United States Department of Labor

Employees’ Compensation Appeals Board

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S.V., Appellant

and

DEPARTMENT OF THE ARMY, RESEARCH, 

DEVELOPMENT & ENGINEERING 

COMMAND, Fort Monmoth, NJ, Employer

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Docket No. 20-0906

Issued: February 11, 2021

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 March 20, 2020 appellant filed a timely appeal from a January 16, 2020 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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the January 16, 2020 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 properly reduced appellant’s wage-loss compensation to zero,

pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, effective January 17, 2020, due to 

appellant’s failure to cooperate with vocational rehabilitation without good cause.

FACTUAL HISTORY

On May 28, 1975 appellant then a 24-year-old mason helper, filed a traumatic injury claim 

(Form CA-1), alleging that on that date he was rodding a concrete sidewalk when he injured his 

back while in the performance of duty. He stopped work on that date and returned to light-duty 

work on June 2, 1975. OWCP accepted the claim for lumbosacral strain. 

Appellant stopped work again, and on March 29, 1979 OWCP reduced his wage-loss 

compensation based upon his ability to perform the duties based on the constructed position of a

clerical sorter. OWCP paid his wage-loss compensation on the periodic rolls commencing 

June 16, 2002.

OWCP previously referred appellant for vocational rehabilitation services in October 1981 

and April 1987, however, neither of these vocational rehabilitation efforts resulted in his return to 

work. 

On September 18, 2018 appellant was referred for a second opinion examination with

Dr. Andrew Farber, an osteopathic physician specializing in orthopedic surgery. In an October 8, 

2018 report, Dr. Farber related that appellant’s lumbar radiculopathy was chronic in nature, which 

affected his recovery. He advised that appellant would be able to return to work in a light-duty 

position, eight hours per day, with a lifting restriction of 20 pounds occasionally, and 10 pounds 

frequently. However, a return to full-duty work was unlikely. 

On November 9 and 13, 2018 the employing establishment indicated that it was unable to 

accommodate appellant’s work restrictions. 

On October 30, 2018 OWCP referred appellant for vocational rehabilitation services.

In a letter dated November 20, 2018, OWCP’s vocational rehabilitation counselor wrote to 

appellant and advised that he had been assigned to work with him to provide vocational 

rehabilitation services. She related that she had attempted to reach him by telephone and had left 

voice mail messages, but he had not returned her call. Appellant was advised that participation in 

vocational rehabilitation was mandatory and that failure to comply could endanger his benefits. 

In reports beginning December 12, 2018, appellant’s vocational rehabilitation counselor 

reported her interactions with appellant. On December 12, 2018 the rehabilitation counselor 

related that she had conducted an initial interview assessment with him on December 3, 2018. 

Appellant advised that he had previously undergone vocational rehabilitation services in the 

1980’s and was sent for vocational training at that time. He attended classes at a community 

college for basic computer skills training and his wage-loss compensation benefits were adjusted 

following the job search process. The vocational rehabilitation counselor noted that based on 

appellant’s past work experience and education, as well as extensive labor market research in the 
3

geographic area where he currently resides, a vocational option to pursue for return to work, 

customer service representative, had been identified. 

In a January 11, 2019 report, Dr. Nasser Ani, a Board-certified orthopedic surgeon, 

diagnosed lumbar intervertebral disc displacement and recommended that appellant undergo a 

magnetic resonance imaging (MRI) scan to determine further medical treatment. He concluded 

that appellant was totally and permanently disabled. 

In a report dated February 12, 2019, the vocational rehabilitation counselor related that she 

had conducted research for computer skills training which included basic computer skills and 

Microsoft Office applications. She noted that appellant had no computer skills although he 

received training in the 1980’s and had not used a computer after that time. The rehabilitation 

counselor also noted that she had reviewed the plan development on February 11, 2019 with him. 

In a report dated March 12, 2019, she related that she had completed the plan justification report 

on February 22, 2019 to document the recommendations for training and vocational rehabilitation 

services necessary to assist appellant in returning to work and had faxed the report to the 

rehabilitation specialist on March 5 2019. The vocational rehabilitation counselor also noted that 

he remained cooperative during this process. 

By letter dated April 18, 2019, OWCP advised appellant that the position of customer 

service representative and information clerk was identified for his return to work. It advised that 

he was expected to cooperate fully with the necessary training. OWCP also advised appellant that,

based on the rehabilitation counselor’s evaluation and survey of the local labor market, he would 

then have a wage-earning capacity between $402.00 and $438.00 per week. It advised that, if he 

did not cooperate with the present plan, his wage-loss compensation could be reduced. 

