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United States Department of Labor
Employees’ Compensation Appeals Board
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RHONDA F. NELSON,
Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Fresno, CA,
Employer
__________________________________________
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Docket No. 04-2123
Issued: November 14, 2005
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Appearances: Case
Submitted on the Record
Thomas P. Fochs, for the appellant
Office of the Solicitor, for the Director
DECISION AND ORDER
Before:
DAVID S. GERSON,
Judge
WILLIE T.C. THOMAS,
Alternate Judge
MICHAEL E. GROOM,
Alternate Judge
JURISDICTION
On August 31, 2004
appellant filed a timely appeal from the Office of Workers’ Compensation
Programs’ decisions dated August 25, 2004, for denial of a claim for recurrence
of disability, and July 23, 2004, denying modification of a September 12, 2001 Office decision reducing compensation due to her refusal to
cooperate with vocational rehabilitation efforts. Under 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the
Office properly reduced appellant’s compensation benefits on the grounds that
she refused to cooperate with vocational rehabilitation efforts; and (2) whether
appellant sustained a recurrence of disability causally related to her accepted
bilateral carpal tunnel syndrome and bilateral medial epidcondylitis
conditions.
FACTUAL HISTORY
Appellant, a 38-year-old mail
processing equipment operator, filed a Form CA-2 claim for benefits on December 1, 1997, alleging that she developed bilateral carpal tunnel syndrome and
bilateral elbow tendinitis conditions causally related to factors of her employment.
On December 30, 1997 the Office accepted the claim for bilateral carpal
tunnel syndrome and bilateral medial epicondylitis conditions. The Office
commenced appellant’s appropriate compensation for temporary total disability.
In a report dated April 12, 1999, Dr. Edward A.
Lembert, a Board-certified orthopedic surgeon and appellant’s treating
physician, stated that appellant had trouble typing for more than 10 to 15
minutes at a time, which resulted in numbness in her hands. He advised that
appellant was permanent, stationary and ratable. Dr. Lembert stated that
appellant should not be assigned to jobs requiring repetitive use of her arms
or hands, with no gripping or lifting more than five pounds on a permanent basis.
In an April 15, 1999 work capacity evaluation, he indicated that appellant
should be completely limited from repetitive movements involving the wrists and
elbows and should engage in no lifting of more than five to ten pounds.
On June 2, 1999
the Office authorized appellant’s referral for vocational rehabilitation.
The vocational rehabilitation counselor
identified three positions within the restrictions outlined by Dr. Lembert:
one for database administrator; one for user support analyst; and one for
computer systems hardware analyst. Dr. Brian H. Clague,
Board-certified orthopedic surgeon and appellant’s new treating physician,
approved the database administrator and computer systems hardware analyst positions
as within her physical restrictions on March 17, 2000. In an Office memorandum dated April 25, 2000,
the Office rehabilitation specialist stated that the vocational rehabilitation
counselor had submitted a training program at San Joaquin Valley College in Fresno, California,
which outlined a plan to train appellant for the three selected positions
listed above.
By letter dated May 16, 2000,
the Office advised appellant that the positions identified by the vocational
rehabilitation counselor and approved by Dr. Clague were within her
physical limitations. The Office advised appellant that she was expected to
begin working at or training for these positions.
In a report dated May 23, 2000,
the vocational rehabilitation counselor stated that she had contacted San Joaquin Valley College and
enrolled appellant in one of its training programs. Appellant’s first class
was scheduled for June 26, 2000. In a June 30,
2000 progress report, the vocational
rehabilitation counselor stated that appellant had attended one class on June 26, 2000
but had not returned to class since then; she stated that she asked appellant
how her day had gone and appellant had replied that she was experiencing
physical problems with her hands.
By letter dated August 2, 2000,
the Office advised appellant that it proposed to reduce her compensation for
wage loss to zero pursuant to section 8113(b),
because she had refused to cooperate with vocational rehabilitation efforts.
The Office advised appellant that it had been informed by the vocational
rehabilitation counselor that she had missed 13 of her first 15 classes at San
Joaquin Valley College and had been dropped from the program.
The Office noted that although appellant had apparently mentioned having
medical problems to school officials, it had no documentation of any medical
condition which would have prevented her from attending school.
