United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.W., Appellant 

and 

DEPARTMENT OF THE ARMY, ARMY 

CORPS, Wilmington, VA, Employer 

__________________________________________ 

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Docket No. 15-1657 

Issued: February 9, 2016 

Appearances: Case Submitted on the Record

Charles E. Samuels, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 3, 2015 appellant, through counsel, filed a timely appeal from a June 17, 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 to zero for 

failing to cooperate with the early stages of vocational rehabilitation. 

On appeal, appellant, through counsel, argues that appellant cooperated with the 

vocational rehabilitation program but was unable to return to work due to health problems. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant initially requested an oral argument before the Board. On August 25, 2015 the Board received 

appellant’s notice that he was withdrawing his request for oral argument. At appellant’s request, the appeal will 

proceed on the record. 
2

FACTUAL HISTORY 

On July 27, 1994 appellant, then a 43-year-old electrical worker, filed a traumatic injury 

claim (Form CA-1) alleging that on July 26, 1994 he injured his back and left knee when he 

tilted a pile of steel over to look for a brace to hold a light fixture and the weight of the steel 

pushed him over. OWCP accepted that this incident resulted in a crush injury of the left leg and 

a lumbar sprain. It later accepted appellant’s claim for radiculopathy. Appellant worked 

intermittently following the injury, until he stopped work completely on May 25, 1996, and was 

treated with medication, physical therapy, injections, work limitations, and pain management. 

He received disability compensation benefits and his claim was placed on the periodic rolls for 

payment of benefits on June 16, 2002. 

In a March 21, 2012 progress report, Dr. Michael Decker, appellant’s treating Boardcertified physiatrist, listed appellant’s diagnoses as lumbar radiculitis and low back pain. He 

noted that he was treating appellant with Vicodin. Dr. Decker indicated that appellant’s back 

and leg pain was aggravated by walking, climbing stairs, bending, and driving. He noted that 

both back and leg pain were alleviated by medications. Dr. Decker listed appellant’s walking 

tolerance as 15 minutes. He noted that appellant was not working. 

On June 4, 2012 OWCP referred appellant to Dr. William C. Andrews, Jr., a Boardcertified orthopedic surgeon, for a second opinion. In a June 22, 2012 report, Dr. Andrews 

diagnosed crush injury to the left leg with residual radiculopathy. He noted that appellant’s 

complaints were subjective with no specific objective medical findings. Dr. Andrews believed 

that appellant’s disability was due to his July 26, 1994 employment injury and prolonged 

deconditioning. He noted chronic pain syndrome treated with narcotics, pain stimulator, and that 

he was tremendously deconditioned. Dr. Andrews noted a poor prognosis, forecast that he 

would never return to work, and that no further treatment would be beneficial. He noted that 

appellant barely walked and could not walk without a large walking stick. Dr. Andrews did not 

believe appellant could even work in a sedentary capacity, noting that appellant claimed that he 

has difficulty sitting for prolonged periods of time. 

In a July 27, 2012 Investigator Activity Summary, Jay Ghrigsby noted that during the 

period March 5 to 8, 2012, he observed appellant driving his vehicle and walking without a cane. 

From April 9 to 12, 2012, he observed appellant working on his yard. Specifically Mr. Ghrigsby 

noted that appellant was seen lifting large rocks and using a shovel, bending, squatting, and using 

a hammer as he constructed a rock wall. He noted that the rock wall was on an incline in 

appellant’s yard and he was seen walking up and down the area without the assistance of a cane. 

In a July 27, 2012 report, Dr. Andrews noted that he was asked to review the surveillance 

video from April 9 and 10, 2012, and that, after review of this video, he reviewed his previous 

report. He stated, “Obviously [appellant’s] subjective complaints are not consistent with this 

video.” Dr. Andrews noted that he was seen walking without an aid even though he was walking 

with an aid when he came for his doctor’s visit. He noted that appellant was seen carrying cinder 

blocks and stones and building a stone wall. Dr. Andrews noted that appellant bends, twists, 

stoops, kneels, and uses a shovel even while kneeling. He noted that, while appellant does walk 

slowly, he obviously is functioning at a light capacity level if not higher. Dr. Andrews noted that 

appellant was limited to light-duty capacity. He recommended a functional capacity evaluation. 

