United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

DEPARTMENT OF THE ARMY, LEXINGTON 

BLUEGRASS ARMY DEPOT, Richmond, KY, 

Employer

__________________________________________

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Docket No. 23-0377

Issued: June 5, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On January 18, 2023 appellant filed a timely appeal from an October 26, 2022 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 this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the October 26, 2022 decision, OWCP received additional evidence. However, 

the Board’sRules 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.” 20 C.F.R. § 501.2(c)(1). Evidence not before OWCP will 

not be considered by the Board 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 October 26, 2022, for failing to cooperate with vocational 

rehabilitation without good cause.

FACTUAL HISTORY

This case has previously been before the Board on different issues.3 The facts and 

circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The 

relevant facts are as follows.

On February 9, 1994 appellant, then a 42-year-old boiler operator, filed an occupational 

disease claim (Form CA-2) alleging that he sustained carpal tunnel syndrome causally related to 

factors of his federal employment. OWCP accepted the claim for bilateral carpal tunnel syndrome. 

It paid appellant wage-loss compensation for total disability beginning August 31, 1995.4 

By decisions dated September 12, 2001 and May 7, 2002, OWCP reduced appellant’s 

compensation benefits based on its finding that he had the capacity to work as a telecommunicator. 

Appellant appealed to the Board. By decision dated January 29, 2003, the Board reversed 

OWCP’s loss of wage-earning capacity determination after finding that the record contained a 

conflict in opinion regarding his work capacity.5 

By decision dated June 4, 2013, OWCP terminated appellant’s compensation and 

entitlement to a schedule award effective that, date as he refused an offer of suitable employment 

under 5 U.S.C. § 8106(c)(2). By decision dated November 26, 2013, an OWCP hearing 

representative affirmed the June 4, 2013 decision. By decision dated April 23, 2014, OWCP 

denied appellant’s request for a review of the written record as he had previously had a telephonic 

hearing. By decisions dated January 14 and February 9, 2015, it denied his reconsideration 

requests as untimely and insufficient to demonstrate clear evidence of error. 

On February 18, 2015 appellant appealed to the Board. By decision dated August 20, 2015, 

the Board set aside OWCP’s January 14 and February 9, 2015 decisions.6 The Board found that 

appellant had timely requested reconsideration of the November 26, 2013 decision in 

correspondence received October 31, 2014. The Board remanded the case for OWCP to apply the 

standard applicable to timely reconsideration requests.

3 Docket No. 19-1500 (issued February 24, 2020); Docket No. 16-0102 (issued March 11, 2016); Docket No. 15-

0811 (issued August 20, 2015); Docket No. 02-1754 (issued January 29, 2003).

4 Appellant underwent a right carpal tunnel release in January 1996 and a left carpal tunnel release in February 1997. 

5

Supra note 3.

6

Id.
3

By decision dated September 30, 2015, OWCP denied modification of its November 26, 

2013 decision terminating appellant’s compensation for the refusal of suitable work under 5 U.S.C. 

§ 8106(c)(2). 

Appellant appealed to the Board. By decision dated March 11, 2016, the Board reversed 

the September 30, 2015 OWCP decision.7 The Board found that the medical evidence was 

insufficient to establish that appellant could work for 10 hours per day for 4 days a week and that, 

consequently, OWCP had failed to discharge its burden of proof to support termination of his 

wage-loss compensation under 5 U.S.C. § 8106(c)(2).

Following the Board’s decision, OWCP reinstated appellant’s wage-loss compensation.8 

On July 30, 2021 OWCP referred appellant to Dr. Anbu K. Nadar, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. 

In a report dated August 20, 2021, Dr. Nadar discussed appellant’s history of injury and 

provided findings on examination. He diagnosed bilateral carpal tunnel syndrome due to the 

accepted employment injury. Dr. Nadar opined that appellant had continued residuals of his 

bilateral carpal tunnel syndrome based on his clinical examination. In a work capacity evaluation 

(OWCP-5c) of even date, he found that appellant could work eight hours per day with restrictions 

on performing repetitive movements of the wrists and elbows for no more than 2 hours and 40 

minutes per day, and pushing, pulling, and lifting up to 10 pounds for 2 hours and 40 minutes per 

day.

OWCP requested that the employing establishment provide appellant a job offer within the 

restrictions set forth by Dr. Nadar; however, it responded that it did not have a suitable position 

within Dr. Nadar’s restrictions available. 

