United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

SHIPYARD, Long Beach, CA, Employer 

__________________________________________ 

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Docket No. 14-1484 

Issued: November 10, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 19, 2014 appellant filed a timely appeal from February 6 and April 14, 2014 

merit decisions 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. 

ISSUES 

The issues are: (1) whether OWCP properly reduced appellant’s compensation under 

5 U.S.C. § 8113(b) for failure to participate in vocational rehabilitation efforts without good 

cause; (2) whether OWCP properly suspended appellant’s compensation for failing to submit a 

Form EN-1032, as requested. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 3, 1978 appellant, a 27-year-old equipment cleaner, caught his foot on a 

plank and twisted his right ankle. He filed a claim for benefits, which OWCP accepted for right 

ankle sprain, right ankle traumatic arthritis, postarthrotomy for osteochondral fracture of the right 

talus, and tendinitis of the posterior tibial and peroneal tendons. Appellant was placed on the 

periodic rolls and submitted regular EN-1032 forms. 

In a March 6, 2012 report, Dr. Carol C. Frey, a specialist in orthopedic surgery, advised 

that appellant could return to work as of January 24, 2012 in a sedentary capacity with 

restrictions on walking and standing more than 2 hours or for more than 30 minutes at one time. 

She opined that he would be able to work at a job where he was not required to walk or stand for 

more than four hours. Dr. Frey also restricted appellant from climbing ladders or working at 

unprotected heights. 

In a report dated January 2, 2013, Dr. G.B. Ha’Eri, Board-certified in orthopedic surgery, 

stated that appellant continued to suffer objective residuals from the February 3, 1978 injury 

including the surgeries he underwent in August 1981, October 1982 and September 2008. 

Appellant continued to demonstrate abnormal findings on his magnetic resonance imaging 

(MRI) scans. Dr. Ha’Eri advised that appellant’s conditions of chondromalacia in his right ankle 

and subtalar joints were gradually progressive conditions and necessitated future medical care. 

He found that appellant could work an eight-hour day with restrictions. Appellant was instructed 

to avoid walking and standing for more than two hours; pushing and pulling exceeding 40 

pounds for more than two hours; lifting exceeding 20 pounds for more than two hours; and 

climbing or operating a motor vehicle at work. 

On February 14, 2013 OWCP referred appellant for vocational rehabilitation services, 

based on Dr. Ha’Eri’s restrictions. 

In a labor market survey dated April 9, 2013, and in a report dated April 24, 2013, the 

rehabilitation counselor found that there were two positions for appellant listed in the 

Department of Labor’s Dictionary of Occupational Titles which were within appellant’s 

indicated restrictions and reasonably reflected his ability to earn wages, customer complaint 

clerk, DOT No. 241.367.014, with a $538.80 weekly wage-earning capacity, and receptionist, 

DOT No. 237.367.038, with a $426.80 weekly wage-earning capacity. She advised that both 

jobs were being performed in sufficient numbers to make them reasonably available within 

appellant’s commuting area. 

Amy Koellner, the rehabilitation counselor, further found that appellant was interested in 

seeking jobs as a security guard in light of his experience in that field. She stated, however, that 

he was having difficulty finding jobs as a security guard within his restrictions on operating a 

motor vehicle and on standing and walking for no more than two hours. The rehabilitation 

counselor related that, with regard to his computer skills, appellant was familiar with Microsoft 

Office 2010 Word and Excel but was not a fast typist. She recommended that appellant enroll in 

a computer training course; he was receptive to this suggestion. The rehabilitation counselor 

stated that she had obtained approval for enrolling appellant in a training course with the Institute 

of Network Technology, consistent with the intent to place him in the positions of customer 
3

complaint clerk or receptionist, with training dates of April 29 to July 19, 2013. She indicated 

that appellant had disagreed with the plan and had declined to sign the plan documents and to 

start training. 

