United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.J., Appellant 

and 

ARCHITECT OF THE CAPITOL, CAPITOL 

BUILDING, S.W., Washington, DC, Employer 

__________________________________________ 

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Docket No. 13-1836 

Issued: March 5, 2014 

Appearances: Case Submitted on the Record

Richard A. Daniels, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 2, 2013 appellant filed a timely appeal from a May 1, 2013 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 the case. 

ISSUES 

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

and medical compensation benefits effective April 8, 2012; and (2) whether appellant established 

that he had any continuing disability or residuals relating to his accepted conditions after 

April 8, 2012. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On January 13, 2004 appellant, then a 40-year-old-motor vehicle operator (messenger), 

filed a traumatic injury claim alleging that on January 8, 2004 he injured his lower back while 

lifting xerox boxes. OWCP accepted the claim for lumbar disc syndrome with myelopathy. 

Appellant stopped work on January 12, 2004. OWCP paid compensation benefits and was 

eventually placed on the periodic rolls. 

On March 4, 2011 OWCP referred appellant, together with a statement of accepted facts 

and the medical record, to Dr. Kenneth M. Fine, a Board-certified orthopedic surgeon, for a 

second-opinion examination to determine the extent of his continuing employment-related 

residuals and disability. In a March 22, 2011 report, Dr. Fine noted the history of injury, 

provided examination findings and reviewed diagnostic imaging studies from 2004. He 

diagnosed a low back strain or sprain connected to the work injury but found no significant 

clinical signs of myelopathy as his reflexes were normal and appellant did not have clonus or 

down going toes. Dr. Fine further stated that there were no objective complaints. He advised 

that repeat diagnostic studies were needed as earlier studies revealed right L5 and bilateral S1 

radiculopathy with peripheral neuropathy and disc desiccation and bulging at L5-S1 with no disc 

herniation. Following further diagnostic testing, which included a bone scan, an magnetic 

resonance imaging (MRI) scan and electromyogram (EMG) and nerve conduction velocity 

(NCV) studies, Dr. Fine opined in a May 31, 2011 addendum that appellant had no restrictions 

related to his work injury and would be able to work light duty and with proper treatment, full 

duty. Based on the results of recent diagnostic testing, he indicated that there may be an issue 

with respect to a peripheral neuropathy, but opined it was not related to appellant’s work injury. 

Appellant’s treating physician, Dr. Hampton J. Jackson, Jr. a Board-certified orthopedic 

surgeon, continued to diagnose lumbar disc injury at L5-S1 and chronic lumbar radiculopathy as 

causally related to the work injury. He further stated that appellant’s back pain was significant 

with any prolonged standing, walking and sitting and noted that appellant avoids lifting, pushing 

and pulling. In a June 6, 2011 report, Dr. Jackson stated that appellant’s condition was 

radiculopathy, not a neuropathy and although he was diabetic, his symptoms were not related to 

diabetes. On October 19, 2011 he referred to a website in support of his conclusion that the work 

injury had caused a chemical radiculitis and chronic pain syndrome. Dr. Jackson also cited MRI 

scan evidence of an L5-S1 protrusion causing an impression on the thecal sac. 

OWCP found a conflict in medical opinion between Dr. Fine, the second opinion 

examiner, and Dr. Jackson, appellant’s treating physician, as to whether appellant had any 

continuing residuals or disability due to his accepted employment injury. On October 31, 2011 it 

referred appellant, together with a statement of accepted facts and the medical record, to 

Dr. Robert O. Gordon, a Board-certified orthopedic surgeon, for an impartial medical 

examination. 

In a November 22, 2011 report, Dr. Gordon noted several inconsistent and nonanatomic 

findings on examination. He found neurological examination of the extremities, including 

motor, sensory and reflex function, was within normal limits. Dr. Gordon noted that, while the 

EMG was interpreted to show evidence of radiculitis, he believed that the EMG testing was 

inaccurate with frequent false positives and was an unreliable indicator for radiculopathy. He 
3

recommended repeat EMG testing. Dr. Gordon further stated that the positive discography at 

L5-S1 was not surprising considering that appellant had some mild to moderate preexisting 

degenerative changes at L5-S1. He concluded that appellant sustained a muscular strain which 

had resolved with no residuals of injury on an objective basis. Dr. Gordon also agreed to review 

the recent diagnostic testing. On November 30, 2011 he reviewed MRI scans from May 12, 

2004 and April 25, 2011. Dr. Gordon found preexisting changes at L5-S1, which had not 

significantly progressed over the past seven years and were unrelated to the January 8, 2004 

work injury. 

