United States Department of Labor

Employees’ Compensation Appeals Board

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B.D., Appellant

and

U.S. POSTAL SERVICE, PROCESSING

& DISTRIBUTION CENTER, 

Carol Stream, IL, Employer

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Docket No. 21-1301

Issued: October 17, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On August 24, 2021 appellant filed a timely appeal from an August 5, 2021 merit decision 

of the Office of Workers’Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.3

1 The Board notes that, during the pendency of this appeal from the August 5, 2021 merit decision, OWCP issued 

a January 27, 2022 merit decision denying modification of the August5, 2021 decision. However, the Board and 

OWCP may not simultaneously exercise jurisdiction over the same issue(s) in a case on appeal. Therefore, OWCP’s 

January 27, 2022 decision is set aside as null and void. 20 C.F.R. §§ 501.2(c)(3), 10.626; see Order Dismissing 

Appeal, M.P., Docket No. 20-0200 (issued May 25, 2022); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. 

Billings, 41 ECAB 880 (1990).

2

5 U.S.C. § 8101 et seq.

3 The Board notes that following the August 5, 2021 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), effective August 5, 2021, for failure to cooperate with the early 

stages of vocational rehabilitation.

FACTUAL HISTORY

On February 15, 2015 appellant, then a 53-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she sustained an injury due to factors of her 

federal employment, including lifting trays of mail. She noted that she first became aware of her 

condition and realized its relation to her federal employment on December 30, 2014. By decision 

dated April 22, 2015, OWCP accepted the claim for exacerbation of lumbar intervertebral disc 

displacement without myelopathy. Appellant was off work for the period December 30, 2014 

through December 11, 2017. OWCP paid appellant wage-loss compensation on the supplemental 

rolls as of February 17, 2015 and on the periodic rolls as of November 15, 2015.

On December 12, 2017 appellant returned to full-time modified work as a mail processing 

clerk with restrictions of no above shoulder lifting, no lifting greater than five pounds, and sitting

for eight hours a day while performing fine manipulation and simple grasping. OWCP accepted 

that appellant sustained a recurrence of disability on September 19, 2018.

On December 17, 2019 OWCP requested that appellant undergo a second opinion 

evaluation to provide additional evidence on the nature of her condition, the extent of disability 

and appropriate treatment. 

In a January 30, 2020 report, Dr. Allan Brecher, OWCP’s second opinion physician and a 

Board-certified orthopedic surgeon, noted his review of statement of accepted facts (SOAF), and 

appellant’s medical record. He also provided his physical examination findings. Dr. Brecher

indicated that appellant had multiple medical problems, including permanent aggravation of her 

degenerative disc disease of her lumbar spine. He opined that appellant was capable of working 

with restrictions of no lifting greater than 25 pounds and that she may benefit from facet injections 

and future spine surgery. In a January 30, 2020 work capacity evaluation (Form OWCP-5c),

Dr. Brecher opined that appellant could work eight hours a day with lifting, pushing, and pulling 

limited to 25 pounds. He noted that appellant’s anxiety and hip replacement may limit her in the 

future. 

On February 20, 2020 OWCP requested that appellant’s treating physician, Dr. Jared 

Kalina, an osteopathic physician and Board-certified anesthesiologist, indicate whether or not he 

agreed with Dr. Brecher’s January 30, 2020 opinion.

In a March 20, 2020 report, Dr. Kalina disagreed with Dr. Brecher that appellant may 

return to work with restrictions. He indicated that she would not tolerate work and that her 

condition would worsen. Dr. Kalina also noted that appellant’s spine surgeon, Dr. Sokolowki,

agreed that she was not a candidate for work. In a series or progress notes beginning March 20, 

2020, Dr. Kalina indicated that appellant required pain medication to maintain activities of daily 

living and to achieve adequate pain relief, which the current medication plan was providing. 
3

In a September 20, 2020 report, Dr. Kalina noted the history of appellant’s work-related 

injury and her medical history. He diagnosed chronic lumbosacral root disorders and chronic other 

intervertebral disc displacement, lumbar region for which there was no partial or full recovery. 

Dr. Kalina opined that appellant was off duty to prevent further injury and/or aggravation of her 

severe spinal stenosis related pain. In an attending physician’s report (Form CA-20) he noted that 

appellant was permanently disabled from work commencing September 24, 2018.

