United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SAN DIEGO VA HEALTHCARE SYSTEM, 

San Diego, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 22-1218

Issued: June 6, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 22, 2022 appellant filed a timely appeal from a July 12, 2022 merit and an

August 17, 2022 nonmerit 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.

ISSUES

The issues are: (1) 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 July 12, 2022, due to her 

failure to cooperate with vocational rehabilitation without good cause; and (2) whether OWCP 

properly denied appellant’s request for reconsideration of the merits of her claim, pursuant to 

5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 10, 2003 appellant, then a 40-year-old telephone operator, filed an 

occupational disease claim (Form CA-2) alleging that she suffered stress as a result of being 

stalked by another employee while in the performance of duty. She first realized her condition 

and its relation to her employment on February 20, 2003. Appellant stopped work on July 28, 

2003 and has not returned. OWCP accepted the claim for aggravation of preexisting depression. 

It paid wage-loss compensation on its supplemental rolls as of August 21, 2003, and on the periodic

compensation rolls commencing March 20, 2005.

In a May 20, 2020 letter, OWCP requested that Dr. David R. Hawkins, a psychiatrist, 

provide updated medical documentation on appellant’s work-related condition. In a May 27, 2020 

letter, Dr. Hawkins indicated that he last treated appellant on August 17, 2017. 

On January 20, 2021 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and list of questions, for a second opinion evaluation with Dr. Manuel Saint Martin, a 

Board-certified psychiatrist. In a February 11, 2021 report, Dr. Saint Martin opined that appellant 

still had symptoms of major depression and that she had reached maximum medical improvement. 

He also opined that she should have ongoing treatment to maintain her current level of functioning. 

Dr. Saint Martin indicated that appellant was not capable of returning to her date-of-injury job as 

a telephone operator in the same location or under the same circumstances. He also noted that 

appellant was spending about four hours a day on activities related to selling merchandise online, 

which she hoped to perform as a business. In a February 10, 2021 work capacity evaluation for 

psychiatric/psychological conditions (Form OWCP-5a), Dr. Saint Martin opined that appellant 

was capable of working no more than four hours per day as anxiety would affect her ability to 

concentrate on work tasks. He noted that there were no medical factors, including medications 

taken, that needed to be considered in finding employment. 

In a February 16, 2021 letter, OWCP informed appellant that the weight of the medical 

evidence rested with the second opinion report of Dr. Saint Martin, who opined that she was 

capable of resuming gainful employment up to four hours per day within imposed restrictions. It 

advised her of the purpose of vocational rehabilitation services. OWCP also noted that her case 

was referred for appropriate vocational rehabilitation services and that a vocational rehabilitation 

counselor would contact her to set up an initial interview and her employment plan.

In separate letters also dated February 16, 2021, OWCP informed both Dr. Hawkins and 

the employing establishment that appellant would be referred to vocational rehabilitation services 

as Dr. Saint Martin had indicated that she was employable for four hours a day.

In a February 26, 2021 letter, OWCP notified appellant that Gerald Balut, a vocational 

rehabilitation counselor, had been assigned to assist her in returning to suitable employment. It 

advised her that participation in its vocational rehabilitation program was mandatory and, pursuant 

to section 8113(b) of FECA (5 U.S.C. § 8113(b)), 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 wage-earning capacity had she not 

failed to undergo vocational rehabilitation.
3

In a letter dated April 13, 2021, OWCP requested that appellant have her treating physician 

provide updated medical documentation to substantiate her disability and its relation to her federal 

employment.

In a March 31, 2021 rehabilitation action report (Form OWCP-44), the vocational 

rehabilitation counselor related that rehabilitation plan development status began on February 26, 

2021 and that he had tried to contact appellant at two telephone numbers, but was not able to 

converse with her. He also noted that appellant never responded to his March 16, 2021 

correspondence, which was sent to appellant’s address, which requested that she contact him as 

soon as possible for the initial vocational assessment which was scheduled for March 25, 2021 at 

10:00 a.m. The vocational rehabilitation counselor also indicated that he tried without success to 

contact appellant several more times. A March 31, 2021 vocational rehabilitation executive 

summary indicated that the counselor spoke with someone who answered appellant’s telephone. 

