United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Carol Stream, IL, 

Employer 

__________________________________________ 

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Docket No. 16-0648 

Issued: July 21, 2016 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On February 18, 2016 appellant, through his representative, filed a timely appeal from a 

December 16, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2 (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 met its burden of proof to justify termination of appellant’s 

wage-loss and medical benefits for his accepted injuries effective February 25, 2015. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On November 4, 2008 appellant, then a 47-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) for injuries to his back, left buttocks, and left thigh that he sustained on 

October 29, 2008 while unloading a trailer of recycled mail. OWCP accepted the claim for 

lumbar strain on November 14, 2008. On December 24, 2008 it accepted an additional condition 

of lumbar disc herniation, and on June 26, 2009 it accepted an additional condition of C4-5 left 

paracentral disc herniation. Appellant received supplemental roll benefits as of December 14, 

2008 and periodic roll benefits as of June 5, 2011. 

In a report dated February 12, 2014, Dr. Francisco Espinosa, a Board-certified 

neurosurgeon, examined appellant and diagnosed a bulging disc at C3-4; a herniated disc and 

osteophyte complex at C4-5 with indentation and compression of the spinal cord at C5-6; and 

foraminal stenosis with a bulging disc at L5-S1. He recommended that, due to spinal cord 

compression at C4-5 and C5-6, appellant needed to undergo surgeries including an anterior 

cervical discectomy; spinal cord decompression and fusion with instrumentation using Peek 

cages; bone graft, and plate screws; and laminectomy, foraminotomy; and nerve decompression 

at L5-S1. 

Appellant requested authorization on February 27, 2014 for surgical procedures including 

an anterior cervical discectomy; spinal cord decompression and fusion with instrumentation 

using Peek cages, bone graft, and plate screws; laminectomy; foraminotomy; and nerve 

decompression. 

By letter dated April 30, 2014, OWCP notified appellant that his request for authorization 

could not be approved at that time, and that a district medical adviser (DMA) would have to 

review the request. On the same date, it referred appellant’s case history to a DMA, noting 

relevant underlying conditions of preexisting degenerative disc disease of the cervical and 

lumbar spine. OWCP requested that the DMA render an opinion on the issue of whether the 

requested surgeries were necessary to treat the accepted work injuries of October 28, 2008. 

By letter dated May 12, 2014, the DMA responded to OWCP’s request. He noted that 

appellant had been initially seen by a Dr. Montella on November 10, 2008. As early as 2009, 

Dr. Montella indicated that appellant had also injured his neck at work. However, there was no 

incident report of record relating any neck injury. Dr. Montella’s initial evaluation from 

November 10, 2008 did not discuss the neck. The DMA noted that appellant had degenerative 

conditions of his neck and low back. Given his preexisting degenerative disease of the neck and 

low back, it is much more likely true that any and all surgery as it related to appellant’s spine 

was due to a preexisting degenerative condition and not to any work injury. 

On June 5, 2014 OWCP forwarded the case file to Dr. Safwan Barakat, a Board-certified 

neurosurgeon, along with a statement of accepted facts, for an impartial medical evaluation in 

order to resolve the conflict of medical opinion between Dr. Espinosa and the DMA. 

Dr. Barakat was asked to resolve eight questions. First, OWCP requested that he determine 

whether the requested surgeries were necessary to treat appellant’s accepted work-related 

injuries; second, whether appellant’s current conditions were causally related to his accepted 

work-related injury; third, whether there were any additional work-related diagnoses; fourth, 

whether residuals of appellant’s work-related injuries existed, and to what extent any current 
3

conditions were related to natural age-related degenerative changes versus the original injury; 

fifth, what course of treatment would be recommended if the surgery were not approved; sixth, 

whether appellant was currently disabled from work; seventh, whether the treating physician’s 

work restrictions were appropriate; and eighth, when it was anticipated that appellant would 

reach maximum medical improvement. 