On January 19, 2021 OWCP advised the employing establishment that the weight of the 

medical evidence rested with Dr. Brecher’s opinion that appellant could work with restrictions. It 

requested that the employing establishment provide a job within those restrictions. The employing 

establishment did not respond. 

On May 10, 2021 OWCP referred appellant to vocational rehabilitation to assist with her 

return to gainful employment, based on Dr. Brecher’s findings.

In a May 18, 2021 report, the vocational rehabilitation counselor reported that she had 

attempted to schedule an initial vocational rehabilitation interview with appellant on a number of 

occasions since May 10, 2021. However, on May 17, 2021 appellant advised that she was in the 

hospital for a few days and anticipated being admitted to a nursing home upon discharge from 

hospital. She claimed that her current hospitalization was related to her work-related back claim. 

The counselor noted that one week prior to the hospitalization, appellant told her that she was in 

the emergency room due to a nonwork-related seizure disorder.

In a June 10, 2021 letter, the vocational rehabilitation counselor requested additional 

information from appellant to determine whether vocational rehabilitation should continue due to 

her medical status. She requested that appellant provide a statement from her treating physician 

indicating a diagnosis, anticipated recovery timeframe, and explanation as to why she is unable to 

participate in vocational rehabilitation services. 

In a June 25, 2021 rehabilitation action report (Form OWCP-44), the vocational 

rehabilitation counselor indicated that she tried to reach appellant multiple times and left several 

messages. On June 25, 2021 appellant asserted that her medical records were protected under the 

Health Insurance Portability and Accountability Act (HIPPA) and that she would refuse to provide

any medical information as such information could be obtained through the Department of Labor.

The counselor indicated that the medical information was being requested to determine whether 

she could participate in vocational rehabilitation, but appellant has not responded. 

In a June 28, 2021 e-mail, the vocational rehabilitation counselor advised that appellant did 

not provide supportive medical evidence regarding her inability to participate in vocational 

rehabilitation services. She related that, one month prior, appellant was in the hospital and was 

being discharged to a nursing home. Appellant, however, then stopped communicating with her. 

When she requested that appellant sign a release form so that she could obtain the necessary 

medical information to determine whether appellant should receive rehabilitation services, 

appellant responded very defensively that her medical records were “off limits” and that she would 

not sign a release. 

In a June 28, 2021 letter, OWCP advised appellant that the vocational rehabilitation 

counselor had indicated that she had expressed an unwillingness to participate in a possible 

rehabilitation effort because she believed that she was disabled from work. However, it noted that 
4

the January 30, 2020 report from Dr. Brecher advised that appellant was able to perform gainful 

employment. OWCP also noted that appellant stopped communication with her assigned 

vocational rehabilitation counselor since she had been released from a nursing home due to a 

nonwork-related medical condition. It noted that the vocational rehabilitation counselor had 

requested medical evidence of her nonwork-related condition to determine whether she should be 

in vocational rehabilitation and that she had refused and defensively advised the rehabilitation 

counselor that her medical records were off limits and she refused to sign a release. OWCP advised 

that, without such medical records, appellant had not been able to support that her medical 

condition disabled her from work. It explained that pursuant to 5 U.S.C. § 8113(b), if an individual 

without good cause fails to apply for and 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 they not failed to apply 

for and 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.” It 

afforded appellant 30 days to contact the vocational rehabilitation counselor to make a good faith 

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

In a July 23, 2021 letter to appellant, the vocational rehabilitation counselor advised that 

over the last couple of months she had attempted on several occasions to contact her to discuss her 

readiness to participate in a vocational rehabilitation interview. 

In a July 3, 2021 letter, Dr. Kalina opined that appellant was totally disabled and not 

capable of any work. He indicated that appellant has severe stenosis and could not work as her 

symptoms would worsen, requiring surgical correction. 

By decision dated August 5, 2021, OWCP reduced appellant’s compensation to zero, 

effective August 5, 2021, based upon its finding that she had failed to cooperate during the early 

stages of vocational rehabilitation. It noted that while it received medical evidence from

Dr. Kalina dated July 3, 2021, indicating that she had severe stenosis and cannot work as her 

symptoms would worsen requiring surgical correction, the medical evidence was insufficient to 

support her noncompliance. OWCP also found that appellant had not shown good cause for not 

complying with the scheduling of an initial vocational interview. It explained that the failure to 

undergo the essential preparatory effort of vocational rehabilitation did not permit it to determine 

what would have been appellant’s wage-earning capacity had she undergone the testing, training, 

and rehabilitation effort. OWCP determined that, under the provisions of 20 C.F.R. § 10.519, in 