The Office advised appellant, if she failed or refused to participate in
vocational rehabilitation without good cause, her compensation benefits would
be reduced based on what probably would have been her wage-earning capacity had
he or she not failed to apply for and undergo vocational rehabilitation. The
Office then directed appellant to undergo the training program in computer
support technology which was approved by the Office, and to contact the Office
to make necessary arrangements to resume the training program. The Office
advised her that, if she believed she had sufficient reasons or justification
for not participating in the training program, she should state the reason in
writing to the Office with supporting documentation. The Office afforded
appellant 30 days to make a good faith effort to participate in vocational
rehabilitation efforts and undergo the approved training program, or it would
reduce her compensation to zero pursuant to section 8113(b).
By letter to the Office dated August 28, 2000,
appellant denied that she refused to attend classes at San Joaquin Valley College.
Appellant alleged that she had not spoken to or been contacted by her
vocational rehabilitation counselor since May 2000, and accused the
vocational rehabilitation counselor of giving the Office inaccurate
information. She stated that, although she had been looking forward to
attending classes in order to get out of her house and be around people again,
she told her vocational rehabilitation counselor that she felt an accelerated
program would result in excessive homework, which would be difficult for her to
complete in light of her bilateral hand conditions. Appellant stated that she
told her school adviser about her disability and decided that it was in
everyone’s best interest that she take a leave of absence from the program in
order to ameliorate her work-related hand and elbow symptoms. Appellant also
alleged that she unsuccessfully attempted to schedule an appointment with Dr. Clague
but was given “the runaround.”
In support of her assertions, appellant
submitted an August 24, 2000 report from Dr. Kenneth O’Brien, a
Board-certified orthopedic surgeon, who stated that appellant had to quit
attending classes at San Joaquin Valley College due to the stress of the program. He stated that the
repetitive motions required by her class assignments caused severe exacerbation
of pain. Dr. O’Brien stated that he intended to schedule appellant for
surgery to correct her condition at a subsequent date. In an Office memorandum
dated September 5, 2000, it was noted that appellant had not contacted San Joaquin Valley College or the
vocational rehabilitation counselor since the August 2, 2000 warning
letter had been issued.
In an Office memorandum dated October 3, 2000,
the Office rehabilitation specialist stated that the Office had received no new
medical report or request for surgery authorization from Dr. O’Brien since
his August 24, 2000 report. The Office stated that it would not
implement sanctions for noncooperation at that time, but would contact Dr. Clague,
the attending physician, for an updated report. In an October 10, 2000
Office memorandum, the Office indicated that the vocational rehabilitation
counselor was outlining a less accelerated training program and had located two
new positions which it would submit for Dr. Clague’s approval. The Office
further noted that appellant was not responding to the vocational
rehabilitation counselor’s telephone calls, which raised a possible
noncooperation issue.
In a report dated November 2, 2000,
Dr. Clague stated that appellant had undergone repeat nerve conduction
studies in both of her arms which showed that there was no ulnar entrapment.
He did note that appellant had some mild findings of a residual carpal tunnel
syndrome. Dr. Clague further indicated that he had reviewed and approved
the job description for graphic designer, DOT #141.061-018 and desktop
publisher, DOT# 979.382-026, the new positions located by the vocational
rehabilitation counselor. He stated that both of these were sedentary jobs,
although they required a lot of hand movement with a mouse, and asserted that “she
would do fine with this as long as she [did] not have to do a lot of forced
gripping.” On November 9, 2000 and December 18,
2000 Dr. Clague indicated to the
vocational rehabilitation counselor that appellant could perform the graphic
designer and desktop publisher positions.
In a February 16, 2001 progress report, the vocational rehabilitation counselor stated that,
although appellant, after rescheduling a December 27, 2000 appointment, had resolved to schedule another appointment with her
after returning home after the holidays on January 16, 2001, she had failed to attend another appointment scheduled for January 22, 2001. The vocational rehabilitation counselor stated that appellant did
not contact her to either explain her absence at the January 22, 2001
meeting or try to reschedule another appointment.
In a March 7, 2001 Office memorandum,
the Office rehabilitation specialist stated that he would recommend treating
appellant’s pattern of missed appointments and refusal to contact the
vocational rehabilitation counselor as noncooperation. He advised that, since
a warning letter was previously released, a sanctions decision could be
issued.