By notice of proposed reduction dated April 30, 2013, OWCP advised appellant that it 

had been informed that he had failed to attend the three-month computer skills training program 

at the Institute of Network Technology which began on Monday, April 29, 2013. Appellant 

preferred a six-month training program. Results of the tests and evaluations performed by the 

rehabilitation counselor, however, showed that the plan objectives of receptionist and customer 

complaint clerk required only three months of computer skills enhancement. OWCP stated that 

Section 8113(b) of FECA2 provides that, if an individual without good cause fails to apply for 

and undergo vocational rehabilitation when so directed, and OWCP finds that in the absence of 

the failure the individual’s wage-earning capacity would probably have increased substantially, it 

may reduce the compensation prospectively based on what probably would have been the 

individual’s wage-earning capacity had he or she not failed to apply for and undergo vocational 

rehabilitation. OWCP therefore directed appellant to complete the approved three-month 

training program at Institute of Network Technology by July 19, 2013 and to make up all time 

lost due to his nonparticipation. It advised him that, if he believed he had sufficient reason or 

justification for not participating in the training program, he should provide his reasons in 

writing along with any supporting documentation. OWCP informed him the rehabilitation effort 

would be terminated and his compensation would be reduced if he failed to cooperate. 

In a letter received by OWCP on May 3, 2013, appellant stated that he went to visit the 

Institute of Network Technology but was not given the opportunity to enroll in courses of his 

choosing. He indicated that he did not start the program because he was not comfortable with 

the rehabilitation counselor and did not trust her intentions. 

In a May 6, 2013 letter, appellant reiterated the allegations he made in his May 3, 2013 

letter. 

In a May 24, 2013 report, the rehabilitation counselor reiterated that appellant had 

refused to begin the computer training program as planned on April 29, 2013. She stated that she 

sent an e-mail to appellant on May 20, 2013 in which she advised him that he had not returned 

her telephone call, that she was attempting to resolve his concerns about the approved plan, and 

that he had been provided with 30 days to address his concerns. The rehabilitation counselor 

advised that she left a telephone message with appellant stating that if she did not hear back from 

him by May 28, 2013 she would notify OWCP on May 30, 2013 that he did not begin the 

approved plan. 

In a June 6, 2013 report, Dr. Frey stated that appellant could work in a sedentary capacity 

with no walking or standing for more than 2 hours per day or for more than 30 minutes at one 

time. 

In a June 17, 2013 decision, OWCP reduced appellant’s compensation based upon what 

would have been his wage-earning capacity as a customer complaint clerk under 5 U.S.C. 

 2

 5 U.S.C. § 8113(b). 
4

§ 8113(b) to reflect his wage-earning capacity had he continued to participate in vocational 

rehabilitation efforts. It determined that he had failed, without good cause, to undergo vocational 

rehabilitation as directed. OWCP advised appellant that the factual and medical evidence 

established that he was no longer totally disabled and had the capacity to earn wages as a 

customer complaint clerk, DOT No. 241.367.014,3 at the rate of $538.80 per week, in accordance 

with the factors outlined in 5 U.S.C. § 8115.4 It calculated that appellant’s compensation rate 

should be adjusted to $638.00 using the Shadrick5

 formula.6

On July 8, 2013 appellant requested an oral hearing, which was held on 

November 21, 2013. 

In a July 8, 2013 letter, appellant stated that he was willing to enroll in the Microsoft 

Windows 7 and Microsoft Office 2010 training program but reiterated that he wanted to work 

with another rehabilitation counselor. 

At the hearing, appellant alleged that the original training course was not the one to 

which he was assigned; he asserted that based on their discussions he had expected to be entered 

into another program which was more tailored to his skills, education and background. He 

asserted that the rehabilitation counselor was “nasty” to him and placed him in a program that 

was totally different from the one for which he felt qualified without any input from him. 

Appellant testified that there was a communication problem between him and the rehabilitation 

counselor which affected their work relationship. He also asserted that she failed to give him an 

examination to determine his computer skills. 

