United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Orlando, FL, Employer 

__________________________________________ 

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Docket No. 14-1425 

Issued: October 22, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 2, 2014 appellant, through counsel, filed a timely appeal from the March 14, 

2014 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. 

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective July 28, 2013 on the grounds that he had no 

residuals of his April 18, 2005 work injury after that date. 

FACTUAL HISTORY 

OWCP accepted that on April 18, 2005 appellant, then a 55-year-old transportation 

security screener, sustained lumbago, right knee contusion, right hip bursitis, lumbar radiculitis, 

 

 1 5 U.S.C. §§ 8101-8193. 
2

permanent aggravation of right hip arthritis, permanent aggravation of degenerative disc disease 

of the low back and spinal stenosis at the L3-4, L4-5 and L5-S1 levels.2

In an October 15, 2009 report, Dr. Kenneth Botwin, an attending Board-certified 

internist, stated that appellant was totally and permanently disabled due to several work-related 

conditions, including spinal stenosis of the lumbar region, lumbosacral radiculitis and 

degenerative joint disease of the lumbar region. 

In a report dated November 20, 2009, Dr. Narinder Aujla, a Board-certified orthopedic 

surgeon serving as an OWCP referral physician, found that appellant’s work-related conditions 

had resolved. He advised that appellant could only perform limited-duty work, but that his work 

restrictions were due to nonwork-related conditions. 

In February 2010 OWCP determined that there was a conflict in medical opinion between 

Dr. Botwin and Dr. Aujla on the issue of whether appellant had residuals of his April 18, 2005 

work injury. In order to resolve the conflict, it referred appellant, pursuant to section 8123(a) of 

FECA, to Dr. Emmanuel Scarlatos, a Board-certified orthopedic surgeon, for an impartial 

medical examination and an opinion on the matter. 

In a March 31, 2010 report, Dr. Scarlatos discussed appellant’s work and medical 

histories and reported findings on physical examination of appellant. He diagnosed degenerative 

disc disease with grade 1 spondylolisthesis of L4 on L5 and L5 on S1; degenerative arthrosis of 

the hips -- rule out focal avascular necrosis of the femoral heads; acquired bilateral foraminal 

stenosis at L4-5 and L5-S1; and resolved capsuloligamentous sprain of the right knee. 

Dr. Scarlatos opined that appellant’s low back and right buttock symptoms were due to his 

preexisting degenerative changes and stated, “There is no evidence to suggest that there has been 

an aggravation of this pathology....” Dr. Scarlatos noted that appellant was capable of engaging 

in some form of light or modified duties and stated that any work restrictions were “predicated 

upon the preexisting degenerative changes noted in the lumbar spine as well as the hips.” 

Appellant could not, however, return to his regular work for the employing establishment. 

In a May 19, 2010 decision, OWCP terminated appellant’s wage-loss compensation and 

medical benefits effective June 6, 2010. It found the March 31, 2010 report of Dr. Scarlatos 

established that appellant had no residuals of his April 18, 2005 work injury. In a December 17, 

2010 decision, an OWCP hearing representative affirmed the May 19, 2010 decision. 

In a decision dated October 19, 2011,3

 the Board reversed the December 17, 2010 

decision. The Board found that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective June 6, 2010. The Board found that the 

March 31, 2010 report of Dr. Scarlatos was not sufficiently rationalized to constitute the weight 

of the medical evidence with respect to appellant’s continuing work-related residuals. 

Dr. Scarlatos failed to address the fact that appellant’s claim was accepted for permanent 

aggravation of right hip arthritis and permanent aggravation of degenerative disc disease of the 

 2

 Appellant’s employment injuries were attributed to lifting a stack of plastic bins on April 18, 2005 and an 

incident on the same date when he twisted his trunk while tripping on a floor mat. 

