United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, LOS 

ANGELES INTERNATIONAL AIRPORT, 

Los Angeles, CA, Employer 

__________________________________________ 

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Docket No. 15-0305 

Issued: August 5, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 24, 2014 appellant, through counsel, filed a timely appeal from a 

September 3, 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 properly reduced appellant’s compensation effective 

January 14, 2014 based on its finding that he had the capacity to work in the selected position of 

information clerk. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 26, 2011 appellant, then a 44-year-old tractor trailer operator, filed a traumatic 

injury claim alleging that on that date he injured his left knee and low back when he slipped 

inside a trailer while pushing a container. He stopped work on August 26, 2011. OWCP 

accepted the claim for lumbar sprain and a left knee contusion. It paid appellant compensation 

beginning October 29, 2011. 

On October 4, 2011 OWCP referred appellant to Dr. John L. Howard, a Board-certified 

orthopedic surgeon, for a second opinion examination. In a report dated October 24, 2011, 

Dr. Howard diagnosed status post lumbosacral strain and left knee strain. He found that 

appellant could resume work without restrictions. 

On December 9, 2011 OWCP notified appellant of its proposed termination of his 

compensation and authorization for medical benefits as he had no residuals of his accepted work 

injury. 

In a report dated November 11, 2011, received by OWCP on January 4, 2012, Dr. Serge 

Obukhoff, a Board-certified neurosurgeon, obtained a history of appellant sustaining an injury on 

August 26, 2011 when he slipped while pushing a container onto a truck. On examination he 

found a loss of sensation at L4, L5, and S1 on the left and a positive straight leg raise. 

Dr. Obukhoff reviewed findings from a magnetic resonance imaging (MRI) scan study and 

requested that OWCP revise the accepted diagnoses to include a disc injury at L4-5 and L5-S1, 

disc herniation, canal stenosis, and radiculopathy.2

In a report dated November 21, 2011, Dr. I. Grant Orlin, an attending general 

practitioner, diagnosed a left knee contusion after an August 26, 2011 injury, left knee 

chondromalacia, and L4-5 and L5-S1 disc herniations with extrusion at L4-5 with an annular tear 

and left radiculopathy as found by Dr. Obukhoff. He found that appellant could work with 

restrictions including lifting no more than five pounds. 

On December 9, 2011 Dr. Obukhoff reviewed Dr. Howard’s report and challenged his 

findings. He requested that OWCP expand acceptance of appellant’s claim to include disc 

herniations at L5-S1 and L4-5 resulting in radiculopathy and pain syndrome of the back. 

Dr. Obukoff opined that appellant was not able to perform his usual employment. He stated: 

“[Appellant] was injured on August 26, 2011 as described in my initial report. 

The mechanism of injury produced significant stress to his lumbar spine muscles, 

[which] most likely were not able to sustain the pressure on his lumbar spine and 

ligaments failed around the disc and [he] developed [an] annular tear around the 

disc and disc material herniated and migrated all through the disc space. This has 

explained [the] acute severe pain syndrome with radiculopathy due to 

compression.” 

 2

 An MRI scan study performed on November 9, 2011, received by OWCP on January 9, 2012, showed disc 

protrusions at L4-5 and L5-S1 without spinal stenosis or foraminal narrowing. 
3

In a report dated December 19, 2011, Dr. Orlin noted that appellant experienced a sharp 

pain at work on December 17, 2011 which caused him to fall on his back. He diagnosed a left 

knee contusion occurring on August 26, 2011, disc herniations at L4-5 and L5-S1 with an annual 

tear, left radiculopathy, and decreased sensation and motor strength, left knee chondromalacia, 

and increased lumbar pain and radiculopathy after a fall on December 17, 2011. 

On January 11, 2012 OWCP requested that Dr. Howard review the December 9, 2011 

report of Dr. Obukoff, the December 19, 2011 report of Dr. Orlin, and the November 9, 2011 

MRI scan study and address whether the additional evidence altered his opinion. In a 

supplemental report dated January 23, 2012, Dr. Howard advised that his opinion was unchanged 

and that the MRI scan findings were diagnostic in nature rather than functional. 

OWCP determined that a conflict existed between appellant’s physicians, Dr. Orlin and 

Dr. Obukoff, and its referral physician, Dr. Howard, regarding whether appellant had further 

disability due to his August 26, 2011 work injury. It referred him to Dr. Ray Craemer, a Boardcertified orthopedic surgeon, for an impartial medical examination. In an accompanying 

statement of accepted facts, OWCP indicated that it had accepted appellant’s claim for lumbar 

and left knee strain. It also noted that it had accepted a lumbar strain due to a January 2011 

traumatic injury under another file number. 

