United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.M., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

U.S. COAST GUARD, Baltimore, MD, Employer 

__________________________________________ 

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Docket No. 15-1236 

Issued: February 18, 2016 

 

Appearances: 

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 12, 2015 appellant filed a timely appeal from an April 24, 2015 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

ISSUE 

The issue is whether OWCP properly reduced appellant’s compensation effective 

October 19, 2014 under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he 

continued to participate in vocational rehabilitation efforts. 

 

 1 5 U.S.C. § 8101 et seq. 

2

 Appellant requested oral argument before the Board. In a November 13, 2015 order, the Board exercised its 

discretion and denied appellant’s request, noting that his arguments on appeal could be adequately addressed in a 

Board decision based on a review of the case record as submitted. 
2

LEGAL PRECEDENT 

 On June 13, 1989 appellant, then a 42-year-old ship fitter, filed a traumatic injury claim 

(Form CA-1) alleging that he sustained a back injury on that date due to pushing heavy 

equipment at work. He stopped work on June 13, 1989 and OWCP accepted that he sustained a 

cervical strain.3

 In a report dated October 18, 201, Dr. Robert Draper, a Board-certified orthopedic 

surgeon serving as an OWCP referral physician, determined that appellant was partially disabled 

due to his June 13, 1989 employment injury. He found that appellant could work on a full-time 

basis with various work restrictions, including lifting no more than 50 pounds occasionally and 

no more than 25 pounds frequently. Appellant could stand and walk for six hours out of an 

eight-hour workday and sit for six hours out of an eight-hour workday. Dr. Draper 

recommended that appellant avoid bending, stooping, and crawling. 

In late-October 2013, appellant was referred for participation in an OWCP-administered 

vocational rehabilitation program. Appellant’s vocational rehabilitation counselor reported that a 

vocational rehabilitation plan had been developed based upon appellant’s experience, education, 

and medical restrictions. Vocational rehabilitation efforts were placed in services interrupted 

status on February 6, 2014 for 60 days.4

 At the conclusion of the 60 days, vocational 

rehabilitation was scheduled to resume. On May 14, 2014 appellant’s vocational rehabilitation 

counselor reported that appellant failed to participate in or obstructed the approved vocational 

rehabilitation program. On May 1, 2014 appellant had been contacted by the rehabilitation 

counselor to notify him that rehabilitation efforts were set to resume. At that time, he advised his 

rehabilitation counselor via telephone that he would not participate in the vocational 

rehabilitation program. The rehabilitation counselor reported that vocational counseling was 

attempted, but appellant abruptly ended the telephone call. She concluded that appellant had 

obstructed the vocational rehabilitation efforts. 

By letter dated June 25, 2014, OWCP advised appellant of its determination that he had 

failed to participate in vocational rehabilitation efforts. It informed appellant that an individual 

who refuses or impedes a vocational rehabilitation effort without good cause after testing has 

been accomplished will have his or her compensation reduced based on what would have been 

his or her wage-earning capacity had the training been successfully completed. OWCP directed 

appellant to make a good faith effort to participate in the rehabilitation effort within 30 days or, if 

he believed he had good cause for not participating in the effort, to provide reasons and 

supporting evidence of such good cause within 30 days. It indicated that if these instructions 

were not followed within 30 days action would be taken to reduce his compensation. 

 3

 Appellant received disability compensation on the periodic rolls beginning June 16, 2002. 

4

 Although appellant participated in the early stages of the vocational rehabilitation process, his case was placed 

in services interrupted status by his rehabilitation counselor due to appellant’s own decision to suspend participation 

in the program. 
3

Appellant submitted a July 3, 2014 medical report indicating that on that date he 

underwent a left S1 disc transforaminal epidural steroid injection and a left L5-S1 transforaminal 

epidural steroid injection. 

Appellant’s vocational rehabilitation counselor determined that, had he continued to 

participate in rehabilitation efforts, appellant would have been able to work as a contract 

specialist.5

 The position, classified as light in nature, involved negotiating with suppliers to draw 

up procurement contracts and required occasional lifting of up to 20 pounds and engaging in 

occasional reaching, handling, and fingering. 

 In an October 2, 2014 decision, OWCP 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. It determined that appellant had failed, without good cause, to 

undergo vocational rehabilitation as directed. With respect to his wage-earning capacity, OWCP 

further found that, if appellant had participated in good faith in vocational rehabilitation, he 

would have been able to perform the position of contract specialist. 

 Appellant requested reconsideration. He submitted several medical reports, including 

May 13, June 4, and July 8, 2014 reports in which attending physicians indicated that he 

complained of chronic low back pain and left-sided S1 radiculopathy symptoms. The findings of 

a May 19, 2014 magnetic resonance imaging (MRI) scan showed mild degenerative disc disease 

of the low back. 