The counselor was apprised that appellant went by three names and that she may have moved to 

Hicksville, New York. The counselor was able to obtain a new telephone number for appellant, 

however, her voice mail box was full on March 10 and 24, 2021. In a May 7, 2021 vocational 

rehabilitation executive summary, the vocational rehabilitation counselor reported that appellant 

contacted him on April 6, 2021 but, due to severe static on the telephone line, he told her that he 

would immediately call her back. Appellant responded “yes” as he verified appellant’s telephone 

number. However, when he immediately called back, appellant did not pick up the telephone and 

his attempts to reach her over the course of several hours either went to voice mail or to her mailbox

which was full. The rehabilitation counselor indicated that he also called appellant on April 7, 14, 

15, and 22, 2021. When he was able to leave a voice mail message, he provided both his cell 

number and office number, which had also been provided on the informational form he previously 

sent the prior month, however, appellant never responded. The rehabilitation counselor 

recommended that the case be closed due to appellant’s noncooperation.

In a May 31, 2021 vocational rehabilitation report, the vocational rehabilitation counselor 

noted that he had been trying to reach appellant since March 9, 2021 with little success despite 

multiple attempts, except on April 6, 2021. He indicated that he left her detailed messages on 

May 5, 19, and 26, 2021, but she did not respond. 

In a June 30, 2021 Form OWCP-44 and vocational rehabilitation report, the vocational 

rehabilitation counselor listed his attempts of trying to call appellant with no success. This 

included June 14, 21, and 29, 2021 when he left messages for appellant, but received no response. 

He again requested that the case be closed because of noncooperation. 

In subsequent vocational rehabilitation reports dated July 31, August 31, September 30, 

and October 30, 2021, the vocational rehabilitation counselor reiterated that he had been trying to 

reach appellant since March 9, 2021, that she had two different telephone numbers, and that she 

never responded to correspondence sent to her New York address for the initial interview set for 

March 25, 2021 at 10:0 a.m. He noted that appellant had not replied to any of his contacts in the 

past four months and that she still had not contacted him to begin rehabilitation activities. The 

rehabilitation counselor documented his attempts to contact appellant again on August 25, 

September 7, and October 19, 2021, noting that he had left detailed messages regarding 

rehabilitation process and had included his contact numbers, but she did not respond. 
4

In a November 5, 2021 letter, OWCP advised appellant that the vocational rehabilitation 

counselor had attempted to contact her on March 9, 10, April 6, 7, 14, 15, and 22, May 5, 19 and 

26, June 14, 21, and 29, 2021 either by telephone or in written correspondence requesting that she 

contact OWCP regarding possible rehabilitation services. It explained the purpose of vocational 

rehabilitation and advised, 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 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 wage-earning capacity, and compensation will be reduced accordingly. In effect, 

this will result in a reduction of compensation to zero.” This reduction would continue until 

appellant in good faith complies with OWCP’s directions concerning vocational rehabilitation. It 

afforded appellant 30 days to contact OWCP and the vocational rehabilitation counselor and 

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

In a November 9, 2021 memorandum of telephone call (Form CA-110), appellant denied 

noncooperation and advised OWCP that she wanted to cooperate with vocational rehabilitation 

services. She verified her cell phone number and New York address. OWCP further advised 

appellant that she needed to obtain a current medical report from her physician. 

In an undated letter, which OWCP received on November 29, 2021, appellant advised, in 

pertinent part, that she “have always and will continue to participate in any vocational therapy, 

given the opportunity.”

