United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.C., Appellant

and

FEDERAL JUDICIARY, U.S. DISTRICT 

COURT, Los Angeles, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0278

Issued: May 5, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 12, 2021 appellant filed a timely appeal from an October 13, 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 to consider the merits of this case.

1 The Board notes that,following the October 13, 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

5 U.S.C. § 8101 et seq.
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 October 13, 2021, for failure to 

cooperate with vocational rehabilitation without good cause.

FACTUAL HISTORY

On March 18, 2019 appellant, then a 51-year-old generalist clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on March 8, 2019 she injured her back when she tripped over a 

box while in the performance of duty. She stopped work on March 11, 2019. OWCP accepted 

the claim for compression fracture of a lumbar vertebra. It accepted the additional conditions of 

sacroiliitis and lumbar radiculopathy on March 10, 2020. OWCP paid appellant wage-loss 

compensation on the supplemental rolls beginning June 24, 2019 and on the periodic rolls 

beginning March 29, 2020.

In notes dated May 2 through October 23, 2019, appellant’s attending physician,

Dr. Lawrence R. Miller, a Board-certified internist, found that she was totally disabled beginning 

March 8, 2019 due to her employment-related post-traumatic left sacroiliitis. He diagnosed left 

lateral recess stenosis at L3-4 and preexisting steroid-dependent rheumatoid arthritis. Beginning 

December 4, 2019 through July 9, 2020, Dr. Miller diagnosed left lumbar radiculopathy, left 

sacroiliitis, and rheumatoid arthritis.

On October 1, 2020 OWCP referred appellant, a statement of accepted facts (SOAF), and 

the medical record to Dr. Ghol B. Ha’Eri, a Board-certified orthopedic surgeon, for a second 

opinion examination.

In an October 21, 2020 report, Dr. Ha’Eri reviewed the SOAF and appellant’s medical 

treatment. He performed a physical examination and diagnosed left paracentral disc protrusion at 

L3-4 resulting in lower back pain and radicular pain in the left lower extremity, left sacroiliitis, 

mild compression fracture of T12, L1, L2, and L4, and preexisting rheumatoid arthritis. Dr. Ha’Eri 

found that appellant was capable of sedentary work beginning June 1, 2019. He provided a work 

capacity evaluation (Form OWCP-5c), noted sedentary work, but did not provide any additional 

specific restrictions.

On March 24, 2021 OWCP referred appellant to vocational rehabilitation to assist with her 

return to gainful employment based on Dr. Ha’Eri’s report, which it found was entitled to the 

weight of the medical evidence.

In a letter dated April 1, 2021, appellant’s vocational rehabilitation counselor informed her 

that he had attempted to reach her by telephone through voice messages with no response. He 

requested that she schedule a telephone appointment as soon as possible.

On April 6, 2021 OWCP informed appellant that it had assigned a vocational rehabilitation 

counselor to assist her in returning to suitable employment. It noted that participation in vocational 

rehabilitation was mandatory and that sections 8113(b) and 8115 of FECA allowed it to 
3

prospectively reduce or suspend compensation in accordance with an injured workers’ wageearning capacity if he or she refused to undergo vocational rehabilitation without good cause.

On April 10, 2021 Dr. Miller completed an attending physician’s report (Form CA-20) and 

opined that appellant was totally disabled from work through that date due to lumbar 

radiculopathy, disc problems, and sacroiliitis. 

In a report dated April 16, 2021, the vocational rehabilitation counselor indicated that 

appellant had not responded to calls and messages left from March 30 through April 15, 2021.

On May 4, 2021 appellant contacted the vocational rehabilitation counselor and scheduled 

an initial interview for May 7, 2021. She did not appear for this scheduled interview or respond 

to repeated calls on May 7, 2021.

In a May 10, 2021 letter, the vocational rehabilitation counselor informed appellant that 

she had been referred for vocational rehabilitation services by OWCP. He requested that she 

contact him and provided his telephone numbers.

In a July 8, 2021 note, Dr. Miller reported that appellant remained symptomatic with 

ongoing lower back pain and radicular symptoms in the left lower extremity. He found that she

was totally disabled.

OWCP informed the employing establishment on August 16, 2021 that appellant could 

return to sedentary work which entailed exerting 10 pounds of force occasionally to lift, carry, 

push, pull, or otherwise move objects, sitting most of the time, and walking or standing 

occasionally for up to 2 hours 40 minutes in an 8-hour workday.

