United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

DEPARTMENT OF THE NAVY, MARINE 

CORPS AIR GROUND COMBAT CENTER, 

Twentynine Palms, CA, Employer

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Docket No. 21-0145

Issued: May 3, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 10, 2020 appellant, through counsel, filed a timely appeal from a 

September 1, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that,following OWCP’s September 1, 2020 decision, appellant submitted 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 

benefits, effective February 15, 2020, based on his capacity to earn wages in the constructed 

position of customer complaint clerk.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.4 The facts and 

circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are as follows.

On March 5, 2007 appellant, then a 51-year-old materials handler, filed a traumatic injury 

claim (Form CA-1) alleging that on February 29, 2007 he injured his low back, left hip and leg 

when he twisted his low back and hip climbing out of a forklift while in the performance of duty. 

He stopped work on March 2, 2007 and returned on March 5, 2007.

OWCP accepted the claim for sciatica, lumbosacral strain, lumbar fusion, and degenerative 

disc disease of the lumbar spine. Appellant stopped work on or about November 14, 2008 due to 

worsening symptoms and OWCP paid him wage-loss compensation on the supplemental rolls as 

of November 14, 2008 and on the periodic rolls as of December 18, 2011.

Appellant underwent an OWCP-authorized L3-5 lumbar fusion and instrumentation 

placement on November 17, 2011. On September 27, 2013 he underwent scar tissue/hardware 

block at L3-5; and on May 7, 2014 he underwent removal of segmental instrumentation L3-5.

In an August 19, 2016 report, Dr. Darren L. Bergey, a regenerative medicine specialist and 

treating physician, requested authorization for assessment of a functional restoration program for 

treatment of appellant’s chronic pain. He opined that appellant developed psychosocial sequelae

that limited his function and recovery after the initial incident, including anxiety, fear-avoidance, 

depression, and sleep disorders. Dr. Bergey noted that consideration should be given to an 

inpatient detoxification program for opioid dependence.

By report dated November 29, 2016, Dr. Taisha S. Williams, a physiatrist and District

Medical Adviser (DMA), indicated that the diagnosis of opioid dependence would have to be 

accepted by OWCP before she could recommend approval of a detoxification program, as 

recommended by Dr. Bergey.

On April 6, 2017 OWCP referred appellant for a second opinion examination with

Dr. Stephan Simonian, a Board-certified psychiatrist, to obtain an independent assessment of the 

work-related conditions, extent of disability, and appropriate course of treatment. 

By report dated May 2, 2017, Dr. Simonian opined that appellant had developed an opioid 

dependence due to medication for his accepted employment injury. He advised that the 

detoxification program would be appropriate, as recommended by appellant’s treating physician, 

if appellant was able to tolerate the pain without such medication. 

4 Docket No. 11-889 (issued November 21, 2011).
3

On May 18, 2017 OWCP accepted opioid dependence as causally related to the accepted 

employment injury. 

By report dated February 12, 2018, Dr. Bergey advised that appellant could work with 

limitations of no repetitive lifting, pushing, or pulling greater than 25 pounds. He also advised 

appellant to limit bending and stooping. Dr. Bergey noted again that in-patient detoxification had 

been requested. 

On September 27, 2018 OWCP referred appellant for vocational rehabilitation services

with instructions to begin with consideration of placement with the employing establishment.

In a September 27, 2018 report, Dr. Bergey noted that appellant’s conditions were

permanent and stationary and recommended that appellant undergo further treatment including 

facet blocks, a left SI joint block, and then radio frequency ablations of the facets if the blocks 

were diagnostic, and left SI joint fusion if the blocks were diagnostic. He noted that appellant 

would not proceed at the present but would leave these as future medical options.

On October 17, 2018 the employing establishment indicated that it was unable to offer 

appellant modified work.

By letter dated February 6, 2019, OWCP advised appellant that the rehabilitation counselor 

had developed a plan for him to return to work as an information clerk, Department of Labor’s

Dictionary of Occupational Titles (DOT) #237.367-022, or a customer complaint clerk, DOT 

#241.367-014. The duties included investigating customer complaints about bills or service, 

examining documents, notifying customers of findings, examining merchandise, and keying 

information into computers. The positions were sedentary and required occasional lifting up to 10 

pounds. OWCP explained that the job duties were within his limitations and he was expected to 

cooperate fully so that he could return to work in the specified position or one similar. It noted 

that appellant had a wage-earning capacity of $11.50 to $15.00 per hour. OWCP explained that at 

the end of the rehabilitation program, it would reduce his compensation based upon this amount. 