 3

 The job description stated: “Investigates customer complaints about merchandise, service; billing, or credit 

rating: Examines records, such as bills, computer printouts, microfilm, meter readings, bills of lading, and related 

documents and correspondence, and converses or corresponds with customer and other company personnel, such as 

billing, credit, sales, service, or shipping, to obtain facts regarding cutomer complaint. Examines pertinent 

information to determine accuracy of customer complaint and to determine responsibility for errors. Notifies 

customer and designated personnel of findings adjustments and recommendations, such as exchange of merchandise, 

refund of money, credit of customer’s account, or adjustment of customer’s bill. May recommend to management 

improvements in product, packaging, shipping methods, service, or billing methods and procedures to prevent future 

complaints of similar nature. May examine merchandise to determine accuracy of complaint. May follow up on 

recommended adjustments to ensure customer satisfaction. May key information into computer to obtain 

computerized records. May trace missing merchandise and be designated Tracer Clerk (clerical). May investigate 

overdue and damaged shipments or shortages in shipments for common carrier and be designated over-short-anddamage clerk (clerical). May be designated according to type of complaint adjusted as bill adjuster (clerical); 

merchandise; adjustment clerk (retail trade); service investigator (utility tel. & tel.).” 

4

 5 U.S.C. § 8115. 

5 Albert C. Shadrick, 5 ECAB 376 (1953); see Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Reemployment and Determining Wage-Earning Capacity, Chapter 2.814.2 (April 1995). 

6

 OWCP indicated that appellant’s salary as of February 3, 1978, the date he stopped working, was $254.40 per 

week, that his current adjusted pay rate for his job on the date of injury was $756.54, and that appellant was 

currently capable of earning $538.80 per week, the rate of a customer complaint clerk. It therefore determined that 

he had a 71 percent wage-earning capacity, an adjusted wage-earning capacity of $180.62, and that his current 

adjusted compensation rate, per four-week period, was $638.00. 
5

By decision dated February 6, 2014, an OWCP hearing representative affirmed the 

June 17, 2013 decision. She found that the rehabilitation counselor performed a thorough 

assessment of appellant’s skills and confirmed that the proposed customer complaint clerk job 

was appropriate for appellant. OWCP hearing representative further found that she sufficiently 

documented her repeated attempts to contact appellant regarding the start date for the six-month 

computer training program after he failed to begin the course on April 29, 2013. She therefore 

found that OWCP properly reduced his compensation under Section 8113(b) based on his failure 

to cooperate and show good cause for failing to attend the training program. 

On March 11, 2014 OWCP informed appellant, as it had informed him regularly since 

1979, that federal regulations required him to submit an affidavit of any earnings and 

employment during the previous year and that a Form EN-1032 was enclosed for that purpose. It 

advised him to fully answer all questions on the Form EN-1032 and return the statement within 

30 days or his benefits would be suspended. The letters were sent to appellant’s address of 

record. Appellant did not respond. 

By decision dated April 14, 2014, OWCP suspended appellant’s compensation benefits, 

effective May 4, 2014, for failing to submit the Form EN-1032 as requested. It noted that, if he 

completed and returned an enclosed copy of the form, his compensation benefits would be 

restored retroactively to the date they were suspended. 

LEGAL PRECEDENT -- ISSUE 1 

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.7

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. [OWCP] 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 

 7

 5 U.S.C. § 8113(b). 
6

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

direction of [OWCP].”8

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.9

ANALYSIS -- ISSUE 1 

Appellant was referred to vocational rehabilitation after Dr. Frey reported on March 6, 

2012 that he could return to work in a sedentary capacity with restrictions on walking and 

standing, and Dr. Ha’Eri reported on January 2, 2013 that appellant could work an eight-hour 

day, with restrictions. The vocational rehabilitation counselor properly identified the positions of 

customer complaint clerk and receptionist as within appellant’s medical restrictions and 

recommended a three-month training program to vocationally prepare appellant for these 

positions. 

The record establishes that appellant was offered repeated opportunities to complete the 

proposed vocational rehabilitation plan; i.e., attend the training course with the Institute of 

Network Technology, but he did not attend the scheduled start of class on April 29, 2013 and 

refused to either sign the plan documents or begin training. OWCP instructed appellant in its 

April 30, 2013 letter to contact the rehabilitation counselor to make the necessary arrangements 

to start and complete the approved three-month training program at the Institute of Network 

Technology by July 19, 2013 and to make up all time lost due to his nonparticipation. It also 

advised him that, if he believed he had sufficient reason or justification for not participating in 

the training program, he should provide his reasons in writing along with any supporting 

documentation within 30 days. 

