitation report, she indicated, “Given the [injured workers’] 

current complaints and stated limitation, it is difficult to move ahead with any vocational planning 

training or job placement.” He indicated that he was placing appellant’s case in interrupted status

as of March 17, 2016.

Appellant submitted a February 18, 2016 report from Dr. Whang who noted that appellant 

presented with complaints of back pain. Dr. Whang reported the findings of his examination on 

that date, diagnosed lumbar strain and L5-S1 disc degeneration (status post minimally invasion 

fusion), and indicated that appellant could return to light-duty work. Appellant also submitted 

June 8 and July 8, 2015 reports from Amy Morocco, an attending physical therapist, and a 

March 20, 2016 report from Rebecca J. Juliano, another attending physical therapist.6

In an April 4, 2016 vocational rehabilitation report, appellant’s vocational rehabilitation 

counselor indicated that he telephoned appellant on April 4, 2016 at which time she advised that 

she could not attend any vocational rehabilitation training program due to her back condition. 

Appellant noted that she assumed that her attending physician was providing reports about her 

back condition. The counselor again advised appellant that the opinion of Dr. Somogyi defined 

her work capabilities at present. In a May 3, 2016 report, he indicated that he was closing 

appellant’s vocational rehabilitation file because she had reported that she could not attend any 

vocational rehabilitation training program due to her back condition.

By decision dated May 5, 2016, OWCP reduced appellant’s compensation effective 

May 29, 2016 under 5 U.S.C. § 8113(b) to reflect her loss of wage-earning capacity had she 

continued to participate in vocational rehabilitation efforts. It determined that she had failed, 

without good cause, to undergo vocational rehabilitation as directed. With respect to her wageearning capacity, it further found that, if appellant had participated in good faith in vocational 

rehabilitation, she would have been able to perform the position of office assistant/office clerk and 

it reduced her compensation based on her ability to earn wages in this position.

On September 23, 2016 appellant requested reconsideration of OWCP’s May 5, 2016 

decision. OWCP submitted a June 2, 2016 report from Dr. Whang who reported the findings of 

 

5 Appellant indicated that an employing establishment official advised her that she could return to work for the 

employing establishment after her attending physician had “released” her to work, but the counselor advised her she 

should not wait for such a report to participate in vocational rehabilitation efforts because the opinion of Dr. Somogyi 

showed that she could currently work with restrictions.

6 The March 20, 2016 report of Ms. Juliano was countersigned by Dr. Adedayo Adetola, an attending Boardcertified internist.
5

his examination on that date. Dr. Whang advised that the examination showed some limitation of 

back motion, but that motor and sensory testing of the lower extremities was normal. He indicated 

that appellant was motivated to return to work in some capacity and that he would do what he 

could to facilitate the process. On July 18, 2016 Dr. Whang noted that appellant had worsening 

back pain complaints, but posited that it was possible for her to return to work “with certain 

limitations.” He reported examination findings similar to those obtained on June 2, 2016.7

In an August 10, 2016 report, Dr. Whang noted that the diagnostic testing of record showed 

that appellant had a solid fusion at L5-S1, but that she had recently been complaining of increased 

back and left lower extremity symptoms. He reported examination findings similar to those 

obtained on June 2 and July 18, 2016. Dr. Whang indicated, “With her recent exacerbation, the 

patient does not feel as if she would be able to return to work in any capacity at this point, so I will 

reevaluate her again with the hopes that we can at least get her cleared for light-duty work or some 

other type of work activity with restrictions.” In an August 10, 2016 letter, he noted, “[Appellant] 

was seen in my clinic on August 10, 2016. She is not cleared to return to work until September 12, 

2016, pending recheck.” On September 1, 2016 Dr. Whang indicated that he hoped to get 

appellant back to work at some point, at least in some capacity. On October 21, 2016 he noted 

that it would be difficult for appellant to return to work in her previous capacity at the employing 

establishment.8

By decision dated January 4, 2017, OWCP denied modification of its May 5, 2016 

decision. It found that OWCP had properly determined that appellant had failed, without good 

cause, to undergo vocational rehabilitation as directed, and that it had properly reduced her 

compensation based on her ability to earn wages in the position of office assistant/office clerk. 