On December 20, 2011 Dr. Jackson disputed Dr. Fine’s report and again cited his opinion 

regarding damaged tissues and the release of a chemical which caused chemical radiculitis and 

chronic pain syndrome. 

On January 18, 2012 OWCP issued a notice of proposed termination of appellant’s 

compensation and medical benefits. 

In a January 12, 2012 report, Dr. Jackson noted his disagreement with Dr. Fine’s report 

and again cited his opinion regarding damaged tissues and the release of a chemical, which 

caused chemical radiculitis and chronic pain syndrome. Additional progress reports were also 

submitted. 

By decision dated February 22, 2012, OWCP terminated appellant’s medical and wageloss benefits effective March 11, 2012. It found that the weight of the evidence, as represented 

by Dr. Gordon’s opinion, established that his accepted conditions had ceased without residuals. 

On March 20, 2012 appellant, through his representative, disagreed with that decision 

and requested an oral hearing before an OWCP representative, which was held on June 14, 2012. 

In a May 23, 2012 report, Dr. Eric G. Dawson, an orthopedic specialist, noted the history 

of injury and appellant’s medical course.2

 He indicated that he had reviewed the MRI scan film 

taken at the request of Dr. Fine and concluded that it showed a “tangential tear with some healing 

in the annulus, which is consistent with an injury at this site at the time of the injury itself.” 

Dr. Dawson noted that the examination revealed positive straight leg raising, right lower 

extremity weakness and discomfort with heel walking on the right side. He concluded that 

appellant’s findings were consistent with L5-S1 disc rupture, which was consistent with an acute 

injury. Dr. Dawson noted EMG testing showed L5 impingement but was incomplete. He 

disputed Dr. Gordon’s opinion concerning the reliability of EMG testing and asserted it was the 

“the gold standard for nerve studies.” Dr. Dawson recommended that a new EMG be taken and 

if it showed signs of L5 impingement, it would be “gold standard documentation of injury to the 

nerve.” He also contended that Dr. Gordon’s report failed to define which muscle groups were 

tested and the response obtained. Dr. Dawson “saw nowhere that the myotome was directly 

tested” and “a general assessment was just made that it was normal.” 

 2

 Dr. Jackson, appellant’s treating physician, had passed away. The record is not clear how appellant came under 

the care of Dr. Dawson. 
4

A June 1, 2012 EMG was interpreted as showing evidence of bilateral L5-S1 

radiculopathy and axonal sensorimotor peripheral neuropathy. 

In a June 12, 2012 report, Dr. Dawson stated the June 1, 2012 EMG demonstrated 

bilateral L5-S1 radiculopathy, more severe on the right. He concluded that this demonstrated 

“signs of continued aggravation and exacerbation with acute on chronic” and “the [appellant] has 

an injury now rated as chronic because it has been present for greater than a year.” 

By decision dated September 10, 2012, an OWCP hearing representative found that 

OWCP met its burden of proof to terminate appellant’s compensation benefits but the additional 

medical evidence from Dr. Dawson was sufficient to warrant further development of the claim. 

The hearing representative remanded the case to OWCP with instructions that it request a 

supplemental opinion from Dr. Gordon to comment on Dr. Dawson’s report and explain whether 

the physical examination results obtained were sufficient to show that the injury-related 

condition had resolved. 

In an October 2, 2012 addendum, Dr. Gordon reviewed Dr. Dawson’s May 23, 2012 

report, which he found was one of the most unbelievable medical reports he ever reviewed and 

stated that his opinion had not changed from his prior opinion that appellant had no residuals or 

disability related to his work injury. He indicated that he conducted a thorough neurological 

examination, which included testing for motor, sensory and reflex function, all which tested 

completely normal. Dr. Gordon indicated that appellant’s physical examination and MRI scan 

were much more objective indications than appellant’s EMG/NCV studies. He also stated that 

appellant’s MRI scan reports “showed no acute post-traumatic lateralizing disc herniation or 

anything else related to this injury or anything that could explain his ongoing subjective 

complaints.” 

By decision dated October 23, 2012, OWCP affirmed the termination of appellant’s 

wage-loss and medical benefits effective April 8, 2012. Special weight was accorded to 

Dr. Gordon’s impartial medical opinion and subsequent response to Dr. Dawson’s May 23, 2012 

report. 

On October 26, 2012 appellant’s representative requested an oral hearing, which was held 

on February 11, 2013. Appellant’s representative argued that Dr. Gordon’s response to 

Dr. Dawson’s May 23, 2012 report was insufficiently rationalized to represent the weight of the 

medical evidence. 