Appellant initially indicated that he wanted to pursue jobs as a security guard, but the 

vocational rehabilitation counselor properly determined that appellant’s medical restrictions 

regarding walking and standing and operating a motor vehicle effectively ruled out such work. 

He asserted that he declined to start the course because he was not given the opportunity to enroll 

in courses of his choosing when he visited the Institute of Network Technology and he believed 

he had communication difficulties with the rehabilitation counselor. However, appellant did not 

provide sufficient reason or justification for not participating in the training program. The 

rehabilitation counselor stated in her May 24, 2013 report that appellant did not return her 

e-mails and telephone messages in which she attempted to resolve his concerns and place him in 

the recommended training course. There is no evidence that appellant’s failure to fully 

participate in the rehabilitation program, particularly in his failure to participate in the training 

course, was based on “good cause.”10 The reduction of appellant’s compensation was based on a 

determination of what appellant’s income would have been if he had fully participated in 

vocational rehabilitation efforts. For these reasons, OWCP properly reduced appellant’s 

 8

 20 C.F.R. § 10.519(a). 

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

10 See Michael D. Snay, 45 ECAB 403, 410-12 (1994). 
7

compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity based on the 

customer complaint position. 

OWCP properly applied the principles set forth in the Shadrick11 decision to determine 

that appellant’s compensation rate should be adjusted to $638.00 based on his wage-earning 

capacity. 

OWCP properly found that appellant was no longer totally disabled as a result of his 

accepted conditions, and it followed established procedures for determining appellant’s 

employment-related loss of wage-earning capacity. The Board therefore finds that OWCP met 

its burden of justifying a reduction in appellant’s compensation, because he failed to participate 

in vocational rehabilitation. 

LEGAL PRECEDENT -- ISSUE 2 

FECA authorizes the Secretary of Labor to require a partially disabled employee to report 

his or her earnings from employment or self-employment, by affidavit or otherwise, in the 

manner and at the times the Secretary specifies.12 

Under section 10.528 of OWCP’s implementing federal regulations, an employee in 

receipt of compensation benefits must complete an affidavit as to any work or activity indicating 

an ability to work which the employee has performed for the prior 15 months.13 If an employee 

who is required to file such a report fails to do so within 30 days of the date of the request, his or 

her right to compensation for wage loss is suspended until OWCP receives the requested report. 

At that time, OWCP will reinstate compensation retroactive to the date of suspension if the 

employee remains entitled to compensation.14

ANALYSIS -- ISSUE 2 

On March 11, 2014 OWCP provided appellant with a Form EN-1032 the same form he 

has regularly received since 1979, and advised him that federal regulations required him to 

answer all questions concerning his employment and earnings. It properly notified him that, if 

he did not completely answer all questions and return the statement within 30 days, his benefits 

would be suspended. Appellant did not respond prior to the April 14, 2014 OWCP decision. 

Based on the evidence of record, the Board finds that OWCP properly suspended 

appellant’s compensation benefits effective May 11, 2014 pursuant to 20 C.F.R. § 10.528.15 

 11 Albert C. Shadrick, 5 ECAB 376 (1953).

12 5 U.S.C. § 8106(b). 

13 20 C.F.R. § 10.528. 

14 Id.; see also 20 C.F.R. § 10.525. 

15 J.J., Docket No. 09-1724 (issued March 1, 2010). See also James A. Igo, 49 ECAB 189 (1997). 
8

CONCLUSION 

The Board finds that OWCP properly reduced appellant’s compensation under 5 U.S.C. 

§ 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in 

vocational rehabilitation efforts. The Board further finds that OWCP properly suspended 

appellant’s compensation benefits for failing to submit information on a Form EN-1032, as 

required. 

ORDER 

IT IS HEREBY ORDERED THAT the April 14 and February 6, 2014 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: November 10, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board