United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.G., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

JESSE BROWN MEDICAL CENTER, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 14-1799 

Issued: February 3, 2015 

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 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 12, 2014 appellant, through counsel, filed a timely appeal of a May 14, 2014 

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. 

ISSUES 

The issue is whether OWCP properly terminated appellant’s compensation for wage-loss 

and medical benefits effective September 23, 2013 on the grounds that he no longer had any 

residuals or disability causally related to his accepted employment-related injury. 

On appeal, counsel argues that the decision is contrary to law and fact. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 25, 2011 appellant, then a 58-year-old air conditioning equipment mechanic, 

filed a traumatic injury claim alleging that on December 27, 2010 he sustained contusion, groin 

pull, bruises, and sprain when he slipped on ice and fell. OWCP accepted the claim for a back 

contusion.2

 Appellant stopped work on January 19, 2011 and returned on May 11, 2011. 

On June 15, 2011 appellant filed a traumatic injury claim alleging that on June 8, 2011 he 

sustained bilateral lumbar and cervical muscle spasms due to moving heavy equipment and 

materials. OWCP accepted the claim for intervertebral lumbosacral degenerative disc disease 

and thoracic or lumbosacral radiculitis or neuritis.3 By letter dated March 9, 2012, it placed 

appellant on the periodic rolls for temporary total disability.4 

In progress notes and work status forms dated February 6, 2012, Dr. Robert E. Fink, a 

treating Board-certified orthopedic surgeon, provided physical findings and indicated that 

appellant was totally disabled for the period February 6 to March 14, 2012. He related that 

appellant had been referred for management of his chronic pain. 

On March 29, 2012 OWCP referred to Dr. James P. Elmes, a Board-certified orthopedic 

surgeon, for a second opinion evaluation to determine appellant’s current medical status and 

work capability. In an April 17, 2012 report, Dr. Elmes, based upon a review of appellant’s two 

employment injury claims, statement of accepted facts, review of the medical evidence and 

physical examination, diagnosed nonspecific low back, left radial wrist, left thumb, bilateral knee 

pain, bilateral ankle and mid-foot pain, lumbar disc bulge at L3-4, L5-S1, lumbar radiculopathy 

severe at left L-5 and mild to moderate at right S-1, lumbar degenerative disc disease at L4-5 and 

L5-S1 and thoracic disc bulge at T4-8. A physical examination of the back revealed some 

tenderness at the L4-5 and T6-7 levels, bilateral sacroiliac area, and bilateral posterior thighs. 

Dr. Elmes noted no spasm was present and range of motion of 10 degrees extension, 15 degrees 

lateral bending, and 45 degrees forward flexion. He indicated that at extreme range of motion 

appellant had 1+ low back pain. Dr. Elmes opined that the accepted December 27, 2010 lumbar 

contusion had healed with no disability or residuals. With respect to the June 8, 2011 

employment injury, he opined that appellant continued to have residuals from his lumbar 

degenerative disc disease and thoracic lumbar neuritis as appellant had not returned to his 

preinjury pain level. Lastly, Dr. Elmes stated that appellant was capable of working in a 

sedentary position with occasional standing and walking. 

In a June 27, 2012 report, Dr. Fink diagnosed lumbar bulging discs at L2-3, L3-4, L4-5, 

and L5-S1 with radiculopathy and bilateral neuroforaminal narrowing at these levels. He related 

 2

 OWCP assigned File No. xxxxxx804. 

3

 OWCP assigned File No. xxxxxx094. On September 28, 2011 it combined OWCP File Nos. xxxxxx804 and 

xxxxxx094, with the latter as OWCP Master File No. 

4

 In letters dated March 7 and April 11, 2012, the employing establishment informed OWCP that it had 

terminated appellant’s employment effective November 4, 2011 for cause. The employing establishment stated that 

the termination occurred during appellant’s probationary period and was due to written threats he had made against a 

federal employee. 
3

that appellant was last seen on February 6, 2012 and that he would need to be seen again for the 

physician “to voice any other type of opinion.” 

On August 30, 2012 OWCP referred appellant for an impartial medical examination with 

Dr. Jaroslaw Dzwinyk, a Board-certified orthopedic surgeon, to resolve the conflict in the 

medical opinion evidence between Dr. Fink, appellant’s treating Board-certified orthopedic 

surgeon, and Dr. Elmes, a second opinion Board-certified orthopedic surgeon, on the issues of 

recommended treatment and work-tolerance limitations. 