 By decision dated April 24, 2015, OWCP affirmed its October 2, 2014 decision adjusting 

appellant’s compensation effective October 19, 2014 for failure to participate in vocational 

rehabilitation efforts. 

LEGAL PRECEDENT 

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.6 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 

 5

 The position is described in the Department of Labor’s Dictionary of Occupational Titles (DOT) and bears the 

DOT number 162.117-018. A state labor market survey from August 2014 revealed that the entry pay level for the 

position was $493.23 per week and that the position was reasonably available in appellant’s commuting area. 

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

7

 5 U.S.C. § 8113(b). 
4

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 OWCP 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 OWCP.”8

ANALYSIS 

 OWCP accepted that on June 13, 1989 appellant sustained a back injury due to pushing 

heavy equipment at work. In late-October 2013, appellant was referred for participation in an 

OWCP-sponsored vocational rehabilitation program. In an October 2, 2014 decision, OWCP 

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. It determined that 

appellant had failed, without good cause, to undergo vocational rehabilitation as directed. With 

respect to his wage-earning capacity, it further found that, if appellant had participated in good 

faith in vocational rehabilitation, he would have been able to perform the position of contract 

specialist. In an April 24, 2015 decision, OWCP affirmed its October 2, 2014 decision adjusting 

appellant’s compensation effective October 19, 2014. 

The Board finds that OWCP properly reduced appellant’s compensation effective 

October 19, 2014 under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he 

continued to participate in vocational rehabilitation efforts. 

On May 1, 2014 appellant had been contacted by his vocational rehabilitation counselor 

to notify him that rehabilitation efforts were set to resume after period of interruption. At that 

time, appellant advised his rehabilitation counselor via telephone that he would not participate in 

the OWCP-administered vocational rehabilitation program. The rehabilitation counselor 

reported that vocational counseling was attempted, but that appellant abruptly ended the 

telephone call. In a report dated May 14, 2014, she concluded that appellant failed to participate 

in or obstructed the approved vocational rehabilitation program. The Board finds that these facts 

establish appellant’s failure to participate in vocational rehabilitation efforts. 

Prior to the adjustment of his compensation, OWCP sent appellant a June 25, 2014 letter 

in which it advised him of the consequences of continuing his failure to participate in vocational 

rehabilitation efforts. Appellant was provided 30 days to begin participating in vocational 

rehabilitation efforts or to submit evidence establishing good cause for not doing so. He did not, 

however, participate in vocational rehabilitation efforts or provide good cause for not doing so 

within 30 days of OWCP’s June 25, 2014 letter. Appellant submitted medical documentation in 

response to the June 25, 2014 letter, but this evidence does not show that he was physically 

 

 8 20 C.F.R. § 10.519(a). 
5

unable to participate in vocational rehabilitation efforts or otherwise establish that he had good 

cause not to do so. He submitted several medical reports from mid-2014 showing that he was 

being treated for mild degenerative disc disease of the low back. However, none of these reports 

showed that he was unable to work or that he was unable to participate in vocational 

rehabilitation efforts.9

 On appeal appellant argued that his willingness to participate in a functional capacity 

evaluation showed his participation in vocational rehabilitation efforts.10 However, regardless of 

whether appellant was willing to participate in a functional capacity evaluation, he engaged in 

actions constituting a failure to participate in vocational rehabilitation efforts, including the 

above-described interactions with his vocational rehabilitation counselor. 

 A review of the record indicates that appellant was offered an opportunity to complete the 

agreed upon vocational rehabilitation plan. There is no evidence that appellant’s failure to fully 

participate in the rehabilitation program, particularly his clear failure to exercise a reasonable 

standard of cooperation, was based on good cause.11 For these reasons, 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 record also reflects that 

OWCP properly determined that, if appellant had continued to participate in vocational 

rehabilitation efforts, he would have been able to earn wages as a contract specialist.12

CONCLUSION 

The Board finds that OWCP properly reduced appellant’s compensation effective 

October 19, 2014 under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he 

continued to participate in vocational rehabilitation efforts. 

 9

 In an October 18, 2013 report, Dr. Draper, a Board-certified orthopedic surgeon serving as an OWCP referral 

physician, determined that appellant was partially disabled due to his June 13, 1989 employment injury. Dr. Draper 

found that appellant could work on a full-time basis with various work restrictions, including lifting no more than 50 

pounds occasionally and no more than 25 pounds frequently. The Board notes that this report provides the best 

assessment of appellant’s work restrictions around the time he stopped participating in vocational rehabilitation 

efforts in mid-2014. 

10 Appellant indicated that a functional capacity evaluation was not in fact carried out. 

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

12 The Board notes that the physical requirements of the contract specialist position were within appellant’s work 

restrictions and that appellant’s rehabilitation counselor provided an opinion that he would have been vocationally 

capable of performing the position if he had continued participating in vocational rehabilitation efforts. 
6

ORDER 

IT IS HEREBY ORDERED THAT the April 24, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 18, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board