United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Fort Dearborn, IL, Employer

__________________________________________

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Docket No. 19-1364

Issued: February 4, 2020

Appearances: Case Submitted on the Record

Larrissa Parde, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On June 7, 2019 appellant, through her representative, filed a timely appeal from a

December 14, 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.3

 

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.

3 The Board notes that, following the December 14, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “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. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP properly reduced appellant’s wage-loss compensation to zero 

pursuant to 5 U.S.C. § 8113(b), effective November 17, 2014, for failing to cooperate with 

vocational rehabilitation.

FACTUAL HISTORY

This case has previously been before the Board.

4

 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On October 28, 2011 appellant, then a 60-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that repetitive activity at work resulted in injury to her hands. 

She first realized her condition and its relation to her federal employment on February 1, 2006.5 

OWCP accepted the claim for disorder of bursae and tendons in the left shoulder and aggravation 

of bilateral primary osteoarthritis of both hands. Appellant underwent OWCP-authorized 

trapeziectomy and carpometacarpal (CMC) arthroplasty with flexor carpi radialis tendon 

interposition of the left thumb on December 21, 2011, and trapeziectomy and flexor carpi radialis 

tendon arthroplasty of basilar joint of right thumb on February 29, 2012. She did not return to 

work following her February 29, 2012 right thumb surgery. Effective September 10, 2013, 

appellant elected to receive FECA benefits. On April 7, 2012 she was placed on the supplemental 

rolls and was later transferred to the periodic rolls commencing July 1, 2012.

OWCP assigned appellant to a vocational rehabilitation program from May 22 through 

December 3, 2013 and, again, beginning September 10, 2014. The September 10, 2014 referral to 

vocational rehabilitation services noted that the weight of the medical opinion rested with the 

January 7, 2014 opinion of Dr. Kenneth Sander, a Board-certified orthopedic surgeon and 

impartial medical specialist, that appellant was able to work within the limitations outlined in a

February 6, 2013 functional capacity evaluation (FCE).6 The referral also noted that the 

employing establishment was unable to accommodate appellant’s restrictions. As the February 6, 

2013 FCE was considered outdated, the claims examiner instructed the rehabilitation counselor to 

obtain an updated FCE. 

On October 3, 2014 appellant underwent an FCE conducted by a licensed/registered 

occupational therapist, who found that a true demand level could not be determined due to 

inconsistent effort. In an October 8, 2014 letter, OWCP made note of appellant’s inconsistent 

 

4 Docket No. 18-0302 (issued August 13, 2018). 

5 Under OWCP File No. xxxxxx888, date of injury February 1, 2006, appellant has an accepted occupational disease 

claim for bilateral carpal tunnel syndrome. She underwent a right carpal release on September 26, 2007 and a left 

carpal tunnel release on December 12, 2007. OWCP determined that appellant had reached maximum medical 

improvement (MMI) on March 4, 2008. It granted her a schedule award for eight percent permanent impairment of 

her bilateral upper extremities.

6 OWCP selected Dr. Sanders to resolve a conflict in the medical opinion evidence between appellant’s attending 

physician, Dr. Florian Miranzadeh, an osteopath Board-certified in family practice, and a second opinion physician,

Dr. Theodore J. Suchy, an osteopath Board-certified in orthopedic surgery, as to the extent and degree of any 

continuing employment-related disability or residuals.
3

effort on the October 3, 2014 FCE and warned her that, if she did not participate with the vocational 

rehabilitation effort, her compensation could be reduced. Appellant was provided the opportunity 

to comply or show good cause for not complying. 

On November 5, 2014 appellant underwent another FCE. The physical therapist who 

conducted the FCE noted that, while appellant had demonstrated the ability to perform minimally 

at the light physical demand category, her performance was “questionable secondary to varied 

effort.” 

By decision dated November 17, 2014, OWCP reduced appellant’s compensation to zero,

as of November 16, 2014, based upon its finding that she had failed to cooperate during the early 

stages of vocational rehabilitation. It explained that, because she had failed to undergo the 

preparatory vocational testing, it assumed that she either would have returned to her date-of-injury 

position or would have earned higher wages. OWCP advised that the reduction in benefits would 

continue until appellant in “good faith” either underwent vocational testing or showed good cause 

for not complying. 