It advised that if appellant did not cooperate fully with the rehabilitation plan, itwould assume that 

the vocational services would have resulted in the above-noted wage-earning capacity and,

therefore, would reduce his compensation by that amount, in accordance with 20 C.F.R. § 10.519.

On April 19, 2019 OWCP referred appellant for a second opinion evaluation with

Dr. Mark D. Bernhard, an osteopath specializing in physiatry, regarding appellant’s reported 

chronic pain and opioid treatment.

In a May 1, 2019 report, Dr. C. Edward Anderson, Board-certified in pain medicine, noted 

that appellant presented to the clinic for prescription refill and that appellant’s pain medication 

reduced his pain from a 7/10 to a 3/10, his Controlled Substance Utilization Review and Evaluation 

System report was consistent with his prescription history, and he did not complain of any side 

effects of the pain medication. He noted that he provided appellant with a three-month set of 

prescriptions and would see him in follow-up in 12 weeks. 

In a report dated May 14, 2019, Dr. Bernhard noted appellant’s history of injury and 

medical treatment. He provided appellant’s physical examination findings and diagnosed chronic 

pain due to trauma, L3-4 disc degeneration, L5-S1 facet arthropathy, L3-4 stenosis, bilateral L4 

radiculopathy, status post posterior lumbar instrumentation and fusion, bilateral laminotomies 

facetectomies, and foraminotomies with continued complaint of pain and radicular symptoms.
4

Dr. Bernhard noted that appellant’s opioid medication included OxyContin, 20 milligrams, three 

times a day, that he disagreed with this regimen, and that concomitant use of oxycodone and 

benzodiazepines or other central nervous system (CNS) depressants should be avoided. He

recommended reduction in the use of OxyContin, given the CNS depressant effects of the 

combined medications, and that individuals taking these medications be monitored and informed 

of sedation, breathing problems, CNS depression, and hypotension. Dr. Bernhard advised that 

appellant was a candidate for a functional restoration program to include psychological 

management, pain management, control of analgesic prescribing, and use of alternative methods 

for pain management. He explained that the goals were improved function and increasing activity 

levels combined with pain management, that appellant’s descriptions of his pain were 

extraordinarily severe and would need psychological and psychiatric intervention , and that 

appellant was aware of the risks and dangers of opioid medications and the need for a functional 

restoration program. Dr. Bernhard also recommended drug testing every three months and that 

appellant should have Narcan® available and a means of notifying emergency personnel of any 

impending overdose or alteration in consciousness. He also noted that appellant might respond to 

treatment with buprenorphine, a longer lasting medication and possible anti-depressant, and further 

treatment to include use of a pain pump or spinal cord stimulator as adjuncts for pain treatment. 

Dr. Bernhard advised that appellant should be involved in a functional restoration program which 

addressed the need to reduce the opiate analgesic medication and rely on non-opiate measures and 

approaches. 

On September 5, 2019 OWCP’s rehabilitation counselor advised that appellant had not 

made a sufficient effort to obtain employment and placement services had ceased.

By notice dated January 14, 2020, OWCP advised appellant of their proposal to reduce his 

wage-loss compensation on the basis that he could work as a customer complaint clerk,

DOT#241.367-014, at the rate of $481.62 per week.5It further noted that the rehabilitation 

specialist documented that such positions were available in appellant’s commuting area and that 

the entry pay level for the position was $481.62 per week. OWCP explained that the customer 

complaint clerk position was determined to be within the provided permanent physical restrictions 

since it was sedentary. It calculated that appellant’s compensation rate should be adjusted to 

$1,112.00 every four weeks using the Albert C. Shadrick formula.6 OWCP provided him 30 days 

to submit additional evidence regarding his capacity to earn wages in the position described. 

Appellant did not respond.

By letter dated February 11, 2020, OWCP requested that Dr. Anderson provide an opinion 

related to the use of a pain pump or spinal cord stimulator and the use of Narcan® or other opioid 

overdose reversal medication. It also requested a recent drug screen and an opinion with regard to 

alternative treatment.