In a September 27, 2012 report, Dr. Dzwinyk provided a history of the employment 

injuries, review of the medical evidence, and physical findings on examination. He reported that 

appellant showed pain behaviors during the physical examination and arrived at the examination 

with a quad cane. Dr. Dzwinyk reported that, without the use of a cane, appellant walked with a 

limp on the left and slow gait. Examination findings for the back revealed a straight spine, level 

pelvis, no obvious spasm, and tenderness on superficial palpatation over the left lower lumbar 

area. Lumbar range of motion was voluntarily restricted to 30 degrees forward flexion and 10 

degrees extension. A review of the diagnostic testing revealed no significant stenosis or a frank 

disc herniation, which would “explain the lumbosacral nerve root pathology.” Dr. Dzwinyk 

related that appellant’s chronic arachnoiditis may explain the lumbar nerve root pathology. He 

concluded that there were no residuals or disability due to the accepted December 27, 2010 and 

June 8, 2011 employment injuries. In support of this conclusion, Dr. Dzwinyk noted the lack of 

any objective evidence of an acute injury following the two employment injuries. He opined that 

appellant’s “current symptoms are markedly out of proportion to the objective findings.” Next, 

Dr. Dzwinyk stated that appellant was partially disabled from working due “largely or mainly to 

the preexisting conditions.” He provided work restrictions which included no lifting more than 

25 pounds and avoiding twisting and bending. The work restrictions were unrelated to the 

accepted employment injuries, but were based on appellant’s symptoms secondary to his chronic 

preexisting conditions. 

On November 29, 2012 OWCP sought clarification from Dr. Dzwinyk on whether 

appellant continued to have residuals due to the accepted condtions and whether the work 

restrictions he provided were based on appellant’s pain complaints due to a nonaccepted 

condition or were due to the accepted December 27, 2010 and June 8, 2011 employment injuries. 

Dr. Dzwinyk was also asked to provide work restrictions if appellant continued to have any 

restrictions due to his accepted December 27, 2010 and June 8, 2011 employment injuries. He 

did not respond to OWCP’s request for clarification of his opinion. 

On May 24, 2013 OWCP referred appellant for a second impartial medical examination 

with Dr. Julie M. Wehner, a Board-certified orthopedic surgeon, to resolve the conflict in the 

medical opinion evidence between Dr. Fink, appellant’s treating Board-certified orthopedic 

surgeon, and Dr. Elmes, a second opinion Board-certified orthopedic surgeon, on appellant’s 

ability to work full time with restrictions. 

In a June 19, 2013 report, Dr. Wehner, based upon a review of the statement of accepted 

facts, medical evidence, employment injury histories, and physical examination, diagnosed 

chronic back pain. A physical examination revealed that appellant had a normal gait with his 

cane, that he had an antalgic gait on the left hand side without the cane, mild T8-12 pain with 
4

light palpation, moderate pain from L4-S1 with light palpatation, mild pain with axial 

compression, moderate pain with axial rotation, no pain on hip range of motion, and normal 

cervical range of motion. Dr. Wehner noted that appellant has had chronic back pain since a 

2001 motor vehicle accident and a 1971 military service injury. A review of a December 27, 

2010 thoracic spine x-ray interpretation revealed mild bony spurring and no acute fracture. 

Dr. Wehner reviewed a July 23, 2011 magnetic resonance imaging (MRI) scan, which revealed 

disc bulges in the thoracic spine at T1-12. A March 13, 2012 MRI scan revealed a C5-6 and C6-

7 mild annular disc bulge and disc bulge at L5-S1. Dr. Wehner concluded that appellant no 

longer had any residuals or disability due to his accepted employment conditions. She noted that 

appellant’s December 27, 2010 slip and fall injury resulted in a back sprain/contusion and that 

the second injury on June 8, 2011 was a lumbar sprain due to moving tanks. A review of the 

radiographic findings following these injuries showed no new abnormalities and that the disc 

bulges seen were attributable to the normal aging process. Dr. Wehner stated that a comparison 

of MRI scans and computerized tomography scans prior and subsequent to the employment 

injuries showed no change. As there were no new radiographic findings following the 

employment injuries, appellant sustained soft tissue injuries which would resolve within 6 to 12 

weeks. Dr. Wehner concluded that appellant was capable of returning to full-duty work with no 

restrictions. She opined that he required no further medical treatment for the accepted 

employment injuries as they had resolved. In concluding, Dr. Wehner related that appellant “has 

very high subjective complaints without any specific clinical or radiographic findings” 

explaining the subjective complaints. 