OWCP noted that the medical reports submitted by appellant did not show that she could not 

participate in vocational rehabilitation efforts.

On December 11, 2017 appellant, through counsel, requested reconsideration of OWCP’s 

January 4, 2017 decision. She submitted a December 16, 2016 report from Dr. Whang who noted 

that appellant continued to complain of increased back and left lower extremity symptoms. 

Dr. Whang indicated that appellant should avoid any activities which exacerbated her symptoms. 

On February 1, 2017 he posited that it would be difficult for appellant to return to work in her 

previous capacity at the employing establishment. On March 8, April 26, June 7, September 22, 

2017, and January 19, 2018 reports, Dr. Whang indicated that he would not make any change in 

appellant’s work status.9 Appellant also submitted computerized tomography (CT) and magnetic 

 

7 Appellant submitted an April 3, 2012 report from Dr. Adetola who recommended that appellant use an 

interferential stimulator device for her back. 

8 Appellant also submitted a December 12, 2016 report of Gregory Kane, an attending physical therapist.

9

In his June 7, 2017 report, Dr. Whang noted, “[T]he patient states that she clearly would not be able to return to 

work at this time because of her pain, so I will make no changes to her work status, pending recheck after her 

injections.” In his January 19, 2018 report, he indicated that January 12, 2018 electromyogram (EMG) and nerve 

conduction velocity (NCV) testing of appellant’s left lower extremity showed no radiculopathy. The record contains 

a copy of the January 12, 2018 testing. In each of the examination reports submitted in connection with the 

December 11, 2017 reconsideration request, Dr. Whang provided examination findings which were similar to those 

contained in his previously submitted reports.
6

resonance imaging (MRI) scans of the lumbosacral and cervical spines, dated between 2014 and 

2017, which showed degenerative changes at multiple disc levels.

By decision dated April 5, 2018, OWCP denied modification of its January 4, 2017 

decision. It again indicated that the medical reports submitted by appellant did not show that she 

could not 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.10 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.11

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 a vocational rehabilitation effort 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. [It]

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.”

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ANALYSIS

The Board finds that OWCP properly reduced appellant’s compensation, effective May 29, 

2016, under 5 U.S.C. § 8113(b) for failure, without good cause, to undergo vocational 

rehabilitation efforts, as directed.

In October 2015, OWCP referred appellant for participation in an OWCP-sponsored 

vocational rehabilitation program designed to return her to work. In December 2015, appellant’s 

vocational rehabilitation counselor conducted a transferable work skills analysis to help determine 

what types of jobs appellant could perform. Beginning in early-February 2016, the counselor 

began to have difficulty in communicating with appellant through the established telephonic 

 

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

11 5 U.S.C. § 8113(b).

12 20 C.F.R. § 10.519(a).
7

channels. Although appellant contacted the counselor by telephone on February 23, 2016, she 

advised that she did not know whether she could participate in any vocational rehabilitation 

training program recommended by the counselor due to her back condition. On April 4, 2016 she 

explicitly advised the counselor that she could not attend any vocational rehabilitation training 

program due to her back condition.

After OWCP issued a February 23, 2016 letter requesting that appellant provide “good 

cause” for not participating in vocational rehabilitation efforts, appellant submitted medical 

evidence which she later suggested was sufficient to establish that she was physically incapable of 

participating in vocational rehabilitation efforts.13 The Board finds, however, that this medical 

evidence does not clearly show that appellant’s physical condition prevented her from participating 

in vocational rehabilitation efforts. For example, appellant submitted a February 18, 2016 report 

from Dr. Whang, an attending physician, who indicated that appellant could return to light-duty 

work. Moreover, on July 18, 2016 Dr. Whang posited that it was possible for appellant to return 

to work with restrictions. In an August 10, 2016 letter, he noted that appellant was not cleared to 

return to work until September 12, 2016. However, Dr. Whang did not provide any opinion that 

appellant’s physical condition prevented her from participating in vocational rehabilitation efforts. 