In a report dated April 3, 2012, Dr. Craemer reviewed appellant’s history of injury and 

the medical reports of record. On examination, he found mild tenderness over the left patella and 

mild crepitation of the patellofemoral joint of the left knee. Regarding the low back, 

Dr. Craemer stated, “Although [appellant] does have subjective complaints somewhat in excess 

of his objective findings, he does have reproducible objective findings such as positive straight 

leg raising, decreased range of motion of the lumbar spine, and mild atrophy of the left calf with 

sensory changes.” He found that appellant needed further medical treatment for his back, but 

opined that he had no further disability or need for medical treatment due to his knee injury. 

Dr. Craemer diagnosed a hyperextensive ligamentous low back sprain with left radiculopathy 

and an improved left patella contusion with residuals of prepatellar bursitis due to the August 26, 

2011 work injury. He noted that appellant had experienced prior low back sprains without 

radiculopathy on January 22 and October 2010. Dr. Craemer further reviewed appellant’s 

history of a fall in December 2011, but opined that the fall did not alter his condition. He 

determined that appellant could work in a light-duty capacity lifting, pushing, and pulling up to 

10 pounds and sitting no more than 30 minutes without breaks. Dr. Craemer recommended 

epidural injections rather than surgery and electrodiagnostic testing. 

On May 10, 2012 OWCP requested that Dr. Orlin review and comment on Dr. Craemer’s 

report and treatment recommendations. 

In a report dated May 10, 2012, Dr. Orlin diagnosed a left knee contusion, disc 

herniations at L4-5 and L5-S1 with an annular tear and left radiculopathy, left knee 

chondromalacia, and increased lumbar and radicular symptoms due to a fall on 

December 17, 2011. He referred appellant to Dr. Gary Baker, a Board-certified anesthesiologist, 
4

for pain management, including lumbar epidurals.3

 Dr. Orlin found that appellant was disabled 

from work until June 17, 2012. 

In a work restriction evaluation dated May 26, 2012, Dr. Craemer determined that 

appellant could sit, reach, and reach above the shoulder for eight hours a day, stand, walk, twist, 

and bend for four hours a day, operate a motor vehicle at work and going to and from work for 

six hours a day, and push, pull, and lift up to 10 pounds for eight hours a day. He further advised 

that appellant required a 15-minute break every 2 hours. 

On June 28, 2012 OWCP referred appellant for vocational rehabilitation.4 

Electrodiagnostic testing performed July 2, 2012 yielded normal results. 

Appellant underwent a vocational assessment on August 28, 2012. On October 5, 2012 

the rehabilitation counselor recommended that OWCP approve a training plan in computer skills 

with the goal of finding him employment as an information clerk. 

On October 5, 2012 the rehabilitation counselor completed a job classification form for 

the position of information clerk. The position was sedentary and required a specific vocational 

preparation of four to six months. The rehabilitation counselor indicated that appellant would 

meet the requirements for the position by attending a four-month training program in “computer 

based office skills....” He found that the position existed in sufficient numbers within his 

geographical area as confirmed by “telephone contact with 10 employers” in the area at a median 

hourly wage of $13.02. 

On October 17, 2012 OWCP approved vocational training from October 29, 2012 to 

March 29, 2013. 

In reports dated March 4, 2013, Dr. Orlin found that appellant was totally disabled from 

March 4 to April 11, 2013. 

In March 2013, appellant received a certificate of completion in computer software 

applications from the vocational training facility. 

In an April 5, 2013 memorandum of conference, the rehabilitation counselor indicated 

that appellant had completed his training on March 20, 2013 but he still believed that he was 

totally disabled. OWCP advised appellant that it had not received any rational medical evidence 

supporting disability and informed him that the report of the impartial medical examiner 

constituted the weight of the evidence. 

In a report dated April 23, 2013, the vocational rehabilitation counselor noted that 

appellant related that he could not look for employment due to his low back pain. He noted that 

he was “noncompliant in [appellant’s] job placement efforts.” 

 3

 The record contains reports from Dr. Baker dated July 2012 through April 2013 describing his treatment of 

appellant for pain. 

4

 Dr. Orlin continued to submit progress reports throughout 2012 and 2013. 
5

In a closure memorandum dated April 23, 2013, an OWCP rehabilitation specialist 

identified the position of information clerk as a sedentary position suitable for appellant and 

reasonably available within his geographical area at a salary of $400.00 to $600.00 a week. He 

noted that appellant had not participated in job placement because he believed that his physical 

condition prevented him for seeking employment. 

