United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.E., Appellant 

and 

DEPARTMENT OF THE ARMY, ARMY 

GARRISON, Fort Shafter, HI, Employer 

__________________________________________ 

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Docket No. 15-0712 

Issued: June 23, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 28, 2015 appellant filed a timely appeal from an August 5, 2014 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 Pursuant to the Federal 

Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

 1

 Under the Board’s Rules of Procedure, in order for OWCP to review the merits of a case an appeal must be filed 

within 180 days from the date of the most recent merit decision of OWCP. An appeal is considered filed upon 

receipt by the Clerk of the Appellate Boards. The Board notes that 180 days from August 5, 2014, the date of the 

OWCP merit decision, was Sunday, February 1, 2015, so the appeal was due on February 2, 2015. Since using 

February 3, 2015, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of 

appeal rights, the date of the postmark is considered he date of filing. The date of the U.S. Postal Service postmark 

is January 28, 2015, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether OWCP met its burden of proof to justify the reduction of appellant’s 

compensation to zero for failing to cooperate with the early stages of vocational rehabilitation. 

On appeal, appellant generally contends that OWCP improperly weighed the medical 

evidence, that the medical evidence was sufficient to reestablish benefits, that the burden to 

terminate benefits was not met, that OWCP’s decision was untimely, that certain statements in 

the decision were incorrect, and that the Social Security Administration (SSA) found appellant 

disabled. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts set forth in the Board’s prior 

decision are incorporated herein by reference.3

 On October 19, 1987 appellant, then a 36-yearold maintenance worker, filed a traumatic injury claim (Form CA-1) alleging that on October 15, 

1987 he was using his ram set nail gun to fasten a 2x4 piece of wood onto a concrete wall when 

he felt a tingling sensation in his left arm and fingers. OWCP accepted his claim for cervical 

strain with radiculopathy, and disc protrusions and osteophytes at C4-5 and C5-6.4

In an April 25, 2013 report, Dr. Jose C. De Leon, appellant’s treating Board-certified 

internist, noted that appellant was suffering from left-sided neck pain with radiation to the left 

hand and fingers as tingling pain and numbness. He opined that the basis of these symptoms was 

due to neck sprain and cervical disc disease with radiculitis. Dr. De Leon noted that appellant 

has suffered from the same neck pain with radiation to the left arm since the injury of 

October 15, 1987, and that it should logically be considered permanent. He further noted that 

degenerative cervical disc disease has a natural course of being stable or getting worse, but that 

appellant will never again be unimpaired. Dr. De Leon further opined that appellant was not 

capable of working any job due to his chronic, daily severe pain. He found that “vocational 

rehabilitation will relieve his pain temporarily and thus will be useless.” Dr. De Leon further 

opined that appellant’s symptoms were permanent and that he should be considered permanently 

disabled. He also noted that Medicare has granted him permanent disability due to these 

symptoms. Dr. De Leon anticipated no further improvement. 

On June 6, 2013 OWCP referred appellant to Dr. Kenneth T. Kaan, a Board-certified 

orthopedic surgeon, for a second opinion. It asked Dr. Kaan to discuss the current status of 

appellant’s neck strain, herniated cervical disc, brachial neuritis, and aggravation of cervical disc 

disease, whether any of appellant’s accepted conditions still persist, whether appellant is able to 

work, how many hours a day appellant is able to work, whether appellant is able to participate in 

 3

 Docket No. 99-1194 (issued March 22, 2001) (the Board vacated OWCP decisions and remanded the case for 

further development of the medical evidence with regard to whether appellant suffered a recurrence of disability on 

November 19, 1987). 

4

 Appellant also filed a claim alleging that on July 3, 1986, while changing a fluorescent light fixture, he reached 

overhead and felt pain in his neck and left shoulder (OWCP File No. xxxxxx099). He was initially treated at the 

occupational health clinic where he was diagnosed with a neck strain. Appellant returned to light duty, and this 

claim was never formally adjudicated. 
3

vocational rehabilitation training, and describe appellant’s limitations. In a July 18, 2013 

opinion, Dr. Kaan noted that appellant’s diagnoses were C5 and C6 radiculopathy, secondary to 