In later reports, dated between late-2016 and early-2018, he indicated that appellant could not 

return to her date-of-injury nursing assistant position for the employing establishment, but these 

reports do not contain any opinion on appellant’s ability to participate in vocational rehabilitation

efforts. Appellant failed to submit a rationalized medical report establishing that her physical 

condition prevented her from participating in her vocational rehabilitation program.14

For these reasons, the Board finds that there is no evidence that appellant’s failure to fully 

participate in vocational rehabilitation efforts, particularly in her failure to participate in any 

vocational rehabilitation training program designed to aid in her return to the workforce, was based 

on “good cause.”

15

The Board further finds that the reduction of appellant’s compensation effective May 29, 

2016 was properly based on her loss of wage-earning capacity had she continued to participate in 

vocational rehabilitation efforts, as shown by her ability to earn wages as an office assistant/office 

clerk. On February 1, 2016 appellant’s vocational rehabilitation counselor conducted a state labor 

market survey and determined that appellant was capable of working on a full-time basis as an 

office assistant/office clerk, a position which was reasonably available in appellant’s commuting 

 

13 Appellant did not provide any statement to OWCP in response to OWCP’s February 23, 2016 letter requesting 

that she provide “good cause” for not participating in vocational rehabilitation efforts. However, she suggested to her 

vocational rehabilitation counselor that the medical evidence of record showed that she was physically incapable of 

participating in vocational rehabilitation efforts.

14 See D.R., Docket No. 16-0528 (issued August 24, 2016) (finding that a report is of limited probative value on a 

given medical issue if it does not contain adequate medical rationale). Appellant submitted a March 20, 2016 report 

of Dr. Adetola, an attending physician, but this report does not contain any opinion on appellant’s ability to participate 

in vocational rehabilitation efforts. She also submitted reports of Ms. Morocco and Mr. Kane, attending physical 

therapists, which were dated between June 2015 and December 2016. However, these reports are of no probative 

value on the relevant issue of this case because the report of a physical therapist does not constitute probative medical 

evidence as a physical therapist is not a physician under FECA. See S.T., Docket No. 17-0913 (issued June 23, 2017).

15 See Michael D. Snay, 45 ECAB 403, 410-12 (1994).
8

area with an average wage of $480.00 per week. According to the Department of Labor’s 

Dictionary of Occupational Titles (DOT), the position was sedentary in nature and required 

occasional lifting of up to 10 pounds.16 

The Board notes that the medical evidence of record shows that appellant was physically 

capable of working as an office assistant/office clerk. The physical requirements were within the 

restrictions delineated in reports of Dr. Somogyi, an OWCP referral physician who provided the 

most detailed assessment in the case record of appellant’s ability to work.17 Moreover, the Board 

notes that OWCP properly relied on the expert opinion of appellant’s vocational rehabilitation 

counselor that appellant would have been vocationally capable of working as an office 

assistant/office clerk.18 

For these reasons, OWCP properly reduced appellant’s compensation, effective May 29, 

2016, under 5 U.S.C. § 8113(b) to reflect her loss of wage-earning capacity had she continued to 

participate in vocational rehabilitation efforts.

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(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that OWCP properly reduced appellant’s compensation, effective May 29, 

2016, under 5 U.S.C. § 8113(b) for failure, without good cause, to undergo vocational 

rehabilitation efforts, as directed.

 

16 Sedentary work, according to the DOT, involves exerting up to 10 pounds of force occasionally and sitting most 

of the time, but may involve walking or standing for brief periods of time. Occasionally performing an activity means 

that the activity is performed up to 1/3 of the time during the workday. The position of office assistant/office clerk 

involved entering information into a computer, preparing correspondence on a computer, and performing other clerical 

duties such as photocopying and filing documents. 

17 In an October 23, 2015 work capacity evaluation form (OWCP-5c), Dr. Somogyi indicated that appellant could 

work eight hours per day with restrictions of lifting up to 40 pounds for four hours per day, twisting for two hours per 

day, and bending/stooping for two hours per day.

18 See M.P., Docket No. 18-0094 (issued June 26, 2018) (finding that the vocational rehabilitation counselor is an 

expert in the field of vocational rehabilitation and that OWCP may rely on his or her opinion in determining whether 

the job is vocationally suitable and reasonably available).
9

ORDER

IT IS HEREBY ORDERED THAT the April 5, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 2, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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