In a November 9, 2012 report, Dr. Dawson provided examination findings and opined 

that appellant has a discopathy and neural radiculopathy. He stated that the 2004 MRI scan 

demonstrated a central disc protrusion at L5-S1 and the May 2012 repeat MRI scan of the lumbar 

spine shows a discopathy. Dr. Dawson indicated that Dr. Fine read this as a sagging of the disc 

at L5 and S1, which would be degenerative changes, but he had described what cuts to look at, 

noting the #18 demonstrated tangential tear with some signs of healing to the area, which was 

consistent with an old disc injury. He also indicated that appellant has significant nerve 

impingement which is documented by the EMG. Dr. Dawson also noted his disagreement with 

Dr. Gordon’s opinion, which he alleged was not medically accurate and which failed to provide 

an explanation as to why he believed that appellant had no radiculopathy or disc condition. 
5

By decision dated May 1, 2013, an OWCP hearing representative affirmed OWCP’s 2012 

termination of benefits. The hearing representative also found that appellant had not met his 

burden of proof to establish continuing disability after April 8, 2012. 

LEGAL PRECEDENT -- ISSUE 1 

According to FECA, once OWCP accepts a claim and pays compensation, it has the 

burden of justifying termination or modification of an employee’s benefits.3

 OWCP may not 

terminate compensation without establishing that the disability had ceased or that it was no 

longer related to the employment.4

 Its burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.5

 The 

right to medical benefits for an accepted condition is not limited to the period of entitlement for 

disability compensation.6

 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition, which 

require further medical treatment.7

 

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

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

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

shall make an examination.8

 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.9

 When there exists opposing medical reports of virtually equal weight and rationale and 

the case is 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.10 

ANALYSIS -- ISSUE 1 

OWCP accepted that on January 8, 2004 appellant sustained lumbar disc syndrome with 

myelopathy. Appellant stopped work and was placed on the periodic rolls. OWCP terminated 

appellant’s wage-loss and medical benefits effective March 11, 2012. By decision dated 

 3 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

4 Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 

ECAB 541 (1986). 

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

6 A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 

677 (2005). 

7 A.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002). 

8

 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 

(issued May 4, 2009). 

9

 20 C.F.R. § 10.321. 

10 Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001). 
6

September 10, 2012, however, an OWCP hearing representative found that the additional 

medical evidence from Dr. Dawson was sufficient to warrant further development of the claim. 

Following further medical development, in a decision dated October 23, 2012, OWCP affirmed 

the termination of compensation and medical benefits effective April 8, 2012 based on the 

reports of the impartial medical examiner, Dr. Gordon. By decision dated May 1, 2013, an 

OWCP hearing representative affirmed the October 23, 2012 decision. 

The Board finds that OWCP properly terminated appellant’s benefits effective April 8, 

2012 on the grounds that he no longer had any residuals or disability causally related to his 

accepted employment-related injuries. 

OWCP found a conflict in medical opinion between appellant’s physician, Dr. Jackson, 

Jr., who determined that appellant’s chronic lumbar radiculopathy and L5-S1 protrusion were 

causally related to the work injury, and Dr. Fine, the second opinion physician, who opined that 

appellant had no continuing employment-related residuals and disability. On appeal, appellant’s 

representative contends that OWCP erred when it referred appellant to Dr. Gordon for an 

impartial medical examination as a true conflict in medical opinion did not exist between 

Dr. Fine, the second opinion examiner, and Dr. Jackson, the treating physician. He further 

contends that, even if a true conflict in medical opinion existed, Dr. Gordon did not resolve the 

conflict. Contrary to appellant’s representative assertions, Dr. Fine had access to and reviewed 

the statement of accepted facts and appellant’s medical record, including diagnostic testing done 

in 2004. While Dr. Fine recommended further diagnostic testing to determine any restrictions 

based on preexisting conditions, he opined in his May 31, 2011 addendum report, that appellant 

had no restrictions related to his work injury and the peripheral neuropathy was not related to his 

work injury. This was in direct conflict with Dr. Jackson’s opinion that appellant continued with 

residuals and disability from his work injury. Accordingly, OWCP properly referred appellant to 

Dr. Gordon to resolve the conflict. 

In his November 22, 2011 report, Dr. Gordon provided an accurate history of injury and 

reviewed appellant’s medical records. He noted that diagnostic testing of record showed 

evidence of radiculitis, which he believed was inaccurate given the frequent false positives and 

positive discography at L5-S1, which was expected given appellant’s mild to moderate 

preexisting degenerative changes at L5-S1. Dr. Gordon recommended repeat diagnostic testing. 