In a report dated June 21, 2013, Dr. Obukoff diagnosed disc herniations at L4-5 and 

L5-S1 with broad tears and lumbar radiculopathy and attributed appellant’s condition to his 

August 26, 2011 work injury based on the mechanism of injury.5

 He noted that appellant had not 

improved and stated: 

“In the meanwhile, [appellant] is looking forward to trying to tolerate work and I 

do not mind him doing that. However, if his pain increases, the only solution for 

his injured back would be to offer him surgical treatment, which could include 

fusion. I do not think that simple microdiscectomy is going to be effective 

considering that most of [appellant’s] problem is rather severe lower pain 

syndrome.” 

In a report dated July 17, 2013, Dr. Orlin reviewed the findings of Dr. Obukoff and 

opined that appellant could perform modified employment lifting no more than five pounds, 

sitting up to two or three hours at one-half hour intervals, standing, bending, stooping, and 

walking a half hour for a total of three hours, no climbing, pushing, twisting or pulling, and 

driving a truck three hours a day. 

On October 22, 2013 OWCP notified appellant of its proposed reduction of his 

compensation based as he had the capacity to work as an information clerk earning $400.00 a 

week.6

 

On October 30, 2013 Dr. Orlin found that appellant could perform modified work duties 

sitting, standing, and walking up to four hours a day, lifting up to 5 pounds for four hours a day, 

and pulling and pushing up to 20 pounds for four hours a day. 

In a decision dated January 14, 2014, OWCP reduced appellant’s compensation benefits 

effective January 14, 2014 after finding that he had the ability to earn wages of $400.00 a week 

as an information clerk. It indicated that it had accepted his claim for lumbar sprain, a left knee 

contusion, and displacement of a lumbar intervertebral disc without myelopathy. 

 5

 A lumbar MRI scan study dated April 25, 2013 revealed left disc protrusions at L4-5 and L5-S1. In progress 

reports dated May 17 and June 20, 2013, Dr. Orlin found that appellant had not improved after three lumbar steroid 

injections. He recommended that Dr. Obukoff review the MRI scan study and advise whether he required surgery. 

Dr. Orlin found that appellant was disabled from employment. 

6

 On August 8, 2013 OWCP requested that Dr. Orlin clarify appellant’s work restrictions. In a duty status report 

dated August 26, 2013, Dr. Orlin found that he could work four hours a day. On August 29, 2013 he provided the 

same work restrictions as in his July 17, 2013 report. In a progress report dated September 30, 2013, Dr. Orlin 

advised that appellant did not want to undergo surgery. 
6

On January 21, 2014 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative.7 

On March 21, 2014 Dr. Obukhoff stated, “[Appellant] has a severe problem. He has 

two-level disc herniations at L4-5 and L5-S1 with severe degeneration with back pain, and 

radiculopathy, [and] failed epidural steroid injections. I have been requesting surgery for 

[appellant]. I do not think that [he] is able to go back to work and do any physical activity.”8

 

On April 2, 2013 Dr. Orlin noted that appellant experienced increased pain after 

performing housework a week earlier. In a report and disability certificate dated April 18 and 

June 9, 2014, he advised that appellant was totally disabled based on Dr. Obukhoff’s findings. 

On July 14, 2014 counsel argued that the loss of wage-earning capacity determination 

was based on an outdated publication. 

At the telephone hearing, held on July 14, 2014, counsel argued that OWCP should use 

O*Net rather than the Department of Labor, Dictionary of Occupational Titles. The hearing 

representative requested that he submit a medical report explaining why he could not perform the 

duties of an information clerk. Appellant related that in February 2014 he experienced increased 

back pain when mopping the kitchen floor. The hearing representative indicated that his 

physician should address whether any worsening of his condition was due to his accepted work 

injury rather than an intervening injury. 

By decision dated September 3, 2014, the hearing representative affirmed the January 14, 

2014 decision. She noted that under file number xxxxxx775 OWCP accepted that appellant 

sustained lumbosacral strain when bending down on January 22, 2010 and a left knee contusion 

and lumbar sprain due to his August 26, 2011 employment injury. 

