United States Department of Labor 

Employees’ Compensation Appeals Board 

___________________________________________

J.A., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, TINKER 

AIR FORCE BASE, OK, Employer 

___________________________________________

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Docket No. 14-1880 

Issued: April 8, 2015 

Appearance: 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 26, 2014 appellant filed a timely appeal from a May 28, 2014 Office of 

Workers’ Compensation Programs’ (OWCP) merit decision. 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 met its burden of proof to terminate appellant’s 

compensation benefits effective September 22, 2013. 

FACTUAL HISTORY 

On July 5, 2012 appellant, then a 44-year-old production controller, injured her back, 

when she reached down to pick up a pen that she dropped while sitting at her work desk. She 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

indicated that she felt an excruciating pain in her back and she fell out of her chair onto the floor 

injuring her left knee. Appellant stopped work on the date of injury. OWCP accepted the claim 

for aggravation of preexisting displacement of lumbar intervertebral disc without myelopathy, 

aggravation of preexisting thoracic or lumbosacral neuritis or radiculitis, lumbar sprain, and left 

leg and knee sprain. Appellant received appropriate benefits. 

In a July 13, 2012 report, Dr. Stephen Wilson, a physiatrist and orthopedic surgeon, noted 

examining appellant for injuries sustained in a July 5, 2012 incident. Appellant reported 

continued lumbar spine and left knee pain with shooting pain into both legs. Dr. Wilson advised 

that she had a lumbar spine injury on May 19, 2012 and that a magnetic resonance imaging 

(MRI) scan taken on June 8, 2012 showed degenerative disc disease and a broad-based bulge at 

L4-5 with mild impression on the anterior thecal sac. He stated that pain from this injury was 

ongoing at the time of the July 5, 2012 fall. X-rays showed degenerative disc disease most 

prominent at L5-S1. Left knee x-rays showed mild medial joint space narrowing and decreased 

spacing of the patellofemoral joint. Dr. Wilson diagnosed lumbar spine sprain, left knee sprain, 

and aggravations of lumbar spine disc bulge and radiculopathy. He opined that appellant was 

totally disabled. 

On December 28, 2012 OWCP referred appellant for a second opinion evaluation to 

Dr. Dennis Foster, a Board-certified orthopedic surgeon. In a January 16, 2013 report, Dr. Foster 

noted appellant’s history, including her preexisting lower back condition and seizure disorder. 

He noted that lumbar spine x-rays were normal. Dr. Foster examined appellant’s lower back and 

found minimal complaints of discomfort on deep palpation at the lumbosacral region. His 

findings included that he found no spasm of the musculature, good range of motion, negative 

straight leg raise and no neurological deficits. Dr. Foster explained that appellant had no 

evidence of neuropathy or neurological deficit, no significant lumbar spine pain, normal range of 

motion, and no evidence of any disabling problem relative to her lower back. He advised that 

she stopped work on July 5, 2012 and that the aggravations of her lumbar disc displacement had 

resolved. Dr. Foster opined that the accepted conditions of aggravation of lumbar disc 

displacement, aggravation of lumbar neuritis/radiculitis, and lumbar and left knee sprain had 

resolved. He found appellant capable of performing her regular duties and released her to full 

duty. 

In a January 17, 2013 addendum, Dr. Foster advised that the period of aggravation of 

appellant’s preexisting lumbar radiculitis caused by the work injury had resolved. He explained 

that he could find no evidence of any lumbar radiculitis, and while he could not specify the exact 

period when it ceased, “there was no evidence of any continuing lumbar radiculitis at this point 

in time.” 

In a letter dated January 23, 2013, OWCP requested that the treating physician, 

Dr. J. Arden Blough, Board-certified in family medicine and an associate of Dr. Wilson, review 

the report of Dr. Foster and provide an opinion with regard to whether he agreed with the 

findings. 

In a January 31, 2013 report, Dr. Blough responded that he did not agree with the 

findings and advised that appellant’s condition had not resolved and she was unable to return to 

full duty. He diagnosed: lumbar sprain, lumbar disc displacement, and lumbar radiculopathy. 
3

Dr. Blough opined that a functional capacity evaluation was needed to determine appellant’s 

work capabilities and work restrictions. 