In a July 15, 2013 report, Dr. Anatoly Rozman, a treating Board-certified physiatrist, 

reported that appellant was seen and treated for thoracic area pain. He concluded that appellant 

was disabled from performing his regular employment duties. 

On August 22, 2013 OWCP issued a notice proposing to terminate appellant’s 

compensation benefits based on Dr. Wehner’s opinion that he no longer had any disability or 

residuals due to his accepted employment injuries. 

Subsequent to the proposed notice, OWCP received progress notes dated August 19, and 

September 9, 2013 from Dr. Rozman, who in the August 19, 2013 progress notes, stated that 

appellant was seen for severe lower back pain complaints. Physical examination findings 

included six trigger points in the gluteal maximus muscle area and sacral area. In his 

September 9, 2013 progress note, Dr. Rozman reviewed Dr. Wehner’s report and disagreed with 

her conclusion that appellant sustained a soft tissue injury based on the acceptance of the claim 

for lumbar and thoracic disease and radiculopathy. He also disagreed that appellant could return 

to work with no restrictions and that a functional capacity evaluation was being considered. 

On September 19, 2013 OWCP received an undated letter from appellant disagreeing 

with the proposal to terminate his compensation benefits. Appellant argued that his arachnoiditis 

had been aggravated by his employment injuries and is not necessarily seen on objective testing. 

He stated that direct injuries to the spine can cause severe arachnoid inflammation, which may 

not be correlated with clinical findings and “can be extremely painful.” 

By decision dated September 23, 2013, OWCP finalized the termination of appellant’s 

compensation benefits effective that day. 
5

In a letter dated September 27, 2013, appellant’s counsel requested a telephonic hearing 

before an OWCP hearing representative, which was held on March 5, 2014. 

By decision dated May 14, 2014, the hearing representative affirmed the termination of 

appellant’s compensation. 

LEGAL PRECEDENT 

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.5

 After it has determined that, an 

employee has disability causally related to his or her federal employment, OWCP may not 

terminate compensation without establishing that the disability has ceased or that it is no longer 

related to the employment.6

 OWCP’s burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.7

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

entitlement for disability.8

 To terminate authorization for medical treatment, OWCP must 

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

require further medical treatment.9

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.10 Where a case is 

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

such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background must be given special weight.11

ANALYSIS 

OWCP accepted that appellant sustained a back contusion as the result of the accepted 

December 27, 2010 employment injury and intervertebral lumbosacral degenerative disc disease, 

and thoracic or lumbosacral radiculitis or neuritis as a result of the accepted June 8, 2011 

employment injury. By decision dated September 23, 2013, it terminated his compensation 

benefits effective that day on the grounds that he no longer had any residuals or disability due to 

his accepted employment injuries. An OWCP hearing representative affirmed the September 23, 

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

6 I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

7 See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988). 

8 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). 

9

 Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003). 

10 5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006). 

11 V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994). 
6

2013 decision. The issue on appeal is whether OWCP met its burden in terminating appellant’s 

compensation benefits. 

A conflict in medical opinion evidence existed between Dr. Fink, appellant’s treating 

physician, and the second opinion physician, Dr. Elmes, with regard to work capability and 

recommended treatment. OWCP properly referred appellant to Dr. Dzwinyk an impartial 

medical examiner, to resolve the medical conflict, pursuant to 5 U.S.C. § 8123(a). On 

November 29, 2012 it requested clarification from Dr. Dzwinyk on the issue of whether 

appellant’s work restrictions were due to the accepted employment injuries and whether he 

continued to have residuals due to the accepted conditions. As there was no response from 

Dr. Dzwinyk, OWCP properly referred appellant to a second impartial medical specialist.12