By letter dated April 30, 2019, the vocational rehabilitation counselor wrote to appellant 

and asked that he call her office by May 7, 2019 to discuss his training plan. She advised him that 

failure to comply could endanger his benefits. 

In a rehabilitation action report (Form OWCP-44) dated May 13, 2019, the vocational 

rehabilitation counselor related that she had attempted to reach appellant to discuss the change in 

status of his rehabilitation plant to training and to advise him of the schedule for his computer 

training. She noted that she had left voice mail messages for him on April 24 and 29 and May 8

and 10, 2019, however, no response was received from him. The vocational rehabilitation 

counselor also related that she had sent appellant a letter on April 30, 2019 requesting that he call 

to discuss his rehabilitation status by May 7, 2019, however, no response was received. 

In a May 20, 2019 report, Dr. Ani noted that appellant had lower back pain and sharp pain 

in his lower back and the lower aspect of his buttocks, which was a 10 on a scale of 1 to 10. He

noted that appellant was not able to increase his activity level since his last visit and that could not 

sit or stand for a long period of time. Dr. Ani noted that an x-ray of appellant’s lumbar spine 

revealed degenerative disc disease. He advised that appellant was taking prescription medications 

not prescribed by his office and he advised that appellant rest and take ibuprofen. Dr. Ani again 

noted that appellant was totally and permanently disabled from work. He completed a work 

capacity evaluation (Form OWCP-5c) on May 20, 2019 indicating that appellant could not perform 

any work activities. 
4

In a May 20, 2019 memorandum of telephone call (Form CA-110), the vocational 

counselor indicated that appellant informed her that his treating physician had determined that he 

was totally disabled and he did not understand why he needed to participate in vocational 

rehabilitation. 

In a May 21, 2019 Form OWCP-44, the vocational rehabilitation counselor related that she 

had received correspondence from appellant’s treating physician, Dr. Ani. She noted that she had 

attempted to reach appellant on May 16, 20, and 21, 2019 and had left voicemail messages, but 

had not received a response from him. 

By letter dated May 22, 2019, OWCP informed appellant that it had been advised that he 

had refused to cooperate in the continued development of a rehabilitation effort with his vocational 

rehabilitation counselor. It advised appellant that, pursuant to section 8113(b) of FECA if an 

employee without good cause failed to undergo vocational rehabilitation when so directed, OWCP 

may reduce compensation prospectively based on what would have been the employee’s wageearning capacity had he or she not failed to undergo vocational rehabilitation. OWCP advised that 

his case would be held open for 30 days to afford him an opportunity to make a good faith effort 

to participate in the rehabilitation effort. It further advised appellant that if during the allotted 30-

day period he did not comply with the instruction to undergo the rehabilitation effort, or did not 

show good cause for not participating, the rehabilitation effort would be terminated and action 

would be initiated to reduce his probable wage-earning capacity as a customer service 

representative or information clerk. 

In a July 2, 2019 Form OWCP-44, the vocational rehabilitation counselor related that she 

had spoken with appellant on July 2, 2019 by telephone. Appellant had related that he would 

welcome the chance for training, but could not do so at this time. In a Form OWCP-44 dated 

July 23, 2019, the vocational rehabilitation counselor related that she had called him on July 17 

and 23, 2019, however, no response had been received. 

In an August 8, 2019 letter, OWCP advised appellant that the vocational rehabilitation 

counselor indicated that he had stopped participating in vocational rehabilitation and training. It

explained that, pursuant to 5 U.S.C. § 8113(b), if an individual without good cause fails to 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 substantially increased, it may reduce 

prospectively the compensation based on what probably would have been the individual’s wageearning capacity had he or she not failed to undergo vocational rehabilitation. OWCP further 

advised appellant: “Also, [s]ection 10.519 of Title 20 of the Code of Federal Regulations provides

that, if an individual without good cause fails or refuses to participate in the essential preparatory 

efforts as described above, OWCP will 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 wageearning capacity, and compensation will be reduced accordingly. In effect, this will result in a 

reduction of compensation to zero.” It afforded him 30 days to contact the vocational rehabilitation 

counselor and participate in the rehabilitation effort or to provide good reasons for noncompliance. 

In a Form OWCP-44 dated September 12, 2019, the rehabilitation counselor related that 

she had spoken with appellant on September 12, 2019 and that he had related that his physician 

had informed him that he had nerve damage which required further evaluation, and which 
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prevented him from participating in vocational rehabilitation at this time. In a Form OWCP-44

dated November 15, 2019, she related that she had spoken with him on October 23, 2019 and that 

he had related that he was to see a neurologist on October 25, 2019. The rehabilitation counselor 

had then attempted to reach appellant on November 5, and 12, 2019, but he had not returned her 

telephone calls. In a Form OWCP-44 dated December 23, 2019, she related that she had spoken 

with him on November 18, 2019 and he had related that he had been seen by a neurologist on 

November 6, 2019 was awaiting the results of that evaluation. The vocational rehabilitation 

counselor also related that she had called appellant on December 12 and 16, 2019 with no response. 