By decision dated September 12, 2001,
the Office reduced appellant’s wage-loss compensation benefits to zero on the
grounds that she refused to participate in vocational rehabilitation without
good cause. The Office stated that appellant had been referred for vocational
rehabilitation, which had identified several jobs approved by his treating
physician, Dr. Clague. The Office indicated that, when appellant missed 13
of the 15 classes at the training program which was necessary to complete in
order for her to prepare for the identified jobs, and when she did not respond
to telephone calls from the vocational rehabilitation counselor, it had issued
a warning letter on August 2, 2000. The Office stated that, after appellant indicated
that her participation in the classes had aggravated her accepted conditions,
it had made efforts to secure alternative training programs which would be less
intensive. The Office then located positions which were approved as within her
physical limitations by Dr. Clague; however, when she continued to fail to
contact her vocational rehabilitation counselor and continued to miss
appointments, and failed to make efforts to begin training for the alternative
programs, the Office determined that this pattern of noncooperation warranted
sanctions.
The Office therefore reduced appellant’s compensation
based on 66 and 2/3 percent of the difference between her pay rate as
determined for compensation purposes and what her wage-earning capacity would
have been if she had cooperated with vocational rehabilitation efforts. In
light of her noncooperation with vocational rehabilitation, the Office reduced
her compensation to zero effective October 7, 2001, finding that the evidence of record showed that the position of
database administrator represented her wage-earning capacity.
By letter dated October 10, 2001,
appellant expressed her disagreement with the Office’s September 12, 2001
decision reducing her compensation on the grounds that she refused to cooperate
with vocational rehabilitation efforts. She asserted that Dr. Clague was
not her treating physician, that the Office had authorized treatment by Dr. Clague
only for a one-time visit in order to evaluate her condition for the San Joaquin Valley College training
program. Appellant also denied the vocational rehabilitation counselor’s
assertion that she had engaged in a pattern of missed appointments.
In a report dated December 17, 2001,
Dr. Ahsan K. Bajwa, Board-certified in psychiatry and neurology,
stated that appellant began having pain and paresthesias in 1997, with symptoms
that were initially nocturnal but had increased progressively and were present
most of the time. Dr. Bajwa stated that appellant’s hands fall asleep on
a frequent basis, with pain extending to the elbows. He related that she
dropped objects and that her hands fell asleep while driving, using the
telephone and performing other, similar movements. Dr. Bajwa advised
that appellant indicated that she continued to have constant pain and
paresthesias, with moderate to severe pain, intermittently. Appellant stated
that her pain increased with activity requiring pushing, pulling lifting,
turning and twisting or with any other activity, and was present in both arms.
Dr. Bajwa advised that appellant was permanently disabled and unable to
return to her regular work and was also unable to return to vocational
rehabilitation because of the severe pain and disability that she was
experiencing. He recommend that appellant be examined by a hand surgeon but
was very reluctant to do so.
In reports dated March 7 and 27,
2002, Dr. Bajwa essentially reiterated his previous findings and his
conclusion that appellant remained totally disabled and unable to work. Dr. Bajwa
stated in a March 20, 2002 disability slip that appellant would be disabled from
October 1, 2001 to June 20, 2002. In a report dated May 23, 2002, Dr. Bajwa
stated that appellant had severe epicondylitis and severe tendinitis. He opined
that she would be temporarily and totally disabled for the next six weeks.
By letter dated August 12, 2002,
appellant requested reconsideration of the Office’s September 12, 2001 decision.
She denied that she had engaged in a pattern of noncooperation, asserting that
she had difficulty obtaining medical records that the vocational rehabilitation
counselor was receiving, that she was never warned there was a problem with her
missing appointments, and that she would always call the vocational
rehabilitation counselor whenever she missed an appointment. Appellant also
asserted that the training programs that the vocational rehabilitation
counselor was proposing for her were not appropriate for someone with her type
of disability and her levels of training, education and experience.
Dr. Abbas Mehdi, a specialist in neurological
surgery, performed a nerve conduction velocity study on January 29, 2003,
which indicated that the median and ulnar nerves were within normal limits with
normal conduction velocities. In a report dated May 28, 2003, Dr. Mehdi
stated that when he examined appellant on July 10, 2002
she related complaints of hand, wrist and elbow pain, moderate to severe. He
advised that the tests appellant underwent on January 29, 2003 clearly
indicated absence of carpal tunnel syndrome and likely resolving of her carpal
tunnel-related symptoms, mainly because she had had surgery performed. Dr. Mehdi
stated that during this time appellant was continued on total temporary
disability, mainly because she continuously complained of having severe pain.