Dr. Wehner, the selected impartial medical specialist, conducted an impartial medical 

examination and issued a June 19, 2013 report in which she found that appellant no longer had 

any residuals due to either the December 27, 2010 or June 8, 2011 employment injuries. She 

noted her review of the statement of accepted facts and medical record. Dr. Wehner described 

the history of injury and appellant’s back pain complaints and performed a through physical 

examination. She advised that the physical examination revealed mild T8-12 pain with light 

palpation, moderate pain from L4-S1 with light palpatation, mild pain with axial compression, 

moderate pain with axial rotation, no pain on hip range of motion, and normal cervical range of 

motion. Appellant walked with a normal gait with his cane and an antalgic gait on the left hand 

side when walking without his the cane. Dr. Wehner determined that neither employment injury 

caused a permanent aggravation. She opined that the evidence supported that appellant sustained 

soft tissue injuries, which would resolve within 6 to 12 weeks as there were no new radiographic 

findings following the employment injuries. Dr. Wehner opined that appellant was capable of 

returning to full-duty work with no restrictions and that no further medical treatment was 

required for the accepted employment injuries as they had resolved. 

The Board finds that Dr. Wehner provided a comprehensive, well-rationalized opinion in 

which she clearly advised that any residuals of appellant’s accepted conditions had resolved and 

that he could return to full-duty work. Dr. Wehner’s opinion is therefore entitled to the special 

weight accorded an impartial examiner and constitutes the weight of the medical evidence.13 

There is no other medical evidence sufficient to overcome her opinion or to create a new medical 

conflict. OWCP therefore properly terminated appellant’s compensation benefits on 

September 23, 2013. 

The medical evidence subsequently submitted by appellant is insufficient to overcome 

the special weight accorded Dr. Wehner as an impartial medical specialist regarding whether he 

had residuals of his accepted conditions. In progress notes dated July 15 and August 19, 2013 

Dr. Rozman, a treating Board-certified physiatrist, reported that appellant was seen and treated 

for thoracic area pain. He opined that appellant was disabled from performing his regular 

 12 See Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 

1071, 1078 (1979). 

13 See S.R., Docket No. 09-2332 (issued August 16, 2010); R.C., 58 ECAB 238 (2006); Bryan O. Crane, 56 

ECAB 713 (2005); Sharyn D. Bannick, 54 ECAB 537 (2003). 
7

employment duties in the July 15, 2013 progress notes. On September 9, 2013 Dr. Rozman 

reviewed Dr. Wehner’s report and disagreed with her conclusion that appellant sustained a soft 

tissue injury based on the acceptance of the claim for lumbar and thoracic disease and 

radiculopathy. He also disagreed that appellant could return to work with no restrictions and that 

a functional capacity evaluation was being considered. Dr. Rozman did not discuss the accepted 

conditions or explain why appellant could not perform his usual job the July 15 and August 19, 

2013 progression notes. In his September 9, 2013 progress notes, he notes his disagreement with 

Dr. Wehner’s conclusion that the accepted employment injuries only resulted in soft tissue 

injures and that appellant was capable of working. Dr. Rozman provided, no physical findings 

other than mentioning trigger points, referenced no objective data or history of the employment 

injury, and provided no supporting rationale for his opinion that appellant continues to suffer 

from residuals of his accepted conditions or is totally disabled due to his accepted conditions. 

His progress notes are therefore insufficient to overcome Dr. Wehner’s report or to create a new 

medical conflict.14

The Board therefore concludes that Dr. Wehner’s opinion that appellant had recovered 

from the employment injury and was not disabled from work-related conditions entitled to the 

special weight accorded an impartial medical examiner.15 Further, the additional medical 

evidence submitted is insufficient to overcome the special weight accorded her as an impartial 

medical specialist regarding whether appellant had residuals or was totally disabled due to his 

accepted conditions. OWCP therefore properly terminated appellant’s compensation benefits 

effective September 23, 201316 

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 properly terminated appellant’s compensation for wage-loss 

and medical benefits effective September 23, 2013 on the grounds that he no longer had residuals 

or disability causally related to his accepted employment-related injury. 

 14 See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy 

Sidwell, 41 ECAB 857 (1990). The Board finds that Dr. Rozman’s progress notes contain no rationale on causal 

relationship upon which a new conflict might be based. 

15 See Sharyn D. Bannick, supra note 13. 

16 Manuel Gill, 52 ECAB 282 (2001). 
8

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 14, 2014 is affirmed. 

Issued: February 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board