On March 10, 2022 OWCP referred appellant to a vocational rehabilitation counselor for 

vocational rehabilitation. 

In an April 11, 2022 report, the vocational rehabilitation counselor advised that she had 

contacted appellant on March 24, 2022 for a vocational interview. She noted that he worked as a 

boilermaker, had graduated high school, and had no significant computer skills.

On June 15, 2022 OWCP transferred appellant to a different vocational rehabilitation 

counselor. 

7

Id.

8 By decision dated February 24, 2020, the Board affirmed a May 17, 2019 OWCP decision finding that appellant 

received an $4,794.68 overpayment of compensation from June 1, 2017 through October 13, 2018 because he 

concurrently received FECA wage-loss compensation and age-related benefits from the Social Security 

Administration without an appropriate offset, denying waiver of recovery of the overpayment, and requiring recovery 

of the overpayment by deducting $200.00 from his continuing compensation payments every 28 days. Id.
4

On June 23, 2022 OWCP requested updated medical evidence from appellant’s attending 

physician addressing his current condition and work limitations. 

On July 8, 2022 appellant requested a copy of his case file. He further noted that a new 

vocational rehabilitation counsel had contacted him for a meeting. 

In a vocational rehabilitation report dated July 26, 2022, the vocational rehabilitation 

counselor discussed appellant’s employment and educational background. She indicated that she 

had scheduled vocational testing. 

In an undated letter, the vocational rehabilitation counselor advised appellant that she had 

scheduled vocational testing for him on August 25, 2022 at 1:00 p.m. at a local library. 

In an August 25, 2022 rehabilitation action report (Form OWCP-44), the vocational 

rehabilitation counselor asserted that appellant had appeared for the scheduled vocational testing,

but refused to take the tests. 

On September 9, 2022 OWCP notified appellant that the vocational rehabilitation 

counselor indicated that he had refused to participate in rehabilitation efforts based on his failure 

to keep an appointment for vocational resting on August 25, 2022. 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.

In a September 21, 2022 vocational rehabilitation assessment, the vocational rehabilitation 

counselor set forth appellant’s transferrable skills and again noted that he had refused to participate 

in vocational testing. She related that there was no sedentary work within his restrictions at his 

“educational level and skill set. Sedentary jobs require computer use at every level. ” The 

vocational rehabilitation counselor indicated that appellant had “no interest in retraining in order 

to obtain a better paying job.”

In a vocational rehabilitation report dated September 22, 2022, the rehabilitation counselor 

noted that she had received an email from the vocational tester advising that appellant appeared

for the test, but refused to take it. She attached a copy of the test with his signature across the 

pages of the test.

On October 11, 2022 OWCP’s vocational rehabilitation specialist related that appellant had 

refused to participate in vocational testing scheduled for September 21, 2022. Appellant instead 

wrote his name on the test pages. 

By decision dated October 26, 2022, OWCP reduced appellant’s compensation to zero for 

failure to participate in vocational rehabilitation. It found that he had failed to participate in the 

essential preparatory effort of vocational rehabilitation when he failed to cooperate with vocational 

testing. OWCP thus found that it was unable to determine what appellant’s wage-earning capacity 

would have been had he undergone testing and vocational rehabilitation. It consequently reduced 

his compensation to zero under 20 C.F.R. § 10.519.
5

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of proof to establish that the disability has 

ceased or lessened before it may terminate or modify compensation benefits. 9 Section 8104(a) of 

FECA provides that OWCP may direct a permanently disabled employee to undergo vocational 

rehabilitation.10 

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.11

Where the failure or refusal occurred in the early, but necessary stages of the process, 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).12

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

appear for the initial interview, counseling sessions, a functional capacity evaluation, 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.13

ANALYSIS

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

pursuant to 5 U.S.C. § 8113(b), effective October 26, 2022, for failing to cooperate with vocational 

rehabilitation without good cause.

When determining whether OWCP properly reduced appellant’s wage-loss compensation 

benefits based on his failure to participate in vocational rehabilitation, the Board must first analyze 

9

S.B., Docket No. 19-0781 (issued February 2, 2022);S.C., Docket No. 19-1680 (issued May 27, 2020); Betty F. 

Wade, 37 ECAB 556 (1986).

10 5 U.S.C. § 8104(a); see also A.L., Docket No. 22-0316 (issued January 10, 2023); J.E., 59 ECAB 606 (2008).