He related that, when he raised the issue of returning her to light duties, she
indicated that she would not be able to do so. Dr. Mehdi stated that,
during his most recent examination of appellant, on May 19, 2003, she was again
complaining of moderate to severe pain bilaterally in her hands, elbows and
wrists. She indicated that she had weakness in her hands and wrists, was
dropping things, and had a tingling and abnormal sensation in her bilateral
upper extremities. Dr. Mehdi stated that he advised appellant that he
wanted to try to return her to at least light duty or modified duties before
declaring her completely disabled.
In a September 24, 2003 letter, appellant indicated her willingness to cooperate with the
Office’s vocational rehabilitation program.
By letter dated April 19, 2004,
appellant’s attorney contended that the Office erred in reducing appellant’s
compensation to zero on the grounds that she refused to cooperate with
vocational rehabilitation efforts in its September 12, 2001 decision. Appellant’s attorney contended that: (a) there was no
evidence that the Office or any physician considered all of appellant’s
accepted conditions when developing a vocational rehabilitation program for
her. He stated that appellant had a prior accepted claim for overuse syndrome
of the left shoulder and cervical strain, and that there is no evidence these
claims were factored into the work restrictions issued by appellant’s
physicians; (b) there was no demonstration in the file that the Office had
determined her conditions were permanent before she was referred to the vocational
rehabilitation program, as is required under section 8104; (c) because Dr. Lembert
had admitted to operating on the wrong body part, the Office was under an
obligation to assist appellant with developing medical evidence as to whether
or not she suffered injury or damage to the body part on which Dr. Lembert
wrongly operated. Consequently, appellant’s attorney contended that the claim
must be accepted for surgery on a lateral epicondyle of the right elbow, as the
malpractice by Dr. Lembert was a consequence of the accepted conditions
and the accepted surgeries in this case; (d) the positive electromyelogram of
December 5, 2001 cited by Dr. Bajwa in his December 17, 2001
report demonstrated that appellant was justified in limiting the vocational
rehabilitation effort; (e) the objective to train appellant as a database
operator was beyond her physical limitations; appellant’s attorney asserted
that “it is common knowledge that to become a database administrator [appellant]
needed to continuously engage in ‘repetitive use of her arms and hands’ [and
therefore,] the intended goal of the vocational rehabilitation program ignored [appellant’s]
physical and medical disabilities and the work restrictions placed upon her by Dr. Lembert
and … Dr. Clague”; the selected position was beyond appellant’s
established medical restrictions and limitations; (f) Dr. Clague approved
positions that required appellant to engage in repetitive activity with her
upper extremities for up to two thirds of her workday and lift up to 10 pounds,
thereby exceeding her established medical restrictions and work limitations; (g)
the Office improperly reduced appellant’s compensation because the vocational
rehabilitation was not designed to train appellant to become a database
administrator.
Appellant’s attorney further contended that appellant’s advanced
age, in addition to her lack of training, education and experience, even had
she completed the training program developed by the Office, disqualified her
from a position as a database administrator with any of the employers
identified by the labor market survey. In addition, he stated that of the
eight employers identified, six specifically stated that they were not hiring
for the position of database administrator and did not foresee hiring in the
future. He stated that of the two employers that may have been hiring for that
position, both required either system certification or system specific
knowledge which appellant would not have attained at the conclusion of the
training program developed by the Office’s vocational rehabilitation
counselor. Thus, appellant’s attorney contended that the labor market survey
clearly demonstrated that a database administrator position was not readily
available to someone with appellant’s age, experience and knowledge.
With regard to the Office’s finding that
appellant engaged in a pattern of noncooperation with her vocational
rehabilitation counselor, appellant’s attorney stated that although she missed
appointments with the vocational rehabilitation counselor, this was because she
was unable to drive to those appointments because of her disability with her
upper extremities. Appellant’s attorney indicated that appellant either
rescheduled the missed appointments or completed telephonically; however, the
vocational rehabilitation counselor never informed the Office that appellant
had done these things. Appellant’s attorney contended that the vocational
rehabilitation training plan failed to provide appellant with required
training, such as courses in A+ Microsoft Windows and networking -- which were
required to qualify her for a position as a database administrator, as
demonstrated by the labor market surveys relied upon by the Office in its
decision of September 12, 2001. Finally, appellant’s attorney
contended that appellant submitted medical evidence sufficient to establish
that she was totally disabled because of her accepted conditions and was
therefore unable to complete her training program and unable to perform the
selected positions referenced in the September 12, 2001 Office decision.