C4-5 left disc herniation, and C5-6 left foraminal stenosis. He explained that a neck sprain/strain 

usually resolves in about six weeks to three months after the onset of symptoms. Dr. Kaan 

opined that appellant had multiple small episodes that exacerbated his cervical disc disease 

leading to axial-type neck symptoms and sometimes right upper extremity pain. He found that 

appellant’s herniated disc at C4-5 could have been caused by an acute injury at work. Dr. Kaan 

noted that appellant’s neurological examination was inconsistent due to the fact that appellant 

had “give away weakness” and was unable to cooperate with the neurological examination. He 

opined that the diffuse weakness in the C6-T1 levels was more likely psychological in nature and 

not related to the original work exposure. Dr. Kaan further noted that, although appellant was 

still complaining of cervical pain, the cervical strain/sprain should have healed by now, but 

cervical disc disease was still present and it is his chronic pain syndrome which is primarily 

responsible for his current symptomatology. He noted that appellant still has cervical disc 

disease and cervical radiculopathy. In a subsequent October 2, 2013 work capacity evaluation, 

Dr. Kaan opined that appellant was able to work eight hours a day with a lifting restriction of 10 

pounds, and pushing pulling limited to 20 pounds. 

On November 5, 2013 OWCP referred appellant’s case for vocational rehabilitation 

services. In a November 15, 2013 letter, it advised him that as Dr. Kaan opined that appellant 

was capable of resuming gainful employment within imposed restrictions, his case was being 

referred for appropriate vocational rehabilitation. OWCP informed appellant that he would be 

contacted by a vocational rehabilitation counselor, and that he was expected to cooperate fully 

with the rehabilitation and reemployment effort. 

In a November 25, 2013 letter to appellant, the vocational rehabilitation counselor 

indicated that she had not been able to contact appellant by telephone, so she was informing him 

by letter that he has an appointment with her on December 6, 2013 at 10:00 a.m. She informed 

him that if he was unable to attend, he should contact her and provide possible dates and times 

that he would be available. 

In a November 26, 2013 letter, appellant stated that he was unable to pursue a return to 

work status as vocational rehabilitation might aggravate his work-related injury and that pursuant 

to the opinion of his treating physician, Dr. De Leon, vocational rehabilitation would be useless. 

In a December 6, 2013 response to appellant’s November 26, 2013 letter, OWCP noted 

that the weight of the medical evidence has been given to the evaluation conducted by Dr. Kaan, 

and that therefore, it has accepted that appellant was capable of working eight hours a day in a 

sedentary capacity. It had not accepted Dr. De Leon’s April 25, 2013 opinion that appellant was 

totally disabled from work. 

In a December 9, 2013 letter to appellant, OWCP indicated that it had been informed by 

the rehabilitation specialist of appellant’s unwillingness to participate in a possible rehabilitation 

effort because he believed that he was too severely disabled to work. It noted that appellant did 

not keep his rehabilitation appointment. OWCP indicated that the medical evidence of record 

showed that he was not totally disabled. It afforded appellant 30 days to make a good faith effort 

to participate in rehabilitation and noted that if, at the expiration of the 30-day period, he has not 
4

complied or provided a good reason for not participating in the effort, the rehabilitation effort 

would be terminated and action would be taken to reduce his compensation under the provisions 

of section 8113(b) of FECA and section 10.519 of the regulations. 

In a statement dated November 23, 2013, but received by OWCP on December 10, 2013, 

appellant discussed his treatment from Dr. De Leon and his conclusion that appellant was unable 

to work any job due to his chronic daily severe pain. He noted various concerns with Dr. Kaan 

including that he was an hour late to his office which backed up all his appointments and that the 

medical records he reviewed were incomplete. Appellant argued that his injury was accepted by 

OWCP 12 years ago and that there was no medical evidence that “may help me return back to 

work.” He noted that he was unable to accept the offer to pursue a return to work status. 

In a December 20, 2013 vocational rehabilitation report, the vocational rehabilitation 

counselor noted her attempts to reach appellant and indicated that appellant did not show up for 

his December 13, 2013 appointment nor did he call. She noted that he had not been agreeable to 

meeting for an initial vocational evaluation. The counselor also forwarded a copy of a 

December 12, 2013 letter wherein appellant informed her, “I will not be attending your last 

minute schedule appointments, due to other obligations. I will give you a call in regards of a 

rescheduled appointment.” 

Appellant sent OWCP a letter dated December 24, 2013, wherein he forwarded March 22 

and April 2, 2001 multiple impairment questionnaires completed by Dr. De Leon, and a copy of 

a July 19, 2001 fully favorable decision by SSA. He contended that this evidence justified his 

disability and outweighs Dr. Kaan’s opinion. 

In a January 13, 2014 decision, OWCP notified appellant that his compensation was 

being reduced to zero due to his refusal to participate in vocational rehabilitation, and that the 

reduction will continue until he, in good faith, undergoes the directed vocational testing or 

showed good cause for not complying with rehabilitation. 