11 Id. at § 8113(b); J.S., Docket No. 22-0386 (issued October 19, 2022); S.H., Docket No. 16-1827 (issued 

March 12, 2018); R.M., Docket No. 16-0011 (issued February 11, 2016).

12 20 C.F.R. § 10.519(b) and (c).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services, 

Chapter 2.813.17(b) (February 2011); see E.W., Docket No. 19-0963 (issued January 2, 2020); SamS. Wright, 56 

ECAB 358 (2005).
6

whether OWCP properly determined his work restrictions.14 OWCP referred him to vocational 

rehabilitation based on the August 20, 2021 report of Dr. Nadar, an OWCP referral physician, who 

found that appellant had continued residuals of his bilateral carpal tunnel syndrome. Dr. Nadar 

determined that appellant could work full time performing repetitive movements of the wrists and 

elbows for no more than 2 hours and 40 minutes per day, and pushing, pulling, and lifting up to 

10 pounds for 2 hours and 40 minutes per day. The Board finds that OWCP properly referred 

appellant for vocational rehabilitation based on Dr. Nadar’s report, which established that 

appellant was no longer totally disabled due to residuals of his employment injury. 15

In a vocational rehabilitation report dated July 26, 2022, the vocational rehabilitation 

counselor discussed appellant’s employment and educational background. She arranged for him 

to undergo vocational testing on August 25, 2022. The vocational rehabilitation counselor 

subsequently advised that appellant had appeared for the scheduled vocational testing, but refused 

to take the tests. She provided a copy of the test papers with his signature across the pages of the 

test. OWCP’s procedures provide that failure to participate in vocational testing, including the 

lack of response or inappropriate response to directions in a testing session, constitutes 

noncooperation with vocational rehabilitation.16

OWCP issued a September 9, 2022 letter requesting that appellant either participate in 

rehabilitation efforts or provide good cause for not participating in vocational rehabilitation efforts. 

It also notified him of the actions that could be taken under section 8113(b) of FECA if he failed 

to cooperate with vocational rehabilitation without good cause. Appellant did not, however, either 

participate in the vocational rehabilitation effort by undergoing testing or provide good cause for 

not going so within 30 days of OWCP’s September 9, 2022 letter. 

The Board finds that the evidence of record establishes that appellant failed to participate 

in vocational rehabilitation without good cause. Appellant’s failure to fully participate in 

preliminary testing constituted a failure to participate in the “early but necessary stages of a 

vocational rehabilitation effort.”

17

 OWCP’s regulations provide that, in such a case, it cannot be 

determined what would have been the employee’s wage-earning capacity had there been no failure 

to participate, and it is assumed, in the absence of evidence to the contrary, that the vocational 

rehabilitation effort would have resulted in a return to work with no loss of wage -earning 

capacity.18 

Appellant was given appropriate notification of the sanctions for continuing to refuse to 

cooperate with the rehabilitation program in the early stages, but failed, without good cause, to 

comply with these rehabilitation efforts. The Board finds, therefore, that OWCP properly reduced 

14 See J.S., supra note 11; F.N., Docket No. 20-0435 (issued February 26, 2021);L.C., Docket No. 12-972 (issued 

November 9, 2012).

15 R.D., Docket No. 19-0752 (issued August 20, 2019); C.M., Docket No. 18-0688 (issued November 15, 2018).

16 Supra note 13.

17 See 20 C.F.R. § 10.519(b); see also C.H., Docket No. 16-1731 (issued September 5, 2017); C.P., Docket No. 15-

0781 (issued April 5, 2016).

18 Id. at § 10.519(c); A.L., supra note 10.
7

his compensation benefits to zero for his failure to cooperate with vocational rehabilitation without 

good cause. The reduction will remain in effect until such time as appellant acts in good faith to 

comply with the direction of OWCP.19

On appeal appellant disputes that he refused to participate in vocational rehabilitation. As 

discussed, however, his failure to complete the scheduled vocational testing on August 25, 2022 

without good cause constituted a failure to participate in the early and necessary stages of 

vocational rehabilitation.

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 wage-loss compensation to zero 

pursuant to 5 U.S.C. § 8113(b), effective October 26, 2022, for failing to cooperate with vocational 

rehabilitation without good cause.

ORDER

IT IS HEREBY ORDERED THAT the October 26, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 5, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

19 Id. at § 10.519(c); see B.D., Docket No. 21-1301 (issued October 17, 2022); R.H., 58 ECAB 654 (2007).