In a February 1, 2013 report, Dr. Scott C. Robertson, a Board-certified neurosurgeon to 

whom appellant was referred by Dr. Blough, advised that her lumbar problems were preexisting 

and they may have been aggravated by her work but were not caused by her work. He advised 

that physical examination of the lumbar spine revealed no obvious deformities and no acute 

distress. On February 4, 2013 Dr. Blough examined appellant, noted diagnoses, and opined that 

she was totally disabled. 

In a February 8, 2013 report, Dr. Blough responded to OWCP’s January 23, 2013 letter. 

He disagreed with Dr. Foster regarding whether there were objective findings on examination. 

Dr. Blough advised that his physical examination of the lumbar spine revealed tenderness to 

palpation over the paravertebral musculature with palpable trigger points, decreased range of 

motion in all planes, positive straight leg raising on both sides, loss of sensation to monofilament 

testing in the bilateral legs, and weakness demonstrated with resisted bilateral hip, knee, and 

ankle flexion and extension, left greater than right. 

Dr. Blough provided findings for the left knee which revealed: decreased range of 

motion with flexion and extension, tenderness to palpation over the joint with crepitus and mild 

active joint effusion, and negative Drawer and McMurray’s tests. He also disagreed with 

Dr. Foster’s finding that the period of aggravation of lumbar spine displacement had resolved. 

Dr. Blough explained that appellant continued to suffer from low back pain and disability. 

Regarding left knee sprain resolution, Dr. Blough advised that appellant continued to 

improve and was approaching maximum medical improvement. However, additional treatment 

was warranted. Dr. Blough found appellant capable of some form of light-duty work activities, 

but it was difficult to determine her functional capacity. He continued to treat her and provide 

progress reports which indicated that she was disabled.2

 

On April 10, 2013 OWCP referred appellant, along with a statement of accepted facts and 

the medical record, to Dr. Sami R. Framjee, a Board-certified orthopedic surgeon, for an 

impartial medical evaluation to resolve the conflict in opinion between Drs. Blough and Foster 

regarding the resolution of her accepted condition and work restrictions. 

In a May 17, 2013 report, Dr. Framjee noted appellant’s history of injury and treatment. 

Appellant informed Dr. Framjee that in May 2012 she had low back pain with pain in both legs. 

She sought treatment and received an epidural steroid injection. On examination of the lumbar 

spine, findings included normal lumbar lordosis, no acute tenderness on palpitation, negative 

straight leg raise, and no neurological deficits on sensory examination. Dr. Framjee found a 

marked show of effort when requested to undergo range of motion. Examination of the left knee 

                                                             2

 On February 19, 2013 appellant had lumbar discogram performed by Dr. Darryl Robinson, a Board-certified 

physiatrist. In a March 1, 2013 report, Dr. Robertson reviewed her MRI scan results and x-rays and found some 

mild early lumbar spondylosis and disc degeneration with an annular tear at L4-5. No significant compromises of 

the spinal canal or nerve root impingement was noted. Dr. Robertson recommended physical therapy and an L4-5 

anterior lumbar interbody fusion. On April 4, 2013 Dr. Martin Lopez, a Board-certified anesthesiologist, performed 

a left lumbar facet injection at L4-5 and L5-S1. 
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was essentially normal. Appellant had a negative Apley’s and McMurray’s test as well as full 

extension to 130 degrees flexion. Dr. Framjee reviewed diagnostic testing and explained that the 

discogram revealed the presence of degenerative disc disease at L2-3, L3-4, L4-5, and L5-S1 

levels. He determined that appellant had a chronic history of low back pain that predated the 

July 5, 2012 incident and found no evidence of any anatomical injury to the lumbar spine 

secondary to the accident of July 5, 2012. Dr. Framjee found that the knee was normal on 

examination. He opined that appellant’s symptoms were nonspecific in nature and that there 

were no radicular symptoms on examination. Dr. Framjee explained that his examination of the 

lumbar spine revealed good range of motion, a negative straight leg raise, no neurological 

deficits of the right or left lower extremity, and the MRI scan of the lumbar spine was normal 

and age-appropriate. He determined that the accepted aggravation of the preexisting lumbar disc 

displacement, the aggravation of the preexisting lumbar radiculitis, and the accepted conditions 

of lumbar strain/sprain and left knee sprain had resolved. Dr. Framjee opined that the lumbar 

sprain should have resolved within three weeks postaccident, with the aggravation resolving by 

that time and that the left knee sprain should have resolved within one week postaccident. He 

further explained that appellant’s ongoing symptoms and treatment postaccident were not 

suggestive of any new injury, but rather were primarily symptoms in continuity. Dr. Framjee 

found that her continuing medical management was due to her preexisting low back condition. 