3

 Docket No. 11-735 (issued October 19, 2011). 
3

low back. The Board noted that Dr. Scarlatos’ opinion was of limited probative value regarding 

appellant’s work-related residuals because it was not based on a complete and accurate factual 

and medical history. Dr. Scarlatos also failed to address whether all of appellant’s accepted 

work-related conditions had resolved; or whether appellant had disability or the need for medical 

care due to the work-related spinal stenosis. He stated that appellant continued to have 

symptoms in his right hip, but he did not provide any specific discussion of whether the accepted 

right hip bursitis had resolved. 

In a February 27, 2012 report, Dr. Botwin addressed the results of appellant’s diagnostic 

testing and reported findings on physical examination. He diagnosed spinal stenosis of the 

lumbar region, degeneration of lumbar and cervical discs, thoracic/lumbosacral neuritis or 

radiculitis, lumbar myofascial pain, joint hip pain, gait disturbance and sacroiliitis. Dr. Botwin 

stated that appellant was totally disabled on a permanent basis. On June 6, 2012 he diagnosed 

the same conditions and noted each of these conditions, except for sacroiliitis, were related to 

appellant’s April 18, 2005 work injury. Dr. Botwin reiterated that appellant was totally disabled. 

On July 30, 2012 OWCP referred appellant to Dr. Jonathan Black, a Board-certified 

orthopedic surgeon, for a second opinion examination in order to evaluate whether appellant 

continued to have wage loss and the need for medical treatment due to his April 18, 2005 work 

injury. 

In a September 19, 2012 report, Dr. Black discussed appellant’s April 18, 2005 work 

injury and reported the findings of his physical examination of appellant. He noted that 

appellant’s right knee contusion had resolved and stated that the physical examination did not 

confirm evidence of an active lumbar radiculopathy. Dr. Black stated that there was no evidence 

on physical examination of ongoing bursitis in appellant’s right hip and that diagnostic testing 

did not show the existence of significant hip arthritis. He noted that appellant primarily 

complained of low back pain and right hip pain, but opined that these complaints were related to 

age-related degenerative findings and deconditioning rather than the April 18, 2005 work injury. 

Dr. Black stated that appellant’s work-related injuries had resolved. He did not believe that 

appellant was capable of performing his date-of-injury position as a transportation security 

screener, but noted that the work restrictions he was imposing were based on age-related findings 

and not on the work-related injury. In an attached September 19, 2012 work restrictions form, 

Dr. Black stated that appellant could work eight hours per day with restrictions of lifting 30 

pounds for three hours per day. 

OWCP determined that a conflict in medical opinion arose between Dr. Botwin and 

Dr. Black regarding whether appellant continued to have residuals of his April 18, 2005 

employment injury. In order to resolve the conflict, it referred appellant, pursuant to section 

8123(a) of FECA, to Dr. Robert B. McShane, a Board-certified orthopedic surgeon, for an 

impartial medical examination. 

In an April 29, 2013 report, Dr. McShane discussed the mechanism of appellant’s 

April 18, 2005 work injury and detailed the diagnostic testing of his hips and back. He noted 

that appellant presently complained of right hip pain and low back pain with occasional radiation 

into both legs. A magnetic resonance imaging (MRI) scan testing of appellant’s back from 

February 2012 showed mild central and right neuroforaminal stenosis at L3-4, moderate central 

and bilateral neuroforaminal stenosis at L4-5, grade 1 spondylolisthesis at L4-5, moderate central 
4

and bilateral foraminal stenosis at L5-S1 and grade 1 spondylolisthesis at L5-S1. On 

examination of his back, appellant voluntarily flexed to 30 degrees, extended to 30 degrees and 

bent to his sides to 20 degrees. He displayed no spasms in his lumbar musculature and there was 

normal sensation in both legs. Appellant’s right hip internal rotation was normal, but external 

rotation was limited at 50 degrees. Dr. McShane noted that appellant complained of some mild 

right groin pain and that he was minimally tender to deep palpation over the greater trochanteric 

bursa. Appellant had some mild tenderness in the right sciatic notch, but not the left sciatic 

notch. Dr. McShane felt that appellant’s complaints of low back and hip pain were age related 

and were unrelated to the episodes that occurred on April 18, 2005. He found that appellant was 

not capable of performing his date-of-injury position as a transportation security screener. This 

disability was not due to the April 18, 2005 work injury, but rather was due to appellant being 

eight years older, somewhat overweight and deconditioned, and not having worked in the last 

eight years. Dr. McShane stated that appellant was capable of working a light-duty position as 

described in an attached work restrictions form.4

 He further stated: 