In a November 24, 2014 letter, appellant requested that OWCP schedule her for another 

FCE, noting that she intended to comply with the examination to the best of her abilities. 

On November 25, 2014 OWCP received appellant’s November 22, 2014 election to 

receive retirement benefits through the Office of Personnel Management (OPM), effective 

November 17, 2014. 

On November 25, 2014 appellant requested a telephonic hearing before an OWCP hearing 

representative, which was held on April 6, 2015. By decision dated July 1, 2015, OWCP’s hearing 

representative affirmed OWCP’s November 17, 2014 decision. The hearing representative 

determined that OWCP had properly found that there was sufficient basis to reduce appellant’s 

compensation benefits as she had failed to cooperate with the early stages of vocational 

rehabilitation by putting forth an inconsistent, suboptimal effort in both the October and 

November 2014 FCE’s. 

On June 20, 2016 appellant, through her representative, requested reconsideration of the 

July 1, 2015 decision. By decision dated June 2, 2017, OWCP denied her request for

reconsideration of the merits of the claim. It found that the representative’s argument regarding 

putting forth maximum effort during an FCE did not apply to the rules of evaluating medical 

evidence and thus was not relevant and was therefore insufficient to warrant a merit review. 

On November 27, 2017 appellant, through her representative, filed an appeal with the 

Board. By decision dated August 13, 2018, the Board set aside OWCP’s June 2, 2017 decision.7 

The Board found that appellant’s representative had advanced a relevant legal argument not 

previously considered by OWCP, when he had argued that the opinion of the licensed/registered 

occupational therapist and physical therapist lacked probative value and was thus an insufficient 

 

7 See supra note 4. 
4

basis to terminate compensation benefits. The case was remanded for OWCP to review the merits 

of the claim and to address appellant’s November 24, 2014 request that another FCE be scheduled. 

Since OWCP’s June 2, 2017 decision, OWCP received physical therapy notes from 

May 24 through September 2018, a July 11, 2018 authorization request for physical therapy, and 

a June 1, 2018 x-ray of the left shoulder. 

OWCP referred appellant to Dr. Allan Brecher, a Board-certified orthopedic surgeon, for 

a second opinion examination, to determine, amongst other matters, whether she had put forth a 

maximum effort during the two prior FCE’s, whether he could determine her physical capacity to 

perform work and whether she should undergo an additional FCE. 

In an October 23, 2018 report, Dr. Brecher noted his review of the records and the 

statement of accepted facts (SOAF) and presented examination findings. He provided an 

assessment of decreased grip strength after appellant’s interpositional arthroplasty of the CMC 

joints and adhesive capsulitis from rotator cuff problems, which he opined were permanently

aggravated by her employment factors. Dr. Brecher also provided comments on her prior FCE’s 

and noted that the conclusions drawn regarding the FCE’s were correct. He indicated that appellant 

had not cooperated with the administration of the FCE’s as the comments about her inconsistencies 

made it appear that she had not given 100 percent effort. Dr. Brecher additionally noted that her

physicians, Drs. Sanders and Miranzadeh, had placed her at MMI and each had provided work 

restrictions which were consistent with each other both before and after the October 3, 2014 FCE. 

He also noted that, when appellant underwent a June 12, 2014 FCE for a schedule award, both

Dr. Sanders and Dr. Miranzadeh had indicated that appellant had standing grip and span grip 

inconsistencies. Dr. Brecher indicated that, when she underwent the November 5, 2014 FCE, it 

was noted that she exhibited bilateral grip inconsistencies as well as inconsistencies in static push, 

static arm, and static leg differences. He opined that appellant was able to perform a full-time 

sedentary job with restrictions on lifting, pushing, and pulling of no more than 10 pounds and no 

reaching above her shoulders. Dr. Brecher noted that she was not at MMI as additional treatment 

was noted for the left shoulder condition. He further opined, if appellant followed his prescribed 

treatment plan of steroid injections to the shoulders, therapy, and possibly surgery, then, within six 

months, she would be able to perform her date-of-injury position. Dr. Brecher indicated that there 

was nothing more that could be done for her hands. 