On June 5, 2004
appellant filed a Form CA-2a claim for benefits, alleging that she sustained a
recurrence of disability on December 5,
2001 which was causally related to her accepted
condition.
By letter dated June 30, 2004, the Office advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation
benefits based on a recurrence of disability. The Office asked appellant to
submit a comprehensive medical report from her treating physician describing
her symptoms and the medical reasons for her condition, and an opinion as to
whether her claimed condition as of December 5, 2001 was causally related
to her April 5, 2003 employment injury.
By decision dated July 23, 2004, the Office denied modification of the September 12, 2001 decision reducing
compensation.
By decision dated August 25, 2004, the Office denied appellant compensation for a recurrence of her accepted
bilateral carpal tunnel and epicondylitis conditions. The Office found that
appellant failed to submit medical evidence sufficient to establish that the
claimed conditions or disability as of December 5, 2001 which was caused or aggravated by the accepted conditions.
LEGAL PRECEDENT -- ISSUE
1
The Federal Employees’
Compensation Act, in 5 U.S.C. § 8113(b) states:
“If an individual without good cause fails to apply
for and undergo vocational rehabilitation when so directed under section 8104
of this title, the [Office], on review under section 8128 of this title 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
[Office].”
The Act further provides: “If an
individual without good cause fails to apply for and undergo vocational
rehabilitation, when so directed under section 8104” the Office, 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 [her] wage-earning capacity in the absence of the failure, until the
individual in good faith complies” with the direction of the Office.
Under this section of the Act, an employee’s failure to willingly cooperate
with vocational rehabilitation may form the basis for termination of the
rehabilitation program and the reduction of monetary compensation.
In this regard, the Office’s implementing federal regulation states:
“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, [the
Office] will act as follows:
(a) Where a suitable job has been
identified, [the Office] 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. [The
Office] will determine this amount in accordance with the job identified
through the vocational rehabilitation planning process, which includes meetings
with the [Office] 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 [the Office].”
ANALYSIS -- ISSUE 1
In the instant case, the record clearly supports the
Office’s determination in its September 12,
2001 decision that appellant engaged in
a pattern of noncooperation with vocational rehabilitation efforts. On June 2, 1999 the
Office authorized appellant’s referral for vocational rehabilitation. The
vocational rehabilitation counselor identified three positions as suitable for
appellant based on the work restrictions and physical limitations outlined in Dr. Lembert’s
April 12, 1999 report and April 15, 1999 work capacity evaluation; two of the positions were then approved as
within appellant’s work restrictions by Dr. Clague, her new treating
physician. She then enrolled appellant in the San Joaquin Valley College
training program which would provide her with the requisite training to attain
employment in one of these positions. Appellant verbally agreed to cooperate
with the vocational counselor and initially participated in the training
program by enrolling in the training class at San Joaquin Valley College, but
she subsequently failed to act in accordance with her stated willingness to
undergo vocational training. She did not attend 13 of the first 15 classes
scheduled, informing school officials, but not her vocational rehabilitation
counselor, that her class assignments were aggravating her accepted hand, wrist
and elbow conditions. The Office sent appellant a letter on August 2, 2000
warning her that her continued refusal to cooperate with vocational
rehabilitation efforts would result in the reduction of her compensation to
zero. The Office then directed appellant to undergo the training program in
computer support technology which was approved by the Office and to contact the
Office to make necessary arrangements to resume the training program.
Appellant then informed the Office that her accepted conditions were causing
her problems and stated that she had advised her vocational rehabilitation
counselor that she felt an accelerated program like the one at San Joaquin College would
result in excessive homework which would be difficult for her to complete in
light of her bilateral hand condition. She also attached an August 24, 2000
report from Dr. O’Brien which purported to support these assertions and
recommended surgery.