On August 26 and 30, 2021 the employing establishment offered appellant her date-ofinjury position as a full-time generalist clerk with accommodations for limited walking and 

standing.

In an August 30, 2021 letter, OWCP advised appellant that the vocational rehabilitation 

counselor had indicated that she was unwilling or unable to participate in vocational rehabilitation 

and training, as she had failed to respond to the vocational rehabilitation counselor during the 

period March 30 through May 7, 2021. 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 her 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.
4

On August 25, 2021 Dr. Miller diagnosed left lumbar radiculopathy, left sacroiliitis, and 

rheumatoid arthritis and found that appellant was totally disabled. He noted that she remained 

symptomatic with ongoing pain in her lower back and radicular symptoms into the left lower 

extremity.

The vocational rehabilitation counselor completed reports on September 18 and October 2, 

2021 and noted that appellant had not responded to numerous attempts to contact her and that she 

had not scheduled an initial interview.

In an October 1, 2021 memorandum of telephone call (Form CA-110), appellant contended 

that she could not participate in vocational rehabilitation counseling because her attending 

physician found that she was totally disabled from work.

By decision dated October 13, 2021, OWCP reduced appellant’s compensation to zero, 

effective that date, based upon its finding that she had failed to cooperate during the early stages 

of vocational rehabilitation. It noted that she had not shown good cause for not complying. OWCP 

noted that appellant had not responded to its August 30, 2021 letter. It explained that the failure 

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

determine what would have been her wage-earning capacity had she undergone the testing, 

training, and rehabilitation effort. OWCP determined that, under the provisions of 5 U.S.C. 

8113(b) of FECA and section 10.519 of its regulations, 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 advised that the reduction in benefits 

would continue until she either underwent vocational rehabilitation or showed good cause for not 

complying. 

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, 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.5

3

See D.W., Docket No. 20-0840 (issued August 19, 2021); 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).
5

OWCP 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. [It] will determine this amount in 

accordance with the job identified through the vocational rehabilitation 

planning process, which includes meetings with 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.’”

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

Section 8123(a) of FECA which provides that, if there is disagreement between the 

physician making the examination for the United States and the physician of the employee, OWCP 

shall appoint a third physician (known as a referee physician or impartial medical specialist) who 

shall make an examination. This is called a referee examination and OWCP will select a physician 

who is qualified in the appropriate specialty and who has no prior connection with the case.

6

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

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

(February 2011).
6

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s wageloss compensation to zero, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, effective 

October 13, 2021.

Once OWCP has made a determination that an employee is totally disabled from work as 

a result of an employment injury and pays compensation, it has the burden of justifying a 

subsequent reduction of benefits.8 It reduced appellant’s compensation based on her failure to 

participate in the early stages of vocational rehabilitation without good cause.

In reaching its conclusion with regard to the ability to work, OWCP must initially 

determine the employee’s medical condition and work restrictions.9 When it referred appellant to 

vocational rehabilitation, it determined that the weight of the evidence was represented by the 

opinion of Dr. Ha’Eri. Dr. Ha’Eri found that she could return to sedentary work.

However, appellant’s attending physician, Dr. Miller, in his August 25, 2021 report, found 

that she was totally disabled from work due to symptoms of her accepted employment injuries and 

could not return to work.

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. The Board 

finds that the medical reports of Drs. Miller and Ha’Eri are in equipoise on the issue of whether 

appellant is capable of returning to work and are thus in conflict. As the opposing medical reports 

are of virtually equal weight and rationale, the Board finds that there is an unresolved conflict with 

regard to her ability to return to work and participate in vocational rehabilitation efforts.

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

physically capable of participating in vocational rehabilitation, OWCP has failed to meetits burden 

of proof to justify reduction of her compensation benefits to zero for failure to participate in 

vocational rehabilitation efforts.

CONCLUSION

The Board finds that OWCP failed to meet its burden of proof to reduce appellant’s wageloss compensation to zero, pursuant to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519, effective 

October 13, 2021.

8 F.N., Docket No. 20-0435 (issued February 26, 2021); D.E., Docket No. 15-0712 (issued June 23, 2016).

9

Id.; L.C., Docket No. 12-972 (issued November 9, 2012).
7

ORDER

IT IS HEREBY ORDERED THAT the October 13, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: May 5, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board