In a letter dated December 14, 2018, OWCP notified appellant that it had approved her 

request to undergo an updated FCE with a physician or medical facility of her own choosing.

By decision dated December 14, 2018, OWCP denied modification of its November 17, 

2014 suspension decision. It found that Dr. Brecher’s second opinion evaluation supported the 

opinion of the therapists and physicians who had treated appellant that sub-minimal effort was 
5

given when undergoing the FCEs and thus she failed to cooperate with the vocational rehabilitation 

effort when undergoing the FCEs of October 3 and November 5, 2014. 

LEGAL PRECEDENT

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

employee to undergo vocational rehabilitation.8 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 or her wage-earning capacity in the absence of the failure, until the 

individual in good faith complies with the direction of the Secretary.9

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, [FCE], and work evaluations) OWCP cannot determine 

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

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

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

vocational rehabilitation effort would have resulted in a return to work with 

no loss of wage-earning capacity, and OWCP will reduce the employee’s 

monetary compensation accordingly (that is, to zero). This reduction will 

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

with the direction of OWCP.”

10

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.11

 

8 5 U.S.C. § 8104(a); see also J.E., 59 ECAB 606 (2008).

9

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

10 20 C.F.R. § 10.519; see R.H., 58 ECAB 654 (2007).

11 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).
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.”

12

(Emphasis in the original.) 

ANALYSIS

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

pursuant to 5 U.S.C. § 8113(b), effective November 17, 2014, for failing to cooperate with the 

early stages of vocational rehabilitation.

In an October 23, 2018 second opinion report, Dr. Brecher reviewed a SOAF and the 

medical record and responded to a series of questions. He commented on the FCEs that appellant 

had undergone and concluded that she had set forth minimal effort in undergoing both FCEs. In 

support of his conclusion, Dr. Brecher discussed the comments that her attending physicians had 

made regarding her inconsistencies, as well as her restrictions contemporaneous to the FCEs. He 

also noted that appellant’s physicians had found her at MMI at the time of the first FCE. As

Dr. Brecher’s report was sufficiently rationalized and based on an accurate factual history and the 

complete medical record, his opinion constitutes the weight of the medical evidence.13 

Thus, based on Dr. Brecher’s findings, the Board finds that appellant failed to cooperate 

with the vocational rehabilitation effort when undergoing the FCE’s of October 3, 2014 and 

November 5, 2014. Accordingly, OWCP properly reduced appellant’s wage-loss compensation 

to zero pursuant to 5 U.S.C. § 8113(b), effective November 17, 2014, for failing to cooperate with 

the early stages of vocational rehabilitation.

The Board further finds that OWCP properly issued its sanction determination. On

November 25, 2014 OWCP received appellant’s November 22, 2014 election to receive retirement 

benefits through OPM, effective November 17, 2014. As set forth above, OWCP procedures 

provide that, if a warning letter was issued while in receipt of FECA benefits, and prior to receipt 

of officially-elected benefits from OPM, she was required to cooperate with vocational 

rehabilitation until the time of the election.14 Herein, OWCP had issued its warning letter to 

appellant on October 8, 2014. It did not receive her election of retirement benefits until 

November 25, 2014. Thus, it is found that OWCP properly issued its sanction determination. The 

 

12 Id. at Chapter 2.813.18(c) (February 2011).

13 Id.

14 See supra note 12; see also R.L., Docket No. 17-0670 (issued July 14, 2017); L.O., Docket No. 13-1578 (issued 

January 9, 2014).
7

sanction 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 wage-loss compensation to zero 

pursuant to 5 U.S.C. § 8113(b), effective November 17, 2014, for failing to cooperate with the 

early stages of vocational rehabilitation.

ORDER

IT IS HEREBY ORDERED THAT the December 14, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 4, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board