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

appellant’s return to work at the same or higher wages than the position she held when injured. It 

explained that because she had failed to undergo the early stages of vocational testing, it assumed 

that she either would have returned to her date-of-injury position or would have earned higher 

wages. OWCP advised that the reduction in benefits would continue until appellant either 

underwent vocational rehabilitation or showed good cause for not complying.
5

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. 4 Section 8104(a) of FECA 

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

rehabilitation.5

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, then 

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.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, [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 

4

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

5

5 U.S.C. § 8104(a).

6

Id. at § 8113(b).
6

remain in effect until such time as the employee acts in good faith to comply 

with the direction of OWCP.”

7

ANALYSIS

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

zero, pursuant to 5 U.S.C. § 8113(b), effective August 5, 2021, for failure to cooperate with the 

early stages of vocational rehabilitation.

In a January 30, 2020 report, Dr. Brecher, OWCP’s second opinion physician noted that

appellant had multiple medical problems, including permanent aggravation of her degenerative 

disc disease of her lumbar spine. He opined that appellant was capable of working with restrictions 

of no lifting greater than 25 pounds and that she may benefit from facet injections and future spine 

surgery. 

On February 20, 2020 OWCP requested that appellant’s treating physician, Dr. Kalina

review Dr. Brecher’s January 30, 2020 report and indicate whether or not he agreed with

Dr. Brecher’s opinion. 

In a March 20, 2020 progress report, Dr. Kalina reviewed Dr. Brecher’s report and 

disagreed that appellant may return to work with restrictions. He indicated that she would not 

tolerate work and that her condition would worsen. Dr. Kalina also noted that appellant’s spine 

surgeon, Dr. Sokolowki, agreed that she was not a candidate for work. In a September 20, 2020 

report, he diagnosed chronic lumbosacral root disorders and chronic other intervertebral disc 

displacement, lumbar region from which appellant had not achieved partial or full recovery. 

Dr. Kalina opined that appellant was off duty to prevent further injury and/or aggravation of her 

severe spinal stenosis related pain. To the extent that he is asserting that working might cause 

further injury, the Board has held that fear of future injury is not compensable.8 However,

Dr. Kalina also related that appellant had not recovered partially or fully from her accepted injury 

and that she remained disabled. 

On May 10, 2021 OWCP referred appellant to vocational rehabilitation to assist with her 

return to gainful employment, based on Dr. Brecher’s findings.

It is well established that when there are opposing medical reports of virtually equal 

probative value between an attending physician and a second opinion physician, 5 U.S.C. 

§ 8123(a) requires OWCP refer the case to a referee physician to resolve the conflict.9 The Board 

finds that the medical reports of Drs. Brecher and Kalina are in equipoise on the issue of whether 

appellant was capable of returning to work and are thus in conflict. The Board therefore finds that 

7

20 C.F.R. § 10.519;see R.H., 58 ECAB 654 (2007).

8 Appellant’s fear of future injury is not compensable. D.T., Docket No. 19-1064 (issued February 20, 2020); 

J.O., Docket No. 19-1047 (issued November 13, 2019); PaulA. Clarke, 43 ECAB 940 (1992). Further, the opinion 

of a physician that a claimant is unable to work due to a fear of future injury is also not compensable. P.D.,Docket 

No. 18-1461 (issued July 2, 2019). There must be medical evidence showing that a claimant is currently disabled for 

work due to his or her employment-related condition. O.L.,Docket No. 15-1541 (issued January 7, 2016); WilliamA. 

Kandel, 43 ECAB 1011 (1992).

9 F.N., Docket No. 20-0435 (issued February 26, 2021);WilliamC. Bush, 40 ECAB 1064 (1989).
7

OWCP should have resolved this conflict of medical evidence before referring appellant for 

vocational rehabilitation. 

As there remains an unresolved conflict of medical opinion as to whether appellant is 

physically capable of participating in any work activities, OWCP has not met its burden of proof 

to justify termination of her compensation benefits for failure to participate in vocational

rehabilitation efforts.

CONCLUSION

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

zero, pursuant to 5 U.S.C. § 8113(b), effective August 5, 2021, for failure to cooperate with the 

early stages of vocational rehabilitation.

ORDER

IT IS HEREBY ORDERED THAT the August 5, 2021 decision of the Office of

Workers’ Compensation Programs is reversed. 

Issued: October 17, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board