Although the record indicates that
appellant subsequently continued to display a lack of cooperation -- a
September 5, 2000 Office memorandum noted that appellant had not contacted
the school or the vocational rehabilitation counselor since the August 2,
2000 warning letter, and an October 3, 2000 Office memorandum stated that
the Office had received no new medical report or request for surgery
authorization from Dr. O’Brien since his August 24, 2000 report -- the
Office stated that it would not implement sanctions for noncooperation at that
time, but would contact Dr. Clague, the attending physician, for an updated
report. In an October 10, 2000 Office memorandum, the Office indicated
that the vocational rehabilitation counselor was outlining a less accelerated
training program and had located two new positions which it would submit for Dr. Clague’s
approval. The Office further noted that appellant was not responding to or
returning the vocational rehabilitation counselor’s telephone calls, which again
raised a possible noncooperation issue. On November 2, 2000 Dr. Clague approved the job descriptions for graphic designer and
desktop publisher, the new positions located by the vocational rehabilitation
counselor. The job descriptions indicated that appellant would require a six-month
training program in order to qualify for the positions. However, appellant’s continued
failure to answer the vocational rehabilitation counselor’s telephone calls --
at one point appellant had a caller ID block put on her number which blocked
the vocational rehabilitation counselor’s telephone calls -- was noted again in
a December 19, 2000 Office memorandum. The Office stated in a December 27, 2000
memorandum that the vocational
rehabilitation counselor received a letter from claimant stating that her telephone
had been disconnected and that she will be out of state for the holidays and
would reschedule her appointment upon her return. However, in a February 16,
2001 progress report, the vocational
rehabilitation counselor stated that, although appellant, after rescheduling the
December 27, 2000 appointment, had resolved to schedule another
appointment with her after returning home after the holidays on January 16, 2001,
she had failed to attend another appointment scheduled for January 22, 2001. The vocational rehabilitation counselor stated that appellant did
not contact her to either explain her absence at the January 22, 2001
meeting or try to reschedule another appointment.
In a March 7, 2001 Office memorandum,
the Office rehabilitation specialist stated that he would recommend treating
appellant’s pattern of missed appointments and refusal to contact the
vocational rehabilitation counselor as noncooperation. He advised that, since
a warning letter was previously released, a sanctions decision could be issued.
Appellant did not submit any other documentation or medical evidence
supporting her alleged inability to participate in vocational efforts until September 12, 2001,
when the Office issued its decision reducing appellant’s wage-loss compensation
benefits to zero on the grounds that she refused to participate in vocational
rehabilitation without good cause. The Office stated that it had issued appellant
a warning letter on August 2, 2000, after which appellant had restated her intention to
participate in rehabilitation efforts after indicating that her participation
in the San Joaquin Valley College classes had aggravated her accepted conditions. However,
when she continued to miss scheduled appointments with her vocational
rehabilitation counselor, placed a block on her telephone, failed to return
telephone calls or contact the vocational rehabilitation counselor, failed to
reschedule appointments with the vocational rehabilitation counselor and failed
to make efforts to begin training for the alternative programs in accordance
with her stated intentions, the Office determined that this pattern of
noncooperation warranted sanctions. This decision was proper, as the record
indicates that appellant had ample opportunity over a course of two years, from
June 1999 to September 2001, to maintain regular contact with her
vocational rehabilitation counselor and attend meetings to discuss her progress
and to coordinate her training with her vocational rehabilitation counselor in
order to return to gainful employment, but continually failed to do so. Therefore,
appellant effectively refused to participate in vocational testing with the
vocational counselor without good cause.
The Board has previously recognized that
medical inability to participate in vocational rehabilitation, if properly
substantiated, may constitute good cause for failure to participate in
vocational rehabilitation.
However, the only medical evidence appellant submitted was the August 24, 2000
report from Dr. O’Brien, which did not constitute sufficient medical
evidence that she was medically unable to participate in vocational
rehabilitation. Dr. O’Brien’s report merely stated in summary fashion
that appellant had to quit attending classes at San Joaquin Valley College due
to the stress of the program and because the repetitive motions required by her
class assignments caused severe exacerbation of pain. Dr. O’Brien stated
that he scheduled appellant for surgery to correct her condition at a
subsequent date, which did not submit any additional reports or a request for
authorization to perform this surgery. Therefore, his report did not contain a
probative, rationalized opinion establishing that appellant’s accepted conditions
prohibited her from engaging in vocational rehabilitation. Appellant’s
treating physician, Dr. Clague, indicated after reviewing the job
descriptions that appellant was capable of performing the listed positions and
released her to begin vocational rehabilitation to train for these positions.