5 OWCP explained that the customer complaint clerk position was selected because it had a higher specific 

vocational preparation (SVP) and appellant qualified for the position, which was expected to grow at a higher rate of 

16.7 percent over the next few years.

6 Albert C. Shadrick, 5 ECAB 376 (1953).
5

By decision dated February 14, 2020, OWCP finalized the proposed reduction of 

compensation, finding that appellant was capable of performing the duties of a customer complaint 

clerk.

On February 25, 2020 appellant, through counsel, request a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. At the hearing, held on June 15, 2020

appellant testified that he was incapable of working due to his medical conditions and did not

believe he could perform the proposed job. He related that his medication made him pass out at 

work. Counsel argued that the job was outside appellant’s physical limitations.

In a report dated March 31, 2020, Dr. Anderson noted that appellant reported that he was 

doing well with no new complaints and that his pain was under control.

In a letter dated May 19, 2020, OWCP requested that Dr. Anderson explore alternative 

treatment options to reduce what appeared to be a concerning level of medication. 

In a June 23, 2020 report, Dr. Anderson reiterated that appellant was doing well and his 

pain was under control. He stated that appellant did not have any complaints regardingside effects 

of his medication.

In a letter dated August 17, 2020, OWCP again requested that Dr. Anderson explore 

alternative treatment options to reduce what appeared to be a concerning level of medication. No 

response was received.

By decision dated September 1, 2020, OWCP’s hearing representative affirmed the 

February 12, 2020 decision.

LEGAL PRECEDENT

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of the compensation benefits.7 An injured employee who is either unable to return 

to the position held at the time of injury or unable to earn equivalent wages, but who is not totally 

disabled for all gainful employment, is entitled to compensation computed on loss of wage-earning 

capacity (LWEC).

8

Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages 

received by an employee if the earnings fairly and reasonably represent his or her wage -earning 

capacity.9 Reemployment may not be considered representative of the injured employee’s wage7

See B.H., Docket No. 20-0729 (issued March 19, 2021); J.F., Docket No. 19-0864 (issued October 25, 2019); 

C.H., Docket No. 19-0136 (issued May 23, 2019).

8

Id.

9

5 U.S.C. § 8115(a).
6

earning capacity when an injured employee has been released to full-time work but working less 

than full-time hours.10

If the actual earnings do not fairly and reasonably represent wage-earning capacity, or if 

the employee has no actual earnings, the wage-earning capacity is determined with due regard to 

the nature of the injury, the degree of physical impairment, the usual employment, age, 

qualifications for other employment, the availability of suitable employment, and other factors and 

circumstances, which may affect the wage-earning capacity in his or her disabled condition.11

Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor 

market under normal employment conditions. The job selected for determining wage-earning 

capacity must be a job reasonably available in the general labor market in the commuting area in 

which the employee lives. The fact that an employee has been unsuccessful in obtaining work in 

the selected position does not establish that the work is not reasonably available in his or her 

commuting area.12

OWCP must initially determine an employee’s medical condition and work restrictions 

before selecting an appropriate position that reflects his or her wage-earning capacity. The medical 

evidence upon which OWCP relies must provide a detailed description of the employee’s medical 

condition.13 Additionally, the Board has held that a wage-earning capacity determination must be 

based on a reasonably current medical evaluation.14

In determining an employee’s wage-earning capacity based on a position deemed suitable, 

but not actually held, OWCP must consider the degree of physical impairment, including 

impairments resulting from both injury-related and preexisting conditions, but not impairments 

resulting from post injury or subsequently-acquired conditions. Any incapacity to perform the 

duties of the selected position resulting from subsequently-acquired conditions is immaterial to 

LWEC that can be attributed to the accepted employment injury and for which the claimant may 

receive compensation.15

When OWCP makes a determination of partial disability and of specific work restrictions, 

it may refer the employee’s case to a vocational rehabilitation counselor authorized by OWCP for 

selection of a position listed in the DOT or otherwise available in the open market, that fits the 

employee’s capabilities with regard to his or her physical limitations, education, age, and prior 

experience. Once this selection is made, a determination of wage rate and availability in the open 

labor market should be made through contact with the state employment service, local Chamber 

10 Federal (FECA) Procedure Manual, Part 2-- Claims, Determining Wage-Earning Capacity Based on Actual 

Earnings, Chapter 2.815.2(b) (June2013).