In an October 18, 2012 addendum, Dr. Andrews noted that he reviewed the functional capacity 
3

evaluation performed by Mark Waligora, a physical therapist, on September 21, 2012. He 

concluded that appellant is capable of working in a medium capacity. In an attached work 

capacity evaluation form, Dr. Andrews noted that appellant could sit for two hours at a time for a 

total of five to six hours a day, that pushing and pulling was limited to three to four hour shifts 

and 30 pounds, and that lifting was limited to 28 pounds. 

On January 14, 2013 OWCP referred appellant for the development of a vocational 

rehabilitation program. A certified rehabilitation counselor (rehabilitation counselor), Charles 

DeMark, indicated that he initially met with appellant at his home on January 31, 2013. He 

stated that overall appellant was cooperative, and signed releases. The rehabilitation counselor 

stated that appellant told him that his back pain was severe and that he could not return to work 

and that he had arthritis in all joints and used a cane at all times. He noted increasing pain with 

any physical activity and stated that he can only stand about 5 to 10 minutes and walk 30 

minutes. The rehabilitation counselor reported that appellant could not lift more than 10 to 20 

pounds and cannot climb. 

In a March 12, 2013 report, Dr. Decker again diagnosed lumbar radiculitis and low back 

pain. In describing appellant’s symptoms, he noted that appellant’s back pain was alleviated by 

medications and that his leg pain was alleviated by sitting and medications. Dr. Decker listed 

appellant’s standing tolerance as 10 minutes and walking tolerance as 10 minutes. He noted that 

appellant did not use an assistive device for ambulation. 

Vocational testing was conducted on May 17, 2013 by Heidi N. Chaney, a certified 

rehabilitation counselor. She noted that appellant was a 62-year-old man who had not worked in 

nearly 19 years, and presented himself as totally disabled. Ms. Chaney noted that appellant was 

a high school graduate of average intelligence and lived in a rural area. She noted that appellant 

showed very little interest in work activity of any kind. Ms. Chaney recommended that appellant 

participate in short-term training to adjust to a return to work, given his long-term absence from 

the work force, perhaps through on-the-job training and/or work adjustment training, such as that 

offered through Goodwill Industries. 

In a June 3, 2013 report, Mr. DeMark stated that appellant told him on May 9, 2013 that 

he would not sign up with the Virginia Employment Commission and would not look for any 

light-duty work. Appellant stated that his doctor considered him to be disabled and unable to 

return to work. He stated that he had not looked for any work in over 17 years and that he was 

not going to begin looking for work now. Appellant told the rehabilitation counselor that he did 

not believe that he had the authority to ask him to look for work. The rehabilitation counselor 

indicated that appellant was not interested in any training. Appellant stated that he would not 

seek any work as he felt he was disabled and that he would not accept any work if offered. He 

stated that it was basically the rehabilitation counselor’s job to find a job for him and that he was 

not able to work even a four-hour day. 

In a June 10, 2013 report, Charles E. Terry, Jr., a vocational rehabilitation specialist, 

reported that appellant had obstructed the development of a vocational rehabilitation plan by 

reporting that he was not interested in vocational rehabilitation or returning to work. By letter 

dated June 3, 2013, Mr. DeMark confirmed that appellant did not register with the Virginia 

Employment Commission or apply for any appropriate light-duty work as he requested on 

May 9, 2013. He noted that appellant told him that he was not required to look for work because 
4

he was disabled and unable to work, and that he would not look for any work unless it was 

ordered by OWCP. Mr. DeMark stated that this letter was to confirm that he told appellant that 

he was responsible to look for work. 

By letter dated June 21, 2013, OWCP advised appellant that the medical evidence of 

record showed that he was not totally disabled and that without good cause he had failed to apply 

for and undergo vocational rehabilitation when directed in keeping with 5 U.S.C. § 8113(d). It 

also informed appellant that, if he failed to show good cause for his refusal to participate in the 

essential preparatory efforts as described in 20 C.F.R. § 10.519, OWCP would assume, in the 

absence of evidence to the contrary, that the vocational rehabilitation effort would have resulted 

in a return to work with no loss of wage-earning capacity, and compensation will be reduced 

accordingly. Appellant was directed to contact both OWCP and the rehabilitation specialist 

within 30 days from the date of the letter to make a good effort to participate in the rehabilitation 

effort to return to gainful employment. He was advised that, if he believed that he had good 

reason for not participating in this effort, he should advise OWCP within 30 days. 