In a November 30, 2021 Form OWCP-44 and vocational rehabilitation report, the 

vocational rehabilitation counselor indicated that he left appellant detailed messages on 

November 10 and 22, 2021, but received no response. He noted that a noncompliance letter had 

been sent to appellant and that she had until December 10, 2021 to respond. In December 31, 2021

and January 31, 2022 vocational rehabilitation reports, the rehabilitation counselor documented 

leaving detailed messages regarding participation in vocational rehabilitation activities on 

December 10, 15 and 31, 2021 and January 10, 26, 31, 2022, but appellant had not responded. He 

advised that appellant had not replied to any of his contacts in the past six/seven months. 

In his February 28, 2022 vocational rehabilitation report, the rehabilitation counselor 

indicated that appellant did not respond to his messages left on February 10 and 17, 2022; however, 

she had called him on February 19, 2022. During that conversation, appellant stated that she had 

tried to call him in December 2021 and January 2022, but both times there was no voice mail 

available for her to leave a message. The rehabilitation counselor indicated that they arranged that 

he would call appellant at 9:30 a.m. on Monday, February 21, 2022 to go over the case file. On 

February 21, 2022 the counselor called appellant as scheduled and left a detailed message, but 

appellant never responded. He left additional messages for appellant on March 10, 30, April 11, 

25, May 9, 18, 25, 2022, but she did not respond. 
5

In letters dated May 2 and June 28, 2022, OWCP requested that appellant have her treating 

physician provide updated medical documentation to substantiate her disability and its relation to 

her federal employment pursuant to its requirement to support payment of continuing 

compensation. 

On June 15, 2022 appellant advised OWCP of her new address in Greenville, North 

Carolina, effective June 7, 2022. 

In June 30 and July 8, 2022 Forms OWCP-44, the rehabilitation counselor related that for 

the past four and a half months, he had given appellant every opportunity to cooperate in the 

rehabilitation process, but she has failed to respond to any of his contacts. He recommended that 

the case be closed for noncooperation. In a June 30, 2022 executive summary, the vocational 

rehabilitation counselor reported leaving messages for appellant on June 7 and 21, 2022, but she 

did not respond to his calls. Based on appellant’s background, he indicated that she had the ability 

to be gainfully employed on a part-time basis, but suitable gainful employment was not able to be 

provided because of her noncooperation. 

By decision dated July 12, 2022, 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 July 12, 2022, due to her 

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

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

what would have been her wage-earning capacity had she undergone the testing and rehabilitation 

effort.

On August 9, 2022 appellant requested for reconsideration. In an August 1, 2022 

statement, she noted the background of her claim and indicated that she was traumatized every 

time her telephone rings. Appellant noted that she listened to her voice mails when she upgraded

her telephone in early 2022. She alleged that she had trouble getting in touch with the “very 

unprofessional” vocational rehabilitation counselor. Appellant noted that one message in late 

December from a “Jerry,” which wished her a Happy New Year, had frightened her as she did not 

realize that “Jerry” was Gerald, the rehabilitation counselor, as he did not leave his full name or 

his company. She related that “not once in any of his messages did he say what he wanted or who 

he was.” Appellant noted that she had called him, but he did not have an answering machine. She 

also questioned how the rehabilitation process was supposed to work as “Jerry” was in 

Massachusetts and she had lived in New York at the time. Appellant noted that she had numerous 

problems with OWCP’s New York office and that no doctor had released her to work. 

By decision dated August 17, 2022, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT -- ISSUE 1

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. 2 Section 8104(a) of FECA 

2

See E.W., Docket No. 19-0963 (issued January 2, 2020); Betty F. Wade, 37 ECAB 556, 565 (1986).
6

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

rehabilitation.3

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.4

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.’”

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 

3

5 U.S.C. § 8104(a).

4

Id. at § 8113(b).
7

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.5

ANALYSIS -- ISSUE 1

The Board finds that 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 July 12, 2022, due to her 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 

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 Dr. Saint Martin’s February 11, 2021 report that appellant was not totally 

disabled from all work and was capable of performing up to four hours of work with restrictions, 

OWCP properly referred appellant to vocational rehabilitation services in February 2021. Despite 

OWCP’s letters dated April 13, 2021 and May 2 and June 28, 2022 which informed appellant of 

the need for updated medical documentation from her treating physician, no new medical evidence 

was received. Thus, the most recent medical documentation of record remains the February 11, 

2021 second opinion examination report from Dr. Saint Martin which opined that appellant was 

capable of working no more than four hours per day with restrictions. 