Accordingly, the Office properly
determined that appellant would have had the wage-earning capacity of a
database administrator if she had cooperated with vocational rehabilitation. Thus,
the Office had a proper basis to reduce her disability compensation effective September 12, 2001.
The Board therefore finds that the Office has met its burden of justifying a
reduction in appellant’s compensation for total disability.
Following the Office’s reduction of compensation, the
burden to establish entitlement to compensation shifted to appellant.
Appellant and her attorney contended that she submitted medical evidence
sufficient to establish that she was totally disabled because of her accepted
conditions and was therefore unable to complete her training program and unable
to perform the selected positions referenced in the September 12, 2001
Office decision. The Board finds, however, that the medical evidence appellant
submitted following the Office’s September 12,
2001 decision reducing her compensation
to zero was not sufficient to meet this burden. This evidence consists of
reports dated December 17, 2001 and March 7 and 27, 2002 from Dr. Bajwa and
the January 29, 2003 nerve conduction study report and May 28, 2003
report from Dr. Mehdi. In his December 17, 2001 report, Dr. Bajwa stated that appellant experienced moderate to
severe pain and paresthesias in hands which were present most of the time. He
related that appellant stated that her hands fell asleep on a frequent basis,
with pain extending to the elbows, that she dropped objects and that her hands
fell asleep while driving, using the telephone and performing other, similar
movements. Dr. Bajwa stated that her pain increased with activity
requiring pushing, pulling, lifting, turning and twisting or with any other
activity, and was present in both arms. He concluded that appellant was
permanently disabled and unable to return to her regular work and was also
unable to return to vocational rehabilitation because of the severe pain and
disability that she was experiencing. Dr. Bajwa stated that he had
recommended that appellant be examined by a hand surgeon but that she was
reluctant to do this.
In his March 7, 20 and 27, and May 23, 2003
reports, he essentially reiterated his previous findings and his conclusion
that appellant remained totally disabled and unable to work.
Dr. Bajwa’s reports, however, do not
establish that appellant is totally disabled or that her medical condition
precluded her from participating in the training program outlined by the
vocational rehabilitation counselor. None of Dr. Bajwa’s reports
contained a rationalized medical opinion to contradict the weight of the
medical evidence, as represented by Drs. Lembert and Clague. These physicians indicated
that appellant was capable of returning to work as long as it not require forced
gripping, repetitive use of her arms, hands or elbows, or lifting more than
five to ten pounds. Dr. Clague specifically approved several sedentary
jobs which he deemed to be within these restrictions. Further, the May 28,
2003 report from Dr. Mehdi tended to support the Office’s determination
that appellant was capable of returning to some form of light work within her
work restrictions. Dr. Mehdi advised that the tests appellant underwent
on January 29, 2003 clearly indicated absence of carpal tunnel syndrome
and likely resolving of her carpal tunnel-related symptoms, mainly because she
had had surgery performed. Although Dr. Mehdi related that appellant continuously
complained of having severe pain in her hands, elbows and wrists, he stated
that he had recommended to appellant that he wanted to try to return her to at
least light duty or modified duties before declaring her completely disabled.
With regard to the extensive list of
contentions submitted on reconsideration by appellant’s attorney, none of these
contain any sufficient grounds upon which to find error in the Office’s
September 12, 2001 decision reducing appellant’s compensation. The Office
properly rejected his contentions that the Office erred by failing to find that
Drs. Lembert and Clague’s work restrictions were inadequate in developing a
vocational rehabilitation program for her because they did not consider all of
appellant’s accepted conditions. Both of these physicians gave appellant a
full and fair examination and determined on the basis of these examinations
that appellant could begin vocational training and perform work within her outlined
restrictions. It is appellant’s burden to submit medical evidence showing that
she had additional medical
conditions which established that her planned training program exceeded her
work restrictions.
As discussed above, appellant has failed to submit such evidence.