By letter dated July 15, 2013 to OWCP, appellant indicated that he was willing to make 

an attempt to return to work to see if he would be successful. 

In a September 10, 2013 note, Mr. DeMark noted that there had been a delay and that the 

previous employer had been in touch with him with regard to a return to work offer. He stated 

that he was hopeful that the issues could be resolved in the next reporting period. 

Appellant continued to submit reports from Dr. Decker. In reports dated September 13 

and November 13, 2013, Dr. Decker again noted that appellant’s standing tolerance was 10 

minutes and walking tolerance was 10 minutes. 

In a report dated October 28, 2013, Mr. DeMark noted that on October 21, 2013 he sent 

appellant a letter scheduling a meeting at his home at 1:00 p.m. on October 25, 2013. He 

indicated that he called appellant on October 21, 23, and 25, 2013 to confirm the plans to meet, 

leaving messages on his voicemail. Mr. DeMark stated that appellant did not answer the 

telephone or call him back as requested. On October 25, 2013 he drove to appellant’s home, but 

appellant was not there. Mr. DeMark left another telephone message with regard to the broken 

appointment. On October 28, 2013 he called appellant’s home but there was no answer, so he 

left another message. Mr. DeMark indicated that appellant had not responded to his requests to 

meet in person or to speak by telephone. He stated that a rehabilitation plan had been developed 

to commence on November 4, 2013, but that, due to appellant’s lack of cooperation, that plan 

would be delayed. Mr. DeMark contended that appellant was not cooperating with him and his 

lack of cooperation was delaying his return to work. 

On November 1, 2013 OWCP advised appellant that he had impeded the rehabilitation 

efforts on his behalf. It further advised him that, under section 8113(b) of FECA, his 

compensation could be reduced prospectively based on what would have been his wage-earning 

capacity, had he not failed to undergo vocational rehabilitation. OWCP directed appellant to 

undergo a recommended training program or, if he believed that he had sufficient justification to 

not participate, he should provide his reasons with supporting documentation within 30 days, 

otherwise the vocational rehabilitation efforts would be terminated and his compensation would 

be reduced to zero as contemplated by 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519. 
5

By letter to OWCP dated November 7, 2013, appellant stated that he did not fail to keep 

any appointment because he had no knowledge of the appointment. 

In a November 18, 2013 note, Mr. DeMark indicated that he met with appellant on 

November 8, 2013, who had agreed to a four-week prevocational work adjustment training 

program as part of the return to the work rehabilitation process. He noted that the program 

would take place at Goodwill Industries from December 2, 2013 to January 16, 2014. 

In a November 26, 2013 report, Mr. DeMark stated that appellant reported at 

approximately 1:00 p.m. for his interview with Ms. Oliver at Goodwill Industries. During the 

interview, appellant was asked what he hoped to accomplish and he answered “Nothing, I don’t 

want to go to work. I can’t do this and they are forcing me to do this.” Later in the interview he 

asked Ms. Oliver if Goodwill Industries had insurance. Appellant gave Ms. Oliver an office visit 

note of November 13, 2013 from Dr. Decker which included restrictions of no standing more 

than 10 minutes. 

Mr. DeMark opined that appellant’s behavior during the November 18, 2013 interview 

indicated a lack of cooperation, contrary to the agreement he signed. He reported that the 

likelihood of a successful work adjustment training program with Goodwill Industries was poor, 

and would not succeed without appellant’s cooperation and effort. 

In a December 4, 2013 report, Mr. DeMark indicated that, although appellant did report 

for his first day of training, he was very uncooperative with his training. He noted that 

Ms. Oliver reported that during a six-hour shift he completed the equivalent of two hours of 

work. Appellant told Ms. Oliver that he needed to go to the emergency room for numbness in 

his feet and legs and insisted that Goodwill Industries was responsible. He reported for the 

second day and again complained that he needed to go to the emergency room. Ms. Oliver 

called Mr. DeMark at 11:25 a.m. on the second day and stated that she was terminating the 

training, and that appellant was no longer needed at Goodwill Industries. 