The facts of this case establish that the vocational rehabilitation specialist was unable to 

successfully contact appellant to begin rehabilitation services. Since March 9, 2021 he had 

attempted to reach appellant through voice mail messages and since March 16, 2021 through

written correspondence. Appellant did not respond to the scheduled March 25, 2021 initial 

interview and thereafter to the vocational specialist’s numerous documented messages over a 

period of several months, with the exception of April 6, 2021 and February 19, 2022. On April 6, 

2021 the rehabilitation specialist related that he spoke to appellant and she verified her contact 

information, however, due to static on the line he informed her that he would call back 

immediately. He did call appellant back immediately, but she did not pick up the telephone at that 

time, or during multiple attempts that day. On February 19, 2022 the vocational rehabilitation 

specialist indicated that they arranged to go over appellant’s case file on Monday, February 21, 

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

(February 2011).

6

5 U.S.C. § 8113(b).

7

Id.
8

2022 at 9:30 a.m., but, when he called her at the stated time and date, she never picked up the 

telephone or responded to his messages. 

On November 5, 2021 OWCP preliminarily 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 thus establish that appellant failed to make good faith efforts to 

cooperate in vocational rehabilitation since March 2021. Though appellant indicated that she 

would cooperate with vocational rehabilitation, the vocational rehabilitation counselor’s reports 

indicate that she continued her pattern of noncooperation even when contact was briefly made. As 

such, the vocational rehabilitation counselor was unable to identify suitable positions within 

appellant’s restrictions and vocational goals. Therefore, the Board finds that that 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(a).

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as 

a matter of right.8 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.9 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.10 

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.11 When a timely application for reconsideration does not meet at least one 

of the above-noted requirements, OWCP will deny the request for reconsideration without 

reopening the case for a review on the merits.12

8 This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.607.

10 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal 

Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

11 20 C.F.R. § 10.606(b)(3).

12 Id. at § 10.608(a), (b).
9

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for further reconsideration 

of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

With the reconsideration request received on August 9, 2022, appellant did not show that 

OWCP erroneously applied or interpreted a specific point of law and she did not advance a new 

and relevant legal argument not previously considered. She did not present a valid argument 

supporting a finding that she did participate in vocational rehabilitation efforts in good faith.

Consequently, appellant was not entitled to a review of the merits based on the first and second 

above-noted requirements under 20 C.F.R § 10.606(b)(3).13

Appellant also did not submit evidence in support of her reconsideration request. As she 

did not submit any relevant and pertinent new evidence not previously considered by OWCP, 

appellant is not entitled to a review of the merits of her claim based on the third requirement under 

20 C.F.R. § 10.606(b)(3).14

Accordingly, the Board finds that appellant has not met any of the requirements 

enumerated under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly 

denied her request for reconsideration without reopening the case for review on the merits. 15

CONCLUSION

The Board finds that 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 July 12, 2022, due to her failure 

to cooperate with vocational rehabilitation without good cause. The Board also finds that OWCP 

properly denied appellant’s request for reconsideration of the merits of her claim, pursuant to 

5 U.S.C. § 8128(a).

13 Id. at § 10.606(b)(3); L.D., Docket No. 18-1468 (issued February 11, 2019).

14 Id. at § 10.606(b)(3)(iii).

15 See S.K., Docket No. 22-0248 (issued June27, 2022); D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., 

Docket No. 09-2032 (issued August3, 2010); M.E., 58 ECAB 694 (2007); SusanA. Filkins, 57 ECAB 630 (2006).
10

ORDER

IT IS HEREBY ORDERED THAT the July 12 and August 17, 2022 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: June 6, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board