United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

V.Y., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVY 

FACILITIES ENGINEERING COMMAND --

STATIONS, San Diego, CA, Employer 

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Docket No. 14-828 

Issued: November 18, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 25, 2014 appellant, through his representative, filed a timely appeal from the 

January 10, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) 

which affirmed the termination of appellant’s compensation benefits effective June 2, 2013. 

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 on appeal is whether OWCP properly terminated appellant’s wage-loss 

compensation effective June 2, 2013. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

 On April 19, 1995 appellant, then a 42-year-old pipefitter, was injured in a motor vehicle 

accident in the performance of duty. He stopped work on April 22, 1995. OWCP accepted the 

claim for a lumbar sprain and a consequential adjustment disorder, which resolved effective 

June 4, 1997. Appellant returned to light-duty work on June 19, 1995 and stopped work on 

January 16, 1996 because the employing establishment could not accommodate his work 

limitations. He underwent vocational rehabilitation but did not obtain employment.2 On May 2, 

2002 OWCP found that appellant was no longer totally disabled and reduced his compensation 

based upon his abilities to perform the duties of the constructed position of an information clerk. 

On June 11, 2003 it granted a schedule award for three percent permanent impairment of the left 

leg. Appellant’s wage-loss compensation was reinstated after the schedule award ended on 

August 14, 2003. He submitted work capacity evaluation forms from Dr. Antonio V. Yu, Jr., a 

Board-certified internist, indicating that he remained partially disabled and could not work more 

than two hours a day. 

On March 5, 2013 OWCP referred appellant for a second opinion, along with a statement 

of accepted facts, a set of questions and the medical record to Dr. Ronald Lampert, a Boardcertified orthopedic surgeon. 

In a March 20, 2013 report, Dr. Lampert noted appellant’s history of injury and treatment 

and noted his examination of appellant. His findings included that appellant walked with a cane 

in his right hand with a left antalgic gait. Dr. Lampert indicated that appellant could not stand on 

his heels or toes because of pain in his back. He determined that forward flexion was 5 to 10 

degrees and side to side bending was 5 to 10 degrees. Dr. Lampert advised that with “hardly 

touching his skin in the low back area he complains of pain in the low back. With minimal, 

pressure downward on his shoulders and minimal pressure downward on his head, appellant has 

severe pain in the low back area. With his arms at his sides and turning his entire trunk as one to 

the left and right he has pain in the low back area.” 

Dr. Lampert advised that “straight leg raise in the sitting position is to 90 degrees; 

however, in the supine position, straight leg raise bilaterally is to 10 degrees. However, 

appellant is able to sit up on the examining table with his knees essentially straight and his hips 

flexed at 90 degrees, which is essentially a 90-degree straight leg raise test. Strength of the hip 

flexors, knee extensors, hip abductors and hip adductors all have give-way sensation. There is 

decreased sensation in the lower extremities anterior, posterior, medial and lateral, less on the 

left than the right, however, the right is not normal either. All of the above are not consistent 

with a true physiological or organic problem but would be consistent with a symptom 

exaggerator.” 

Dr. Lampert diagnosed low back pain and radicular pain by history. He opined that he 

could find no objective findings to indicate any residuals of a lumbosacral strain. Dr. Lampert 

explained that appellant’s symptoms were extremely out of proportion to his physical findings, 

 2

 Appellant has several conditions which were not accepted as work related. They include preexisting chronic 

low back pain, chronic leg pain, herniated lumbar disc at L4-5, low back syndrome and cervical and thoracic strain. 
3

which were consistent with a symptom exaggerator. He also indicated that appellant could 

return to any work that he was qualified to do without restrictions as he was no longer disabled in 

any way due to his work injury. 

On April 9, 2013 OWCP issued a notice of proposed termination of wage-loss and 

medical benefits. It found that the weight of the medical evidence, as represented by the report 

of Dr. Lampert established that appellant had no continuing work-related disability or objective 

residuals of his April 19, 1995 employment injury. 

In an April 15, 2013 statement, appellant indicated that he disagreed with the proposed 

termination and argued that his work-related condition continued. He argued that Dr. Lampert’s 

examination was flawed, erroneous, speculative and insufficient to establish that he was no 

longer disabled. Appellant also provided additional evidence that included a March 19, 2013 

report from Dr. Yu who stated that appellant was under his care since 2007. Dr. Yu noted that 

besides appellant’s multiple medical problems, he continued to have pain in his lower back, legs, 

and feet which he described as knife like and as an electric shock, especially in the standing 

position, as well as walking and sitting for prolonged periods. He explained that this interfered 

with his sleep and caused him to have mood disorder and depression. Dr. Yu noted that the 

examination revealed a limp on his gait, hyperreflexia and noticeable spasticity. He advised that 

the magnetic resonance imaging (MRI) scan, revealed bulging and degenerative discs. Dr. Yu 

opined that he hoped appellant remained stable and indicated that appellant had permanent nerve 

damage with a guarded prognosis. 