In a December 4, 2013 report, Dr. Decker noted that he saw appellant with a complaint of 

back pain with bilateral radiation, located in the middle lumbar, lower lumbar, midline, right side 

and left side. He noted that the pain was dull, stabbing, and with a deep ache and associated 

symptoms of numbness and tingling. Dr. Decker noted that appellant went to the emergency 

department on November 27, 2013 due to numbness in both legs. He listed appellant’s 

diagnoses as lumbar radiculitis and low back pain. Dr. Decker again noted that appellant’s 

standing and walking tolerance was 10 minutes. 

By decision dated December 4, 2013, OWCP reduced appellant’s compensation to zero 

for failure to cooperate with the vocational rehabilitation program. The reduction was to become 

effective December 15, 2013. OWCP noted that the reduction would continue until he made a 

good faith effort to undergo vocational rehabilitation training or to share good cause for his 

failure to comply. 

By letter dated December 11, 2013, appellant stated that he disagreed with the decision. 

He argued that he did cooperate and made an attempt to complete every assignment he was given 

until the pain level rose, his feet became numb, and he went to the emergency room when he was 

no longer able to stand the pain. Appellant noted that on Tuesday when he arrived home 
6

Ms. Oliver called and informed him that things did not work out and that he did not need to 

return to work. 

On December 12, 2013 appellant requested an oral hearing before an OWCP hearing 

representative. 

New evidence was submitted with regard to the vocational rehabilitation efforts. In an 

October 21, 2013 memorandum, Mr. DeMark indicated that appellant’s previous employer had 

indicated a willingness to return him to work at their facility, but that as he had been out of work 

for over 17 years, he recommended a work adjustment training program to help prepare appellant 

for a successful return to work. He noted that Goodwill Industries has agreed to provide a work 

adjustment training program, beginning with five hours a day the first week, and culminating in 

eight hours per day during week four. Mr. DeMark also noted that a fifth week was scheduled in 

the event that he needed to make up any missed days due to medical appointments, illness, 

personal reasons, or holidays. The position would involve appellant hanging clothes, organizing 

shelves, and providing some light cleaning. After completing the work adjustment program, 

appellant was to return to work with his prior employer. 

At the hearing held on May 5, 2015, counsel argued that appellant was injured in 1994 

and for close to 18 years was never given an opportunity to be rehabilitated. He contended that 

during this period appellant was seen by the same physician, Dr. Decker, who opined that 

appellant was able to work with certain limitations and that the second opinion physician saw 

appellant for less than half an hour. Counsel also argued that appellant was at first happy to 

return to work, but that the employing establishment, upon receiving Dr. Decker’s report, 

rescinded the offer of employment. He argued that the job requirements at Goodwill exceeded 

the limitations as set by Dr. Decker and that appellant was honest when he informed Ms. Oliver 

of his limitations and inability to perform the job. Counsel disagreed that appellant refused to 

cooperate in any way with vocational rehabilitation. 

By decision dated June 17, 2015, OWCP’s hearing representative affirmed the 

December 4, 2013 OWCP decision. The hearing representative noted that appellant testified at 

the hearing that he would cooperate in vocational rehabilitation efforts, and that once this is 

confirmed by the vocational rehabilitation specialist or counselor, OWCP would reinstate 

appellant’s compensation effective May 5, 2015, the date of the hearing. 

LEGAL PRECEDENT 

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

whose disability is compensable to undergo vocational rehabilitation.3

 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 

 3

 5 U.S.C. § 8104(a). 
7

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

5 U.S.C. §8113(b).4

 Section 10.519 of OWCP’s regulations provide: 

“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 wage-earning 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.”5

 

ANALYSIS 

OWCP accepted appellant’s claim that a July 26, 1994 employment injury resulted in a 

crush injury of the left leg and lumbar sprain and radiculopathy. Appellant was treated with 

medication, physical therapy, injections, work limitations, and pain management. Although 

Dr. Andrews, the second opinion physician, initially opined that appellant would never return to 

work, he changed his opinion after reviewing video surveillance of appellant which included 

appellant building a rock wall in his yard. In an October 18, 2012 report, Dr. Andrews opined 

that appellant could sit for two hours at a time for five to six hours a day, that pushing and 

pulling were limited to three- to four-hour shifts and 30 pounds, and that lifting was limited to 28 

pounds. Dr. Decker listed more severe restrictions, noting that appellant’s standing tolerance and 

walking tolerance was 10 minutes each. However, Dr. Decker’s limitations appear to be based 

largely on appellant’s indications as to how long he could stand and walk and not on any 

independent medical basis. 