OWCP prepared a June 5, 2014 statement of accepted facts, which noted appellant’s 

history of injury, medical history, employment duties, as well as his preexisting degenerative 

disc disease of the cervical and lumbar spine. The statement of accepted facts did not state that 

any of appellant’s medical conditions had been accepted as employment related. 

In a report dated October 1, 2014, Dr. Barakat rendered his responses to OWCP’s 

inquiries based upon an examination and review of appellant’s records conducted on 

September 30, 2014. He noted that appellant’s requested surgery was not medically necessary to 

treat his work-related injury, as appellant presented with a preexisting degenerative disease of the 

lumbar spine and a disc bone complex degenerative condition in his cervical spine. Dr. Barakat 

noted that appellant’s symptoms on examination of the cervical area did not fit with the findings 

of previous diagnostic studies and did not comport with the purpose of the proposed surgery. He 

opined that appellant’s condition had returned to its preinjury status, namely the degenerative 

disease in his neck and back. Dr. Barakat noted that appellant had no additional work-related 

conditions, and that his condition was a degenerative disc disease resulting from natural wear 

and tear on the spine. He recommended no further treatment for this condition, as appellant had 

already undergone extensive physical therapy and an epidural steroid injection. Dr. Barakat 

opined that appellant was partially disabled from work as a result of his underlying and 

preexisting degenerative disc disease. He noted that appellant was not able to return to his 

preinjury position without restrictions, but that he may be able to work on restricted duty, after a 

functional capacity evaluation. Dr. Barakat observed that appellant had reached maximum 

medical improvement and had a fair prognosis. 

By decision dated October 24, 2014, OWCP denied appellant’s request for authorization 

of surgery. 

On January 7, 2015 OWCP proposed to terminate appellant’s medical and wage-loss 

compensation as Dr. Barakat had opined that appellant no longer had residuals of his workrelated injury. On the same date, it issued an updated list of appellant’s accepted conditions, 

which included sprain of the lumbosacral joint/ligament; displacement of the lumbar 

intervertebral disc without myelopathy; and displacement of the left cervical intervertebral disc 

without myelopathy. 

By decision dated February 25, 2015, OWCP terminated appellant’s medical benefits and 

wage-loss compensation. 

On March 3, 2015 appellant requested a telephonic hearing before an OWCP hearing 

representative. 

The hearing was held on October 13, 2015. At the hearing, appellant’s representative 

argued that Dr. Barakat’s report was speculative, because he only opined that the aggravation of 

appellant’s underlying degenerative conditions was temporary and had resolved. He further 
4

argued that Dr. Barakat’s opinion, that appellant’s condition was degenerative, was not well 

rationalized. Appellant stated that he had undergone the cervical surgery under his own private 

insurance, but that he had engaged with disputes with his insurance companies and the 

employing establishment with regard to his coverage. He reported that he still had symptoms of 

his conditions. Appellant asked how OWCP could update the list of accepted conditions and 

then immediately terminate his benefits. The hearing representative afforded appellant 30 days 

to submit additional evidence. 

In a report dated November 4, 2015, Dr. Espinosa reviewed appellant’s medical history 

and opined that the surgery for his cervical spine and lumbar spine should be approved, as it was 

related to his approved injury. 

By decision dated December 16, 2015, the hearing representative affirmed OWCP’s 

termination of appellant’s compensation benefits. She found that Dr. Barakat had been asked to 

resolve a conflict in medical opinion only on the issue of whether appellant’s surgeries ought to 

be authorized as work related. The hearing representative explained that because this was the 

scope of the conflict put before Dr. Barakat, he was not an impartial medical specialist on the 

issue of work-related residuals. However, she noted that Dr. Barakat’s report could still be 

considered for its own intrinsic value and therefore could still constitute the weight of the 

medical evidence on the issue of work-related residuals. The hearing representative found that 

Dr. Espinonsa’s November 4, 2015 report did not opine on the issue of whether appellant 

continued to suffer from work-related residuals related to the accepted injury of 

October 29, 2008. As such, she found that the weight of medical evidence remained with 

Dr. Barakat, and that as such OWCP met its burden of proof in terminating his compensation 

benefits. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation benefits.3

 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.4

FECA provides that, if there is a 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 the examination.5 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 or impartial examination and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.6

 3 Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000). 

