United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.T., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Chaparral, NM, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1978

Issued: September 1, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 30, 2019 appellant filed a timely appeal from a July 8, 2019 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits 

of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the July 8, 2019 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether OWCP has met its burden of proof to reduce appellant’s compensation

to zero, effective July 8, 2019, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, due to his 

failure to cooperate with vocational rehabilitation, without good cause.

FACTUAL HISTORY

On May 14, 2012 appellant, then a 37-year-old deportation officer, filed a traumatic injury 

claim (Form CA-1) alleging that on May 11, 2012 he sustained a lower left back condition with 

sharp pain down his left leg when he lost his balance and fell off an office chair, landing on his 

left side, while in the performance of duty. OWCP initially accepted the claim for aggravated 

spondylolisthesis, later expanding acceptance of the claim to include thoracic or lumbosacral 

neuritis or radiculitis and a closed fracture of the lumbar vertebrae without spinal cord injury. On 

October 23, 2013 appellant underwent OWCP-authorized surgical procedures of open reduction 

and internal fixation of L5-S1 spondylolisthesis, L5 and S1 laminectomy, nonsegmental posterior 

instrumentation of L5-S1, posterior lateral fusion of L5 through S1, and intervertebral cage 

placement of L5-S1. OWCP paid him wage-loss compensation on the supplemental rolls from 

July 1 through August 25, 2012 and on the periodic rolls from August 26, 2012 through 

June 22, 2019. It paid appellant wage-loss compensation on the supplemental rolls for the period 

June 23 through July 7, 2019.

On June 26, 2018 appellant advised OWCP of a change in his address. 

On August 23, 2018 OWCP referred appellant for a second opinion examination regarding 

his work capacity. In a report dated September 11, 2018, Dr. Adam J. Bevevino, a Board-certified 

orthopedic surgeon, diagnosed L5-S1 lumbar spondylolisthesis, lumbar spondylosis, and chronic 

low back pain due to the accepted work-related injury of May 11, 2012. He released appellant to 

return to work in a full-time light-duty capacity with restrictions of avoidance of prolonged 

standing/walking no more than two hours a day, no repetitive heavy lifting/pushing/pulling and 

limited bending, twisting, kneeling, climbing and stooping. Dr. Bevevino also completed a work 

capacity evaluation (Form OWCP-5c) indicating that appellant could perform light work, with 

restrictions of 20 pounds of pushing, pulling, and lifting, each for two hours a day; walking and 

standing for two hours a day; and one hour a day each of squatting, kneeling, climbing, twisting, 

and bending/stooping.

By letter dated October 25, 2018, the employing establishment notified OWCP that it did 

not have any available positions within appellant’s work restrictions and requested that appellant 

be referred to vocational rehabilitation. 

On January 10, 2019 OWCP referred the case to a vocational rehabilitation counselor based 

on Dr. Bevevino’s work restrictions.

By letter dated January 17, 2019, OWCP requested that appellant complete a return to work 

assignment timeline and a work and educational history questionnaire. It advised that the 

counselor would contact appellant in the near future to arrange a meeting. This letter was sent to 

appellant’s former address. By letter dated January 23, 2019, the vocational rehabilitation 
3

counselor informed appellant that she had attempted to contact him using his telephone number of 

record, but that it was not in service. She requested that appellant contact her at her telephone 

number and proposed an initial interview meeting on January 28, 2019. The vocational 

rehabilitation counselor further requested that appellant bring his complete vocational and 

educational history forms to this meeting. This letter was sent to appellant’s former address. By 

letter dated January 28, 2019, the vocational rehabilitation counselor informed appellant that she 

had waited at their meeting place on that date for 20 minutes, but that he did not attend. She 

requested that he call her when he received the letter in order to supply her with a working 

telephone number. The vocational rehabilitation counselor stated that she would not schedule a 

further meeting until she heard from appellant. This letter was also sent to appellant’s former 

address.

On February 28, 2019 OWCP acknowledged appellant’s change of address request and 

updated his address of record.

In an e-mail dated February 28, 2019, a vocational rehabilitation specialist informed 

appellant’s assigned vocational rehabilitation counselor that appellant’s address had been updated 

and requested that she contact him using the updated information.

OWCP, in a letter dated March 26, 2019, notified appellant of the penalties under 5 U.S.C. 