11 C.M., Docket No. 18-1326 (issued January 4, 2019).

12 Id.

13 J.H., Docket No. 18-1319 (issued June26, 2019).

14 Id.

15 Id.
7

of Commerce, employing establishment contacts, and actual job postings. 16 Lastly, OWCP applies 

the principles set forth in Albert C. Shadrick,

17 as codified in section 10.403 of OWCP’s 

regulations,18 to determine the percentage of the employee’s LWEC.19

ANALYSIS

The Board finds that OWCP has not met its burden of proof to reduce appellant’s wageloss compensation, effective February 14, 2020, based on his capacity to earn wages as a customer 

complaint clerk.

The issue of whether appellant has the physical capacity to perform a selected position is 

primarily a medical question that must be resolved by the medical evidence of record. 20 The 

selected position of customer complaint clerk is a sedentary position with occasional lifting of up 

to 10 pounds. OWCP determined that appellant’s wage-earning capacity was represented by the 

constructed position of customer complaint clerk, as it was within the medical restrictions provided 

by the treating physician, Dr. Bergey, to include no repetitive lifting, pushing, or pulling greater 

than 25 pounds, and limited bending and stooping.

However, Dr. Bergey, also opined that appellant developed psychosocial sequelae that 

limited his function after the initial incident and recommended a detoxification program for opioid 

dependence. Dr. Williams, a physiatrist and DMA, also indicated that she would recommend a 

detoxification program, if the diagnosis of opioid addiction was accepted by OWCP. OWCP 

referred appellant for a second opinion examination with Dr. Simonian, who also opined that 

appellant had developed an opioid dependence due to medication for his injury and advised that a

detoxification program would be appropriate. It subsequently accepted the condition of opioid 

dependence. In May 2019 OWCP referred appellant for a second opinion examination with

Dr. Bernhard who recommended a treatment program for appellant’s accepted condition of opioid 

dependence.

OWCP’s procedures provide that in assessing an employee’s ability to perform a 

constructed position, if the evidence is unclear, equivocal, or old enough to be considered stale, 

the claims examiner should seek clarification from a physician regarding the suitability of the 

position.21 The Board finds that the medical evidence of record is not clear and unequivocal in 

this case, given that there is no indication that appellant was provided with the opioid dependence 

treatment program recommended by OWCP’s second opinion physician, Dr. Bernhard, to deal 

16 C.M., supra note 11; Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, 

Chapter 2.813.19d (November 2011).

17 Supra note 6.

18 20 C.F.R. § 10.403.

19 5 U.S.C. § 8115(a).

20 See G.F., Docket No. 20-1031 (issued December 31, 2020); G.E., Docket No. 18-0663 (issued December 21, 

2018); Dennis D. Owen, 44 ECAB 475 (1993).

21 Id. at Chapter 2.816.4 (June 2013);see G.F., Docket No. 20-1031 (issued December 31, 2020); G.E., Docket No. 

18-0663 (issued December 21, 2018).
8

with the accepted condition of opioid dependence and there is no specific medical opinion of 

record from OWCP’s second opinion physician addressing whether or not appellant could perform 

the constructed position, given his accepted condition of opioid dependence, in conjunction with 

his other prescribed medications.22 OWCP, consequently, failed to meet its burden of proof to 

reduce appellant’s compensation effective February 14, 2020, based on a proper finding that he 

had the capacity to earn wages as a customer complaint clerk.23

The Board notes that Dr. Anderson, a treating physician, advised that appellant reported 

that he was doing well, his pain was under control, and he did not have any complaints about side 

effects of his medication. However, the Board also notes that by letters dated May 19 and 

August 17, 2020, OWCP requested that Dr. Anderson explore alternative treatment options to 

reduce what appeared to be a concerning level of medication. Appellant specifically testified at 

the hearing before an OWCP representative that his medication caused him to fall asleep on the 

job and as a result he was unable to perform the constructed position. 

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

wage-loss compensation, effective February 14, 2020, based on his capacity to earn wages as a 

customer complaint clerk.

CONCLUSION

The Board finds that OWCP has not met its burden of proof to reduce appellant’s wageloss compensation, effective February 14, 2020, based on his capacity to earn wages as a customer 

complaint clerk.

22 See W.C., Docket No. 17-0562 (issued November 17, 2017).

23 Id.
9

ORDER

IT IS HEREBY ORDERED THAT the September 1, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: May 3, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board