“It is my opinion that [appellant] has sustained a temporary aggravation of 

preexisting lumbar spondylolysis and degenerative arthritis of his right hip. His 

temporary right knee contusion has resolved completely. [Appellant] 

degenerative lumbar spondylolysis and mild degenerative arthritis of the right hip 

both preexisted the April 18, 2005 work injury. I do not find any evidence that 

the patient currently has any severe hip arthritis or any [avascular necrosis 

(AVN)] based on his February 2012 MRI [scan] of the pelvis. I feel that the 

patient’s temporary aggravation of these preexisting conditions has resolved at 

this point. The patient’s description of his injuries would suggest a minor twisting 

injury to his back, and a minor twisting injury to his right leg. Diagnostic studies 

in the form of x-rays and MRI [scan] very shortly after his injuries suggested 

significant degenerative changes in his low back, which would certainly be 

preexisting. Mild arthritis of the hip in a 55-year-old would not be unusual, and 

the patient’s follow[-]up MRI scan of the pelvis failed to show any evidence of 

any AVN or significant degenerative changes.” 

* * * 

“The patient’s aggravation to his preexisting degenerative changes is temporary. I 

would opine that the aggravation ceased one year status post his injuries. He does 

not have any permanent residuals from his April 18, 2005 injuries.” 

In a June 7, 2013 letter, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits on the grounds that he ceased to have residuals of his 

April 18, 2005 work injury. It noted that the proposed termination action was supported by the 

April 29, 2013 report of Dr. McShane, the impartial medical specialist. Appellant was provided 

with 30 days from the date of the letter to submit evidence and argument challenging OWCP’s 

proposed action. 

 4

 In an April 29, 2013 work restrictions form, Dr. McShane indicated that appellant could work eight days with 

restrictions of lifting, pushing and pulling 40 pounds and squatting or climbing for two hours per day. Appellant 

could perform each of the following activities for four hour per day: sitting, walking, standing, twisting, bending, 

stopping, operating a motor vehicle, lifting, pushing and pulling. 
5

Appellant submitted an April 3, 2013 pharmacy form, but he did not submit any 

additional medical evidence in response to OWCP’s June 7, 2013 letter. 

By decision dated July 18, 2013, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective July 28, 2013 on the grounds that he had no residuals of his 

April 18, 2005 work injury after that date. It founds that the weight of the medical evidence 

rested with the well-rationalized opinion of Dr. McShane. 

Appellant requested a telephone hearing with an OWCP hearing representative. During 

the hearing held on December 23, 2013, counsel asserted that the April 29, 2013 opinion of 

Dr. McShane was defective since he failed to recognize that OWCP had accepted that appellant 

sustained permanent aggravation of his right hip arthritis, permanent aggravation of his 

degenerative disc disease and spinal stenosis at L3-4, L4-5 and L5-S1. Counsel stated that 

Dr. Botwin provided new medical reports which showed that appellant continued to have 

residuals of his April 18, 2005 work injury. 

In a March 14, 2014 decision, OWCP’s hearing representative affirmed OWCP’s July 18, 

2013 termination decision noting that the weight of the medical evidence continued to rest with 

the opinion of Dr. McShane. The hearing representative indicated that Dr. McShane provided 

medical rationale for his opinion that appellant’s work-related conditions had resolved. OWCP’s 

hearing representative stated: 

“Although the claimant’s representative has indicated the impartial medical 

evaluator did not accept or recognize the accepted employment injuries, it is the 

opinion of this reviewer that although he only accepted such as [sic] temporary 

aggravation of degenerative disc disease and spinal stenosis at L3-L4 and L5-S1 

(rather than permanent), he has clearly and with rationale indicated the 

employment injuries to have resolved.” 