§ 8113(b) and 20 C.F.R. § 10.519 for failing to cooperate with vocational rehabilitation without 

good cause. It noted that he had not responded to his vocational rehabilitation counselor’s letters 

and requested that he contact her at her telephone number. OWCP advised appellant that the initial 

stages of vocational rehabilitation included interviews, testing, counseling, guidance, and work 

evaluations. It further advised him that, if he failed or refused to participate in vocational 

rehabilitation without good cause, his compensation benefits would be reduced to zero and that 

this reduction would continue until he complied with OWCP’s directions concerning 

rehabilitation. OWCP afforded appellant 30 days to contact OWCP and his rehabilitation 

counselor to make a good faith effort to participate in the rehabilitation effort designed to return 

him to gainful employment. It informed him that, if he believed he had a good reason for not 

participating in the rehabilitation effort, he should respond within 30 days, with reasons for 

noncompliance, and submit evidence in support of his position. OWCP noted that, if appellant did 

not comply with the instructions contained in the letter within 30 days, the rehabilitation effort 

would be terminated and action would be taken to reduce his compensation under 5 U.S.C. 

§ 8113(b) and 20 C.F.R. § 10.519. This letter was sent to appellant’s newly updated address of 

record. No response was received. 

By decision dated July 8, 2019, OWCP reduced appellant’s compensation to zero, effective 

that date, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, due to his failure to cooperate 

with vocational rehabilitation, without good cause.

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.3 Section 8104(a) of FECA 

 

3 E.W., Docket No. 19-0963 (issued January 2, 2020); Betty F. Wade, 37 ECAB 556, 565 (1986).
4

provides that OWCP may direct a permanently disabled employee to undergo vocational 

rehabilitation.4 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 wageearning capacity in the absence of the failure,” until the individual in good faith complies with the 

direction of OWCP.5

OWCP’s regulations, at 20 C.F.R. § 10.519, provide in pertinent part:

“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 follow--

(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, meetings with OWCP nurse, interviews, 

testing, counseling, functional capacity evaluations [(FCE)], 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.”

6

OWCP’s procedures state that specific instances of noncooperation include a failure to 

appear for the initial interview, counseling sessions, an FCE, other interviews conducted by the 

rehabilitation counselor, vocational testing sessions, and work evaluations, as well as lack of 

response or inappropriate response to directions in a testing session after several attempts at 

instruction.7

 

4 5 U.S.C. § 8104(a).

5

Id. at § 8113(b).

6 20 C.F.R. § 10.519.

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.17(b) 

(February 2011).
5

ANALYSIS

The Board finds that OWCP has not met its burden of proof to reduce appellant’s 

compensation to zero, effective July 8, 2019, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. 

§ 10.519 due to his failure to cooperate with vocational rehabilitation, without good cause.

Upon receiving medical evidence that appellant was capable of performing light-duty work 

with permanent restrictions, OWCP properly referred the case to vocational rehabilitation services 

on January 10, 2019. The vocational rehabilitation counselor reported that appellant had failed to 

respond to her letters of January 17, 23, and 28, 2019 requesting that he contact her to provide an 

updated telephone number and to schedule an initial interview. She also reported that appellant 

did not attend a scheduled meeting on January 28, 2019. The Board notes that appellant had 

requested a change of address on June 26, 2018, which was only processed as of 

February 28, 2019. The January 17, 23, and 28 2019 letters from the vocational rehabilitation 

counselor were sent to appellant’s prior address of record.

In a warning letter dated March 26, 2019, sent to appellant’s newly updated address of 

record, OWCP advised appellant of the need to participate in vocational rehabilitation and the 

consequences of not participating under section 8113(b) of FECA and section 10.519 of its 

regulations.8 It afforded him 30 days to either participate in vocational rehabilitation services or 

provide good cause for his noncompliance. 

The Board finds that when OWCP issued its warning letter on March 26, 2019 appellant 

had not impeded or refused to cooperate in vocational rehabilitation because he had not received 

the prior letters from the vocational rehabilitation counselor since they were sent to his prior 

address. At that time there had been no action planned or scheduled, of which appellant had been 

properly advised, in which he failed to participate. 

OWCP’s regulations contemplate that a warning letter will be sent if the claimant is not 

cooperating.

9

 Its procedures explain that the rehabilitation counselor must fully document any 

noncooperation on the part of the injured worker and submit reports to the rehabilitation specialist 

for immediate handling. The rehabilitation specialist will then inform the claims examiner of the 

claimant’s noncooperation. When an injured worker refuses or impedes the rehabilitation process, 

the claims examiner must then intervene by issuance of warning letter, conference call, or both.10

The initial correspondence from the rehabilitation counselor was not sent to appellant’s 

proper address of record. As such, the Board finds that appellant did not fail to cooperate with 

vocational rehabilitation prior to OWCP’s preliminary warning letter dated March 26, 2019.

OWCP therefore improperly reduced appellant’s compensation benefits to zero. 

 

8 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, respectively.

9 Supra note 6.

10 Supra note 7. 
6

CONCLUSION

The Board finds that OWCP has not met its burden of proof to reduce appellant’s 

compensation to zero, effective July 8, 2019.

ORDER

IT IS HEREBY ORDERED THAT the July 8, 2019 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: September 1, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board