LEGAL PRECEDENT 

Once OWCP has made a determination that a claimant is totally disabled as a result of an 

employment injury and pays compensation benefits, it has the burden of justifying a subsequent 

reduction of benefits.9

 Under section 8115(a), 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. If the actual earnings do not fairly and reasonably represent his or her 

wage-earning capacity, or if the employee has no actual earnings, his or her wage-earning 

capacity is determined with due regard to the nature of the injury, the degree of physical 

 7

 In a progress report dated February 3, 2014, Dr. Orlin related that appellant had experienced “a flare-up of 

severe back pain.” He recommended another surgical evaluation and found that he was totally disabled for two 

weeks. On February 17, 2013 Dr. Orlin found that he could resume modified employment with the previous work 

restrictions. 

8

 In a report dated February 21, 2014, Dr. Obukhoff diagnosed lumbar strain, disc herniations and tears at L4-5 

and L5-S1, and lumbar radiculopathy. He requested authorization for an anterior lumbar discectomy and fusion at 

L4-5 and L5-S1. 

9 T.O., 58 ECAB 377 (2007). 
7

impairment, his or her usual employment, age, qualifications for other employment, the 

availability of suitable employment, and other factors or circumstances which may affect 

wage-earning capacity in his or her disabled condition.10

When OWCP makes a medical determination of partial disability and of specific work 

restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for 

selection of a position listed in the Department of Labor, Dictionary of Occupational Titles 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.11 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 or other applicable service. Finally, application of the 

principles set forth in Albert C. Shadrick12 will result in the percentage of the employee’s loss of 

wage-earning capacity. 

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.13 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.

14

When an OWCP medical adviser, a second opinion specialist, or a referee physician 

renders a medical opinion based on an incomplete or inaccurate statement of accepted facts or 

that does not use the statement of accepted facts as the framework in forming the opinion, the 

probative value of the opinion is diminished or negated altogether.15 OWCP procedures specify 

that the statement of accepted facts must include a specific description of injury or exposure 

factors particularly in cases involving occupational disease.16

ANALYSIS 

OWCP accepted that appellant sustained lumbar strain and a left knee contusion as a 

result of an August 26, 2011 work injury. In its January 14, 2014 decision, it also indicated that 

 10 Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999). 

11 Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000). 

12 5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403. 

13 5 U.S.C. § 8123(a). 

14 20 C.F.R. § 10.321. 

15 See A.R., Docket No. 11-692 (issued November 18, 2011); Willa M. Frazier, 55 ECAB 379 (2004); Federal 

(FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 (October 1990). 

16 Federal (FECA) Procedure Manual, id. at Chapter 3.600.3(a)(4) (October 1990). 
8

it had accepted displacement of an intervertebral disc without myelopathy. The record, however, 

does not contain an acceptance letter advising appellant that OWCP had expanded his claim to 

include an intervertebral disc without myelopathy. The hearing representative, in her 

September 3, 2014 decision, did not include displacement of an intervertebral disc without 

myelopathy as an accepted condition. 

OWCP found that a conflict existed between Dr. Orlin and Dr. Obukhoff, appellant’s 

physicians, and Dr. Howard, who performed a second opinion examination, regarding whether 

he had any further disability or residuals of his accepted work injury. It referred appellant to 

Dr. Craemer, a Board-certified orthopedic surgeon, for an impartial medical examination. 

OWCP determined that the opinion of Dr. Craemer constituted the weight of the evidence and 

established that appellant had the physical capacity to work as an information clerk. 

Dr. Craemer, however, relied upon a statement of accepted facts that included only the 

conditions of left knee and lumbar strain. If OWCP has also accepted the displacement of an 

intervertebral disc, his opinion would be based on an inaccurate statement of accepted facts and 

would thus be of diminished probative value.17 As noted, to assure that the report of a medical 

specialist is based upon an accurate factual background, OWCP provides information to the 

physician through the preparation of a statement of accepted facts.18 Its procedures indicate that 

the accepted conditions must be included in a statement of accepted facts and that when a referee 

physician renders a medical opinion based on a statement of accepted facts which is incomplete 

or inaccurate or does not use the statement of accepted facts as the framework in forming his or 

her opinion, the probative value of the opinion is diminished.19 Dr. Craemer’s opinion is 

insufficient to resolve the conflict in medical opinion as it is unclear whether he relied upon an 

accurate statement of accepted facts. 

Consequently, the Board finds that the case should be remanded to OWCP for 

clarification of the accepted conditions and any further development needed to resolve the issue 

of whether appellant had the capacity to work as an information clerk. Following this and any 

necessary further development, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds that the case is not in posture for decision. 

 17 See supra note 15. 

18 See A.T., Docket No. 14-153 (issued July 2, 2014). 

19 See supra note 15; see also S.P., Docket No. 14-1053 (issued October 2, 2014). 
9

ORDER 

IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: August 5, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board