He advised that no further medical care was needed. 

On June 24, 2013 OWCP proposed to terminate appellant’s compensation as the weight 

of the medical evidence, as represented by the report of Dr. Framjee, established that the 

residuals of the work injury had ceased. 

In a July 15, 2013 report, Dr. Blough advised that he disagreed with Dr. Framjee. He 

opined that appellant’s low back, bilateral lower extremity radicular symptoms, and lumbar spine 

symptoms would not improve substantially with additional treatment or surgery. Dr. Blough 

explained that he had referred her for an updated lumbar MRI scan on July 10, 2013 which 

revealed not only the previous posterocentral disc bulge at L4-5, but also an annular tear present 

at the same level in addition to a new disc bulge at L3-4 with early left foraminal narrowing. He 

opined that these new physical findings confirmed his opinion that appellant’s lumbar spine 

injury was worsened resulting in a permanent aggravation of her previous lumbar bulge at L4-5 

as well as the presence of a new disc bulge at L3-4 after her fall on July 5, 2012. Dr. Blough 

explained that she was on pain medications that would cause a significant impediment while 

performing her work-related duties. He found appellant unable to perform any type of work 

requiring her to lift more than five to 10 pounds on a repetitive basis. Dr. Blough explained that 

she was able to tolerate only 40 minutes of sitting, 20 minutes of standing, or 30 minutes of 

walking, before developing increasing pain in her low back with radicular symptoms requiring a 

rest period. He opined that her condition would continue for the next 12 months and 

recommended medical retirement. 

On August 14, 2013 OWCP requested clarification from Dr. Framjee with regard to the 

MRI scan of July 10, 2013. 

In an August 26, 2013 addendum, Dr. Framjee explained that the findings from the 

July 10, 2013 lumbar MRI scan were not indicative of any injury secondary to the accident of 

July 5, 2012 but rather primarily indicative of nonspecific, minor degenerative changes. He 
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explained that appellant’s history, physical examination, review of medical records, and MRI 

scan report did not suggest any evidence of any anatomical injury to the lumbar spine secondary 

to the accident of July 5, 2012. Dr. Framjee explained that the work incident did not produce the 

MRI scan findings as described in the July 10, 2013 report. He advised that a discogram was an 

extremely controversial test and the mere presence of a concordant test did not constitute an 

injury process secondary to the July 5, 2012 accident. Dr. Framjee opined that, based upon 

appellant’s history and his physical examination and review of studies, it was his opinion that, 

based on the accepted employment conditions, she could return to her normal work. 

In a September 17, 2013 decision, OWCP terminated appellant’s compensation benefits, 

effective September 22, 2013, based on the opinion of Dr. Framjee, which established that she no 

longer had residuals of the accepted conditions. 

On September 25, 2013 appellant’s representative requested a telephonic hearing, which 

was held on March 13, 2014. In a January 3, 2014 report, Dr. Blough repeated his opinion that 

appellant remained temporarily totally disabled and unable to work. 

By decision dated May 28, 2014, the hearing representative affirmed the September 17, 

2013 decision. 

LEGAL PRECEDENT 

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

modification or termination of benefits.3

 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.4

 

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.”5 In situations 

where 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 well rationalized and based upon a proper factual background, 

must be given special weight.6

ANALYSIS 

OWCP accepted that appellant’s claim for aggravation of preexisting displacement of 

lumbar intervertebral disc without myelopathy, aggravation of preexisting thoracic or 

                                                             3 Curtis Hall, 45 ECAB 316 (1994). 

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

5

 5 U.S.C. § 8123(a). 

6 Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980). 
6

lumbosacral neuritis or radiculitis, lumbar sprain, and left leg and knee sprain. Appellant 

received appropriate benefits. 