4 Mary A. Lowe, 52 ECAB 223, 224 (2001). 

5

 5 U.S.C. § 8123(a). 

6

 20 C.F.R. § 10.321. 
5

To be of probative value, a medical opinion must be based on a complete factual and 

medical background, must be of reasonable medical certainty, and be supported by medical 

rationale.7

 Medical rationale is a medically sound explanation for the opinion offered.8

It is well established that, when 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.9

ANALYSIS 

OWCP found a medical conflict between appellant’s physician, Dr. Espinosa, and a 

DMA, on the issue of whether certain surgeries should to be authorized by OWCP as necessary 

and related to his accepted conditions. It referred appellant to Dr. Barakat for an impartial 

medical examination to resolve the conflict of opinion with respect to surgery. However, he was 

also asked to opine on other questions related to appellant’s condition, such as whether he 

continued to have work-related residuals of his condition. Dr. Barakat opined that appellant’s 

temporary work-related aggravation of degenerative spinal conditions had resolved and that his 

current medical conditions were related only to the preexisting degenerative conditions. He 

further opined that the accepted work-related injury of October 29, 2008 had resolved and 

appellant returned to a preinjury status. 

The Board finds that, under the circumstances of this case, the referee examiner was not 

acting as an impartial medical specialist on the issue of whether appellant’s conditions had 

resolved or returned to their preinjury status. The relevant conflict of medical opinion was 

limited to the issue of authorization of surgery for the accepted cervical and lumbar spine 

conditions. 

While the referee examiner’s report was not entitled to the special weight afforded to an 

opinion of an impartial medical specialist, his report can still be considered for its own intrinsic 

value10 and can still constitute the weight of the medical evidence. However, the Board finds 

that, due to the deficiency of the June 5, 2014 statement of accepted facts, Dr. Barakat’s opinion 

is of limited probative value. 

The Board has stated that 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, the probative value of the opinion is diminished or negated altogether.11 

 7 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

8 See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641 

(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical). 

9 Gloria J. Godfrey, 52 ECAB 486, 489 (2001). 

10 See Leanne E. Maynard, 43 ECAB 482 (1992) (finding that a physician’s opinion is probative even though he 

was not an impartial medical examiner and that the opinion of this physician and another physician were sufficient 

to establish causal relation); Rosa Whitfield Swain, 38 ECAB 368 (1987) (finding that a physician was improperly 

designated as an impartial medical specialist, but that his opinion nonetheless constituted the weight of the medical 

evidence). 

11 J.D., Docket No. 15-0305 (issued August 5, 2015). 
6

OWCP procedures also require that the statement of accepted facts include a specific description 

of the conditions accepted.12

Dr. Barakat relied upon a statement of accepted facts that did not provide any information 

regarding conditions already accepted by OWCP. To insure that the report of an OWCP referral 

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

physician through the preparation of a statement of accepted facts. The statement of accepted 

facts must include a description of the accepted conditions, or the opinion of the referral 

physician will be based upon an in incomplete framework and will be of limited probative 

value.13 On January 7, 2015 OWCP prepared an updated list of appellant’s accepted 

employment-related conditions, but this information was never provided to Dr. Barakat. As 

Dr. Barakat’s opinion was based upon an incomplete framework and was of diminished 

probative value. His report, therefore, is an insufficient basis upon which to prove justification 

to terminate compensation. The Board therefore finds that OWCP did not meet its burden of 

proof to terminate appellant’s wage-loss and medical benefits. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

compensation and medical benefits for his accepted injuries effective February 25, 2015. 

 12 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990). 

13 See J.D., supra note 11. 
7

ORDER 

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

Compensation Programs dated December 16, 2015 is reversed. 

Issued: July 21, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board