LEGAL PRECEDENT 

 Under FECA, once OWCP has accepted a claim it has the burden of justifying 

termination or modification of compensation benefits.5

 OWCP may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.6 

Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence 

based on a proper factual and medical background.7

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between 

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

the Secretary shall appoint a third physician who shall make an examination.”8

 In situations 

where there exist opposing medical reports of virtually equal weight and rationale and the case is 

 

 5 I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986). 

6 Charles E. Minniss, 40 ECAB 708, 716 (1989). 

 7 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

 8

 5 U.S.C. § 8123(a). 
6

referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of 

such specialist, if sufficiently well rationalized and based upon a proper factual background, 

must be given special weight.9

ANALYSIS 

OWCP accepted that on April 18, 2005 appellant sustained lumbago, right knee 

contusion, right hip bursitis, lumbar radiculitis, permanent aggravation of right hip arthritis, 

permanent aggravation of degenerative disc disease of the low back and spinal stenosis at the 

L3-4, L4-5 and L5-S1 levels. 

OWCP determined that there was a conflict in the medical opinion between Dr. Botwin, 

an attending Board-certified internist, and Dr. Black, a Board-certified orthopedic surgeon acting 

as an OWCP referral physician, on the issue of whether appellant continued to have residuals of 

his April 18, 2005 work injury. To resolve the conflict, OWCP properly referred appellant, 

pursuant to section 8123(a) of FECA, to Dr. McShane, a Board-certified orthopedic surgeon, for 

an impartial medical examination and an opinion on the matter.10

The Board finds that the April 29, 2013 report of Dr. McShane is not sufficiently 

rationalized to constitute the weight of the medical evidence regarding appellant’s work-related 

residuals.11

In his April 29, 2013 report, Dr. McShane failed to acknowledge that appellant’s claim 

was accepted for permanent aggravation of right hip arthritis and permanent aggravation of 

degenerative disc disease of the low back. He stated, “It is my opinion that [appellant] has 

sustained a temporary aggravation of preexisting lumbar spondylolysis and degenerative arthritis 

of his right hip.” This omission calls into question the probative weight to be accorded 

Dr. McShane’s opinion. Because his opinion is not based on a complete and accurate factual and 

medical history, it is of limited probative value on the relevant issue of this case.12 

Dr. McShane’s opinion is of limited probative value for the further reason that he failed to 

indicate whether all of appellant’s accepted work-related conditions had resolved. For example, 

he did not clearly indicate whether appellant no longer had disability or the need for medical care 

due to the accepted work-related spinal stenosis at L3-4, L4-5 and L5-S1. Appellant complained 

of pain radiating from his low back down into his legs and diagnostic testing showed foraminal 

encroachment at multiple lumbar disc levels, but Dr. McShane did not discuss whether the workrelated condition of lumbar radiculitis had resolved. For these reasons, Dr. McShane did not 

provide a rationalized medical opinion showing that appellant ceased to have work-related 

residuals causing wage loss or the need for medical care due to his April 18, 2005 work injury. 

Given that there is an unresolved conflict in the medical opinion evidence regarding whether 

appellant continues to have wage loss and the need for medical treatment due to his April 18, 

 

 9 R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 1010 (1980). 

10 See supra note 8. 

11 See supra note 9. 

12 See William Nimitz, Jr., 30 ECAB 567 (1979) (finding that a medical opinion must be based on a complete and 

accurate factual and medical history). 
7

2005 work injury, OWCP did not meet its burden of proof to terminate his wage-loss 

compensation and medical benefits effective July 28, 2013.13

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective July 28, 2013 on the grounds that he had 

no residuals of his April 18, 2005 work injury after that date. 

ORDER 

IT IS HEREBY ORDERED THAT the March 14, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: October 22, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 13 See Gail D. Painton, 41 ECAB 492, 498 (1990); Craig M. Crenshaw, Jr., 40 ECAB 919, 922-23 (1989) 

(finding that termination action was not supported when there was continuing conflict in medical opinion evidence 

regarding work-related residuals).