In an April 24, 2013 report, Dr. Demetri Adarmes, a Board-certified physiatrist, noted 

appellant’s history and treatment including the 1995 work injury and a preexisting serviceconnected low back problem from the 1980’s. Findings included normal range of motion of the 

hips, knees and ankles bilaterally with no joint or muscular tenderness. For the spine, appellant 

had forward flexion to 35 degrees, extension to 10 degrees and 20 degrees of lateral bending. 

Appellant had a negative right-seated straight leg raise test and a positive left-seated straight leg 

raise test at 60 degrees. He also had pain with facet loading maneuvers and tenderness and 

spasm of the lower lumbar paraspinal muscles. Sensation was diminished to pinprick in the 

bilateral L4 and L5 dermatomes. March 18, 2013 lumbar x-rays showed mild-to-moderate 

bulges from L3 to S1 with mild to moderate degenerative changes. Dr. Adarmes diagnosed 

lumbar sprain, preexisting lumbar degenerative disc disease that was permanently aggravated by 

the April 19, 1995 incident, and bilateral lower lumbar radicular pain related to the April 19, 

1995 incident. He also noted that the main focus of Dr. Lampert’s examination was to elicit 

Waddell’s signs. Dr. Adarmes advised that Section 2.56, page 27, of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2009) (A.M.A., Guides) 

explained that “cultural differences between the examiner and the patient can greatly increase the 

risk of the examiner misinterpreting the patient’s responses,” that “Waddell’s signs are not valid 

in non-Anglo cultures as the reliability has been tested only among English and North American 

patients,” and that, “When patients from a different culture have an unexpected response to 

treatment of their condition, consider cultural differences.”3

 3

 The record indicates that appellant was born in the Philippines. 
4

Dr. Adarmes opined that “what Dr. Lampert was observing are cultural differences in a 

response to pain behavior.” He also noted that Dr. Lampert had material deficits in his 

examination as there was no reflex examination, nor did his report note any limb girth 

measurements. Dr. Adarmes explained that his examination revealed a deficit to pinprick 

sensation, as noted. He stated that, while Dr. Lampert found a global decrease in sensation in 

both lower limbs, the method of testing the loss of sensation was not noted. Dr. Adarmes opined 

that, with regard to Dr. Lampert’s finding that appellant’s symptoms were “extremely” out of 

proportion to physical findings, “indicative of a symptom exaggerator,” this was improper as 

Dr. Lampert failed to take appellant’s ethnic background into consideration. He opined that the 

April 19, 1995 accident aggravated appellant’s preexisting condition that he developed while in 

the Navy. Dr. Adarmes explained that appellant had positive objective examination findings to 

show that there was some degree of impairment as a result of his lumbar spine condition. 

April 25 and 26, 2013 electromyography (EMG) scan and nerve conduction studies read by 

Dr. Adarmes, revealed evidence of lumbar radiculopathy. 

On May 16, 2013 OWCP received an undated report from Dr. Yu, who advised that 

appellant was under his care since November, 2007 for multiple medical problems. Dr. Yu noted 

that appellant was mostly suffering from his back, leg and feet pain coming from spinal 

neuropathy and radiculopathy which were severe enough to interfere with his daily living and 

quality of life. He related that appellant described “stabbing knife-like and electric shock type 

pains while standing, walking, during prolonged sitting and even when lying down in bed at 

night. Dr. Yu advised that this caused appellant to have hardly any restful sleep, related mood 

problems and depression. He noted that on his most recent visit he decided to reevaluate 

appellant’s spinal cord and nerves. Dr. Yu indicated that appellant had an MRI scan which 

revealed bulging discs and annular tear on the left at L3-4; focal disc herniation and posterior 

annular tear at the left neural foraminal level of L4-5 resulting in contact and impingement upon 

the left L4 exiting nerve root out laterally; L5-S1 right focal neural and foraminal disc herniation 

which also causes mild impingement upon the right L5 exiting nerve root laterally. Appellant’s 

examination showed limping of his gait, hyperreflexia and spastic muscles all consistent with 

radiculopathy. Dr. Yu indicated that he hoped that appellant would stabilize, not worsen and 

cause permanent damage to his nerves without surgery. However, his overall prognosis 

remained guarded and he doubted that appellant would be able to engage in any gainful 

occupation. 