Upon examination, he observed several inconsistent and nonanatomic findings but found a 

normal neurological examination of the extremities, which included normal findings for motor, 

sensory and reflex functions. Dr. Gordon concluded that appellant’s muscular strain had 

resolved with no residuals of injury on an objective basis. On November 30, 2011 he reviewed 

and compared MRI scans of May 12, 2004 and April 25, 2011. Dr. Gordon noted the preexisting 

changes at L5-S1 had not significantly progressed over the past seven years and opined that they 

were unrelated to the January 8, 2004 work injury. 

The Board finds that Dr. Gordon’s reports are sufficiently detailed and well reasoned to 

constitute the weight of the medical opinion evidence. When there exist opposing medical 

reports of virtually equal weight and rationale and the case is referred to an impartial medical 

specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently 
7

well rationalized and based upon a proper factual background, must be given special weight.11 

Dr. Gordon reviewed appellant’s history and accurately described the January 8, 2004 

employment injury. He conducted both a physical and neurological examination and found that 

the physical findings did not establish that he continued to suffer residuals or disability from his 

work-related injuries. Dr. Gordon determined that appellant’s present symptoms and diagnostic 

results of bilateral L5-S1 radiculopathy and peripheral neuropathy were unrelated to the 

January 8, 2004 work injury. The Board finds that his opinion represents the special weight of 

medical opinion evidence. Accordingly, Dr. Gordon’s opinion constitutes the special weight of 

evidence and is sufficient to justify OWCP’s termination of medical and wage-loss compensation 

benefits for the accepted conditions. 

LEGAL PRECEDENT -- ISSUE 2 

As OWCP met its burden of proof to terminate appellant’s medical and compensation 

benefits, the burden shifted to him to establish that he had continuing disability causally related 

to his accepted employment injury.12 To establish causal relationship between the claimed 

disability and the employment injury, appellant must submit rationalized medical opinion 

evidence based on a complete factual and medical background supporting such a causal 

relationship.13 

ANALYSIS -- ISSUE 2 

The Board finds that appellant has not established that he has any continuing residuals of 

his work-related lumbar disc syndrome with myelopathy on or after April 8, 2012. 

After the termination of benefits on April 8, 2012, appellant submitted a November 9, 

2012 report from Dr. Dawson, which provided examination findings and opined that appellant 

has a discopathy and neural radiculopathy. This report does not address how any continuing 

condition or medical restrictions and disability were causally related to the accepted work 

conditions. Additionally, OWCP never accepted that appellant developed discopathy and neural 

radiculopathy as a result of his January 8, 2004 work injury and there is no medical evidence to 

support such a conclusion. The Board has found that vague and unrationalized medical opinions 

on causal relationship have little probative value.14 Dr. Dawson also disagreed with 

Dr. Gordon’s opinion, which he alleged was not medically accurate and contained no rationale as 

to why he believed that appellant had no radiculopathy or disc condition. 

 11 Id. 

12 See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001). 

13 Daniel F. O Donnell, Jr., 54 ECAB 456 (2003). 

14 See Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not 

containing rationale on causal relationship are entitled to little probative value). 
8

Dr. Gordon opined in an October 2, 2012 addendum15 that his opinion had not changed 

from his prior opinion that appellant had no residuals or disability related to his work injury. He 

stated that appellant’s physical and neurological examination were normal and the MRI scan was 

more of an objective indication of appellant’s condition than the EMG/NCV studies. Dr. Gordon 

also stated that appellant’s MRI scan reports showed no acute post-traumatic lateralizing disc 

herniation or anything else related to the work injury or anything that could explain his ongoing 

subjective complaints. 

The Board finds that Dr. Dawson’s November 9, 2012 report is insufficient to overcome 

the special weight accorded to Dr. Gordon’s reports as the impartial medical examiner or to 

create a new conflict. 

None of the reports submitted by appellant after the termination of benefits included a 

rationalized opinion regarding the causal relationship between his current condition and his 

accepted work-related conditions. Consequently, appellant did not establish any employmentrelated condition or disability after April 8, 2012. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate appellant’s medical and 

wage-loss benefits effective April 8, 2012 and that he failed to establish that he had any 

continuing residuals or disability attributable to his accepted conditions after April 8, 2012. 

 15 This report was generated following the September 10, 2012 remand from OWCP’s hearing representative for 

Dr. Gordon to comment on Dr. Dawson’s May 23 and June 12, 2012 reports, which found that appellant had an L5-

S1 disc rupture consistent with an acute injury and chronic bilateral L5-S1 radiculopathy causally related to the work 

injury and the June 1, 2012 EMG study. 
9

ORDER 

IT IS HEREBY ORDERED THAT the May 1, 2013 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: March 5, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board