She related that he had not started the computer skills training as outlined in the rehabilitation plan. 

In reports dated September 6, November 18, and December 16, 2019, Dr. Ani noted that 

appellant was unable to sit or stand for a long period of time. He indicated that appellant’s pain 

had not improved and appellant’s work status had not changed. Dr. Ani diagnosed intervertebral 

disc displacement, lumbar region, other intervertebral disc displacement, lumbosacral region; 

other intervertebral disc degeneration, lumbar region; and other intervertebral disc degeneration, 

lumbosacral region. 

By decision dated January 16, 2020, OWCP reduced appellant’s wage-loss compensation 

to zero pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, effective January 17, 2020, due to 

his failure to cooperate with vocational rehabilitation without good cause. It found that his failure 

to undergo the essential preparatory effort of vocational testing did not permit OWCP to determine 

what would have been his wage-earning capacity had he undergone the testing and rehabilitation 

effort. 

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 

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 [or her] wage-earning 

capacity in the absence of the failure,” until the individual in good faith complies with the direction 

of OWCP.5

 

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

4 5 U.S.C. § 8104(a).

5

Id. at § 8113(b).
6

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 follows --

(a) 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.

(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.”

ANALYSIS

The Board finds that OWCP improperly reduced appellant’s wage-loss compensation to 

zero, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, effective January 17, 2020, due to 

appellant’s failure to cooperate with vocational rehabilitation without good cause.

If the individual fails or refuses to continue to participate in a vocational rehabilitation 

effort after a suitable position has been identified, future monetary compensation will be reduced 

based on the potential earnings of the identified position, as this would likely have been the 

individual’s wage-earning capacity had he or she undergone vocational rehabilitation.6 But if the 

failure or refusal to participate occurred prior to the identification of a suitable job -- during the 

so-called early, but necessary stages of a vocational rehabilitation effort, OWCP is not in a position 

to determine what would have been the individual’s wage-earning capacity.7 Under this latter 

 

6

Id. 

7 20 C.F.R. § 10.519(b); see also C.S., Docket No. 06-1612 (issued February 27, 2007).
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scenario, OWCP will assume that the vocational rehabilitation effort would have resulted in a 

return to work with no loss of wage-earning capacity, and therefore, the individual’s prospective 

monetary compensation is reduced to zero. 

Upon receiving medical evidence that appellant was not totally disabled from all work and

was capable of performing light-duty work with restrictions, OWCP properly referred him to 

vocational rehabilitation services on October 30, 2018. The vocational rehabilitation counselor 

related on December 12, 2018 that, after appellant’s initial interview assessment on December 3, 

2018, based on his prior work experience and education, the vocational option of customer service 

representative had been identified and would be pursued. By letter dated April 18, 2019, OWCP 

advised him that the position of customer service representative had been identified for his return 

to work, which would provide a wage-earning capacity between $402.00 and $438.00 per week. 

On May 22, 2019 OWCP informed appellant that, if he did not comply with the vocational 

rehabilitation effort or provide good cause for not cooperating, the rehabilitation effort would be 

terminated and action would be taken to reduce his compensation based upon his probable wageearning capacity as a customer service representative or information clerk. 

On August 8, 2019 OWCP again explained in a letter to appellant that, pursuant to 5 U.S.C. 

§ 8113(b), if an individual without good cause fails to 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 substantially increased, it may reduce prospectively the compensation based 

on what probably would have been the individual’s wage-earning capacity had he not failed to 

undergo vocational rehabilitation.

The facts of this case establish that the vocational rehabilitation specialist had identified 

the position of customer service representative or information clerk as appellant’s vocational goal

and she had identified appellant’s potential earnings in this position. OWCP had confirmed and 

related this information to him. Therefore, pursuant to 20 C.F.R. § 10.519(a), OWCP was to 

reduce the appellant’s future monetary compensation based on the amount which would likely 

have been his wage-earning capacity had he undergone vocational rehabilitation. However, it

improperly reduced his wage-loss compensation to zero.

CONCLUSION

The Board finds that OWCP improperly reduced appellant’s wage-loss compensation to 

zero, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, effective January 17, 2020, due to 

appellant’s failure to cooperate with vocational rehabilitation without good cause.
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ORDER

IT IS HEREBY ORDERED THAT the January 16, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: February 11, 2021

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