By decision dated May 17, 2013, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective June 2, 2013. It found that the weight of the medical opinion was 

represented by Dr. Lampert, the second opinion physician. 

On June 10, 2013 appellant requested a telephonic hearing, which was held on 

November 6, 2013. Appellant’s representative argued that an unresolved conflict in medical 

opinion existed between Dr. Lampert and Dr. Adarmes. The hearing representative indicated 

that appellant was in need of a medical opinion explaining why his preexisting condition 

continued to be aggravated by his work-related condition dating back to 1995, and how his workrelated condition continued to cause residuals and or disability causally related to the work 

injury. 
5

By decision dated January 10, 2014, an OWCP hearing representative affirmed the 

May 17, 2013 decision. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it bears the burden to justify 

modification or termination of benefits.4

 Having determined that an employee has a disability 

causally related to his or her federal employment, OWCP may not terminate compensation 

without establishing either that the disability has ceased or that it is no longer related to the 

employment.5

Section 8123(a) provides that, 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.6

 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to 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.7

ANALYSIS 

The Board finds that OWCP did not meet its burden to justify termination of benefits. 

OWCP based its decision to terminate appellant’s benefits effective June 2, 2013 on a 

March 20, 2013 report by Dr. Lampert, the second opinion physician, who opined that the 

original injury had long resolved. Dr. Lampert opined that there were no objective findings of 

any residuals of a lumbosacral strain and opined that appellant’s symptoms were extremely out 

of proportion to his findings. 

Alternatively, appellant provided an April 24, 2013 report from his physician 

Dr. Adarmes, who examined him, provided findings and opined that appellant’s accepted lumbar 

sprain remained active. Dr. Adarmes also found as well as supporting that the April 19, 1995 

work injury caused or aggravated appellant’s radicular symptoms and his preexisting 

degenerative lumbar condition. He disagreed with Dr. Lampert’s opinion that appellant 

exaggerated his symptoms. Dr. Adarmes also questioned whether Dr. Lampert performed a 

comprehensive examination, noting that Dr. Lampert did not report limb girth measurements or 

indicate if he performed a reflex examination. In contrast, he explained that his examination 

revealed deficits to pinprick sensation in the bilateral L4 and L5 dermatomes. Dr. Adarmes also 

 4 Curtis Hall, 45 ECAB 316 (1994). 

5 Jason C. Armstrong, 40 ECAB 907 (1989). 

6

 5 U.S.C. § 8123(a); Barry Neutuch, 54 ECAB 313 (2003). 

7

 20 C.F.R. § 10.321. 
6

observed that, while Dr. Lampert found a global decrease in sensation in both lower limbs, he 

did not note in his method of testing a loss of sensation. He concluded that appellant’s April 19, 

1995 work injury aggravated his preexisting condition and that his examination elicited positive 

objective findings to show that there was some degree of impairment as a result of his lumbar 

spine condition. 

Accordingly, at the time OWCP terminated appellant’s compensation on June 2, 2013 

there was an unresolved conflict in the medical opinion evidence as to whether he had residuals 

from the accepted employment injury. Both Dr. Lampert and Dr. Adarmes had the opportunity 

to examine him and the medical record, but each reached differing conclusions with regard to 

whether appellant had residuals from this accepted injury. The Board finds that the relevant and 

probative medical evidence is in equipoise. It is well established that where there exists 

opposing medical reports of virtually equal weight and rationale, the case should be referred to 

an impartial medical specialist for the purpose of resolving the conflict.8

 As OWCP failed to 

resolve the conflicting medical opinion evidence, the Board finds that it did not meet its burden 

of proof to terminate benefits.9

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof in terminating appellant’s 

compensation benefits effective June 2, 2013. 

 8 See Darlene R. Kennedy, 57 ECAB 414, 416 (2006). 

9

 Having issued a formal wage-earning capacity determination on May 2, 2002, such decision remains in place 

unless it is modified. See Katherine T. Kreger, 55 ECAB 633 (2004). However, in certain situations, unlike in the 

case, if the medical evidence is sufficient to meet OWCP’s burden of proof to terminate benefits, the same evidence 

may also negate a loss of wage-earning capacity such that a separate evaluation of the existing wage-earning 

capacity determination is unnecessary. See A.P., Docket No. 08-1822 (issued August 5, 2009). As explained, infra,

OWCP has not yet met its burden of proof. 
7

ORDER 

IT IS HEREBY ORDERED THAT the January 10, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: November 18, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board