On January 29, 2014 appellant requested a review of the written record. He argued that 

he sent documents that justified his disability and that he was ordered by his primary physician to 

not return to work. Appellant noted that he declined to participate in the rehabilitation program 

for good cause. He contended that removing his benefits after all this time was unfair treatment, 

and would constitute double jeopardy as his claim had already been accepted. Appellant again 

argued that SSA’s decision was fully favorable to him. In support thereof, he resubmitted 

multiple documents by Dr. De Leon, including 2001 questionnaire responses and medical reports 

dated October 25, 2003; March 20, 2007; May 21, 2010; and April 25, 2013. Appellant also 

submitted prior correspondence and decisions from OWCP and another copy of the fully 

favorable decision by SSA. 

In a decision dated August 5, 2014, the hearing representative affirmed the January 13, 

2014 decision of OWCP. 
5

LEGAL PRECEDENT 

 FECA provides that the Secretary of Labor may direct a permanently disabled individual 

whose disability is compensable to undergo vocational rehabilitation.5

 According to 5 U.S.C. 

§ 8113(b) if an individual without good cause fails to apply for and undergo vocational 

rehabilitation when so directed under 5 U.S.C. § 8104, OWCP may, after finding that in the 

absence of the failure the wage-earning capacity of the individual would probably have 

substantially increased, reduce prospectively the monetary compensation of the individual. The 

reduction of compensation is performed 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 to undergo vocational rehabilitation. It is OWCP’s burden of proof with 

respect to any reduction of compensation, including the reduction of compensation pursuant to 

5 U.S.C. § 8113(b).6

 Section 10.519 of OWCP’s regulations provides: 

“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, interviews, testing, counseling, 

functional capacity evaluations, and work evaluations) OWCP 

cannot determine what would have been the employee’s wageearning 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.7

 

 5

 5 U.S.C. § 8104(a). 

6 See D.A., Docket No. 14-375 (issued May 28, 2014). 

7

 20 C.F.R. § 10.519. 
6

ANALYSIS 

Once OWCP has made a determination that an employee is totally disabled as a result of 

an employment injury and pays compensation, it has the burden of justifying a subsequent 

reduction of benefits.8 It reduced appellant’s compensation based on his failure to participate in 

vocational rehabilitation. 

In reaching its conclusion with regard to appellant’s ability to work, OWCP must initially 

determine the employee’s medical condition and work restrictions.9 When it referred appellant 

to vocational rehabilitation, it determined that the weight of the evidence was represented by the 

opinion of the Dr. Kaan, the second opinion physician. Dr. Kaan determined that appellant was 

capable of returning to work eight hours a day with a lifting restriction of 10 pounds and pushing 

and pulling limited to 20 pounds. His opinion differed from appellant’s treating physician, 

Dr. De Leon, who opined that appellant was not capable of working any job due to chronic daily 

severe pain. Dr. De Leon further opined that vocational rehabilitation would be useless. 

It is well established that when there are opposing medical reports of virtually equal 

probative value between an attending physician and a second opinion physician, 5 U.S.C. 

§ 8123(a) requires OWCP refer the case to a referee physician to resolve the conflict.10 The 

Board finds that the medical reports of Dr. De Leon and Dr. Kaan are in equipoise on the issue of 

whether appellant is capable of returning to work and are thus in conflict. The hearing 

representative found Dr. De Leon’s medical opinion was of diminished probative value as he 

was not an appropriate specialist and he did not provide sufficient medical rationale to support 

his opinion of total disability. The Board disagrees as Dr. De Leon is an attending physician 

with Board certification in internal medicine who has provided long-standing medical care for 

the accepted conditions in this claim and has set forth his medical opinion on the relevant issue 

with equal rationale and clarity as the opinion of the second opinion physician, Dr. Kaan. As the 

opposing medical reports are of virtually equal weight and rationale, the Board finds that there is 

an unresolved conflict between Dr. De Leon and Dr. Kaan with regard to appellant’s ability to 

return to work and participate in vocational rehabilitation efforts. 

As there remains an unresolved conflict of medical opinion as to whether appellant is 

physically capable of participating in vocational rehabilitation, OWCP has not met its burden of 

proof to justify termination of appellant’s compensation benefits for failure to participate in 

vocational rehabilitation efforts.11

 8 M.A., 59 ECAB 624, 631 (2008). 

9 L.C., Docket No. 12-972 (issued November 9, 2012). 

10 William C. Bush, 40 ECAB 1064 (1989). 

11 Supra note 9. 
7

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to justify the reduction of 

appellant’s compensation to zero for failure to cooperate with the early stages of vocational 

rehabilitation. 

ORDER 

IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: June 23, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board