Appellant’s attorney further contended that appellant’s
advanced age, coupled with her lack of experience, training and education,
disqualified her from both of the positions selected by the vocational
rehabilitation counselor, database administrator and computer systems hardware
analyst, and with any of the employers identified by the labor market survey,
even if she had completed the training program developed by the Office. This
contention, however, is not relevant to the issue in this case, whether the
Office properly found in its September 12, 2001 decision that appellant
refused to cooperate with vocational rehabilitation efforts. The Office
reduced appellant’s compensation because it found that appellant -- over a more
than two-year period -- engaged in a pattern of noncooperation with her
vocational rehabilitation counselor. It was therefore unnecessary for the
Office to consider whether the positions for which appellant was supposed to
engage in training were not actually available to her based on her alleged
advanced age and inadequate experience, training and education.
Finally, with regard to counsel’s
contention that the Office erred in finding that appellant engaged in a pattern
of noncooperation with her vocational rehabilitation counselor, he has
submitted no contentions or evidence establishing that the Office erred in its September 12, 2001
decision. Appellant’s attorney asserted that although appellant had
demonstrated her cooperation by either rescheduling the missed appointments or
completing them telephonically, the vocational rehabilitation counselor had
never informed the Office that appellant had done these things. This
assertion, however, is contradicted by the instant record. As discussed above,
appellant has an extensive track record, from July 1999 to September 2001,
of engaging in a pattern of noncooperation with vocational rehabilitation
efforts. This pattern consisted of unreturned telephone calls, blocked
telephone calls, missed appointments, failure to reschedule appointments, and
failure to contact her vocational rehabilitation counselor. The Office
properly relied on this track record of noncooperation in its September 12, 2001
decision, and it properly denied reconsideration in its July 23, 2004 decision.
The Board therefore affirms the July 23,
2004 Office decision affirming the September 12, 2001
decision reducing appellant’s compensation to zero.
LEGAL PRECEDENT -- ISSUE 2
An individual who claims a recurrence of
disability resulting from an accepted employment injury has the burden of
establishing that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis
of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to the employment injury, and who
supports that conclusion with sound medical reasoning.
ANALYSIS -- ISSUE 2
In the instant case, appellant has failed
to submit any medical opinion containing a rationalized, probative report which
relates her disability for work as of December 5, 2003 to her accepted bilateral carpal tunnel and epicondylitis conditions.
For this reason, she has not discharged her burden of proof to establish her
claim that she sustained a recurrence of disability as a result of her accepted
employment conditions.
In support of her recurrence claim,
appellant submitted the reports dated March 7 and 27 and May 23, 2002
from Dr. Bajwa and the January 29,
2003 nerve conduction study report and May 28, 2003
report from Dr. Mehdi. As indicated above, Dr. Bajwa stated findings
on examination and concluded that appellant remained totally disabled and
unable to work due to severe epicondylitis and severe tendinitis in her hands,
wrists and elbows.
Dr. Bajwa’s reports, however, do not
constitute sufficient medical evidence demonstrating a causal connection
between appellant’s employment-related condition and her alleged recurrence of
disability on December 5, 2003. Causal relationship must be established by
rationalized medical opinion evidence. Dr. Bajwa’s reports failed to
provide a rationalized, probative medical opinion indicating that her condition
as of December 5, 2003 was caused or aggravated by her accepted bilateral
carpal tunnel and epicondylitis conditions.
The May 28, 2003 report from Dr. Mehdi, as stated earlier, indicated
that he in fact did not believe that appellant was totally disabled based on
his examinations of her, and had recommended that she at least try to return her
to at least light duty or modified duties before he declared her totally
disabled.
As there is no probative, rationalized
medical evidence addressing and explaining why the claimed condition and
disability as of December 5, 2003 was caused or aggravated by her accepted
employment conditions, appellant has not met her burden of proof in
establishing that she sustained a recurrence of disability.
CONCLUSION
The Board finds that the Office properly
reduced appellant’s compensation benefits to zero on the grounds that she
refused to cooperate with vocational rehabilitation efforts. The Board finds
that appellant has not met her burden to establish that she was entitled to
compensation for a recurrence of disability as of December 5, 2003 causally
related to her accepted bilateral carpal tunnel and epicondylitis conditions.
ORDER
IT
IS HEREBY ORDERED THAT the August 25 and July 23, 2004 decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: November 14, 2005
Washington, DC
David S.
Gerson, Judge
Employees’
Compensation Appeals Board
Willie
T.C. Thomas, Alternate Judge
Employees’
Compensation Appeals Board
Michael E.
Groom, Alternate Judge
Employees’
Compensation Appeals Board