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

OWCP referral physician, and Dr. Blough, an attending physician, regarding whether appellant 

continued to have residuals of her July 5, 2012 work injury.7

 In order to resolve the conflict, it 

properly referred her, pursuant to section 8123(a) of FECA, to Dr. Framjee for an impartial 

medical examination.8

 

In his May 17, 2013 report, Dr. Framjee advised that the left knee examination was 

essentially normal. He noted diagnostic testing, which revealed lumbar degenerative disc 

disease, and opined that appellant had a chronic history of low back pain that predated the 

incident of July 5, 2012. There was no evidence of any anatomical injury to the lumbar spine 

secondary to the July 5, 2012 injury. Dr. Framjee advised that appellant’s symptoms were 

nonspecific in nature as she had no radicular symptoms on examination. He found good range of 

motion of the lumbar spine, a negative straight leg raise, no neurological deficits in either leg, 

and that an MRI scan of the lumbar spine was normal and age-appropriate. Dr. Framjee opined 

that the accepted aggravation of the preexisting lumbar disc displacement, the aggravation of the 

preexisting lumbar radiculitis and the accepted conditions of lumbar strain/sprain and left knee 

sprain had resolved. He explained that the lumbar sprain should have resolved within three 

weeks postaccident and that the left knee sprain should have resolved within one week 

postaccident. Dr. Framjee further explained that her ongoing symptoms and treatment 

postaccident were not suggestive of any new injury but rather were primarily symptoms in 

continuity of preexisting conditions. He advised that no further medical care was needed. 

After OWCP proposed to terminate her benefits, appellant submitted a July 15, 2013 

report from Dr. Blough, who repeated his opinion that she remained disabled due to her work 

injury. Dr. Blough referenced a July 10, 2013 lumbar MRI scan on which he found a new 

annular tear and a new disc bulge at L3-4 with early left foraminal narrowing. He opined that 

these new physical findings confirmed his opinion that the work injury appellant’s lumbar spine 

permanently aggravated condition. 

On August 14, 2013 OWCP requested a supplemental report from Dr. Framjee with 

regard to the MRI scan of July 10, 2013.9

 On August 26, 2013 Dr. Framjee explained that the 

findings from the July 10, 2013 MRI scan were not indicative of any injury secondary to the 

accident of July 5, 2012. He advised that it was primarily indicative of nonspecific, minor 

degenerative changes. Dr. Framjee explained that appellant’s history, physical examination, 

                                                             7

 On January 16 and 17, 2013 reports Dr. Foster indicated that appellant’s accepted conditions had resolved. In 

contrast, Dr. Blough indicated in January 31 and February 8, 2013 reports that he did not agree with Dr. Foster’s 

conclusions and that appellant’s accepted conditions had not resolved and remained disabling. 

8 See supra note 5. 

9 Roger W. Griffith, 51 ECAB 491(2000) (when OWCP secures an opinion from an impartial medical specialist 

for the purpose of resolving a conflict in the medical evidence and the opinion from the specialist requires 

clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the specialist for the 

purpose of correcting a defect in the original report). 
7

review of medical records and MRI scan report did not suggest any evidence of anatomical 

injury to the lumbar spine secondary to the accident of July 5, 2012. He further advised that the 

mere presence of a condition on a discogram did not show an injury process secondary to the 

accident of July 5, 2012. Dr. Framjee opined that, based upon appellant’s history and his 

examination and review of studies, it was his opinion that, based on the accepted work condition, 

she could return to her normal work. 

The Board finds that Dr. Framjee’s opinion is well rationalized and represents the weight 

of the medical evidence regarding appellant’s accepted conditions. Dr. Framjee provided a 

thorough factual and medical history and accurately summarized the relevant medical evidence.10 

Because appellant no longer has residuals or disability related to her accepted employment 

condition, OWCP properly terminated entitlement to wage-loss compensation and medical 

benefits effective September 22, 2013. Accordingly, OWCP’s decision to terminate her 

compensation and medical benefits shall be affirmed. 

OWCP received a January 3, 2014 report from Dr. Blough, who merely reiterated 

previously stated findings and conclusions regarding appellant’s condition. As Dr. Blough had 

been on one side of the conflict in the medical opinion, this report is insufficient to overcome the 

special weight accorded the impartial specialist or to create a new medical conflict.11

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 benefits 

effective September 22, 2013. 

                                                             10 See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957). 

11 See Jaja K. Asaramo, 55 ECAB 200 (2004). 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 28, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 8, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board