OWCP referred appellant for vocational rehabilitation where his counselor, Mr. DeMark, 

attempted to develop a rehabilitation plan for appellant. However, the record reflects that 

appellant had a hostile attitude with regard to working with vocational rehabilitation. 

Mr. DeMark noted that when he interviewed appellant on May 9, 2013 appellant indicated that 

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

5

 20 C.F.R. § 10.519. 
8

he would not sign up with the Virginia Employment Commission and would not look for any 

light-duty work. Appellant stated that his doctor considered him disabled, that he had not looked 

for work for 17 years and was not going to start looking for work. Mr. DeMark also noted that 

appellant indicated that he was not interested in any training, that he felt he was disabled, and 

that he would not accept any work that was offered to him. On June 3, 2013 he confirmed that 

appellant did not register with the Virginia Employment Commission or apply for any 

appropriate light-duty work, as instructed at the May 9, 2013 meeting. OWCP then issued a 

letter on June 21, 2013 advising appellant to participate in vocational rehabilitation, and in a 

July 15, 2013 letter to OWCP, appellant indicated that he was willing to try to work. However, 

appellant continued to refuse to cooperate. He was not at home for a scheduled meeting with his 

counselor on October 25, 2013, despite the fact that Mr. DeMark left several messages for him. 

Mr. Demark noted that appellant did not respond to multiple telephone calls in October 2013. 

Appellant was again advised on November 7, 2013 that refusal to participate in an OWCPapproved training program constituted refusal to participate in the necessary early stages of 

vocational rehabilitation and could result in sanctions. 

On or about November 18, 2014, appellant did agree to a prevocational adjustment 

training work program at Goodwill Industries that was to take place from December 2, 2013 to 

January 16, 2014. However, he again displayed a lack of cooperation with Goodwill Industries 

and the vocational rehabilitation process. During his initial interview with Ms. Oliver at 

Goodwill Industries, appellant, when asked what he hoped to accomplish, stated, “Nothing, I 

don’t want to go to work. I can’t do this and they are forcing me to do this.” Later in the 

interview he asked Ms. Oliver if Goodwill Industries had insurance. Although appellant reported 

to Goodwill Industries on December 2, 2013, his behavior continued to be one of 

noncooperation. He did very little work, and left to allegedly go the emergency room on 

December 2, 2013, while complaining of numbness in his feet and legs and insisting that 

Goodwill Industries was responsible. On the second day appellant again indicated that he went 

to the emergency room. The Board notes that although he alleged that he left the assignment at 

Goodwill Industries to go the emergency room, there is no evidence in the record that he actually 

went to the emergency room on these dates. No hospital records were submitted evincing that 

appellant sought medical attention at the emergency room on December 2 or 3, 2013. There is a 

report from Dr. Decker on December 4, 2013, but Dr. Decker made no comment with regard to 

appellant’s work with Goodwill Industries or to any aggravation of appellant’s condition in the 

prior two days. Accordingly, the Board finds that appellant did not cooperate with the vocational 

rehabilitation efforts in that he did not cooperate with Ms. Oliver and Mr. DeMark in their 

attempts to vocationally rehabilitate him for a return to work. 

The Board finds that OWCP properly reduced appellant’s compensation to zero for his 

failure to cooperate in the early stages of vocational rehabilitation efforts.6

 Appellant has 

engaged in a consistent lack of cooperation with Mr. DeMark and vocational rehabilitation 

efforts. He was advised twice that his failure to cooperate with vocational rehabilitation could 

result in sanctions. Although appellant reported to Goodwill Industries for his rehabilitation 

assignment, the evidence indicates that he failed to cooperate with Ms. Oliver at Goodwill 

Industries in performing the assigned tasks. He has not submitted sufficient rationalized medical 

 6 See B.W., Docket No. 14-372 (issued November 12, 2014). 
9

evidence to support his claimed inability to continue with the vocational rehabilitation process.7

 

Appellant’s argument that the assignment was not within his limitations and resulted in further 

injury is not supported by the evidence of record. 

Appellant may submit new evidence or argument with a written request for 

reconsideration within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 

20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP properly reduced appellant’s compensation to zero for 

failing to cooperate with the early stages of vocational rehabilitation. 

ORDER 

IT IS HEREBY ORDERED THAT the June 17, 2015 merit decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 9, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 7 See S.E., Docket No. 12-1558 (issued February 26, 2013).