United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

WURTSMITH AIR FORCE BASE, MI, 

Employer 

__________________________________________ 

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Docket No. 15-119 

Issued: March 10, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 20, 2014 appellant filed a timely appeal from a May 2, 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 met its burden of proof to terminate appellant’s medical and 

wage-loss benefits effective August 8, 2013. 

FACTUAL HISTORY 

On January 21, 1969 appellant, then a 30-year-old mess attendant, filed a traumatic injury 

claim alleging that she injured her back and hip on that date. She alleged that she slipped on a 

 1

 5 U.S.C. § 8101 et seq. 
2

greasy wet floor while carrying trays. Appellant’s claim was accepted for acute lumbosacral 

muscle strain. Later, her claim was expanded to include acute lumbosacral strain superimposed 

on preexisting spondylosis and a bulging disc at L4. Appellant stopped work on 

January 22, 1969. She returned to intermittent work until March 12, 1969 when she stopped all 

work at the employing establishment. Appellant received appropriate wage-loss compensation 

after her work stoppage. 

On September 2, 2011 OWCP requested that appellant provide a medical report 

addressing her current status whether her accepted conditions remained present and active. In a 

September 29, 2011 report, Ann Thibodeau-Ashford, a physician assistant, advised that appellant 

continued to experience chronic back pain.2

 She noted that the pain began 30 years ago when 

appellant slipped and fell while working at the employing establishment. Ms. ThibodeauAshford further noted that appellant had difficulty getting up and down from the examination 

table and had tenderness with palpitation of the lumbar spine at L2-L5. She advised that 

appellant had nonwork-related conditions including hypertension, hyperlipidemia, asthma, 

obesity, chronic kidney disease, and depression. Ms. Thibodeau-Ashford opined that appellant 

remained totally disabled due to her back pain and recommended weight loss and physical 

therapy. 

On July 3, 2012 OWCP referred appellant, together with the medical record, and a 

statement of accepted facts to Dr. Earl Rhind, a Board-certified orthopedic surgeon, for a second 

opinion regarding appellant’s status and whether she had residuals of her accepted conditions. In 

an August 8, 2012 report, Dr. Rhind noted that appellant was injured when she slipped on a 

greasy wet floor while carrying trays that weighed approximately 30 pounds. He advised that 

appellant worked part time in 1977 as a bookkeeper and as a telemarketer in 1984, but was 

unable to continue those jobs because she could not sit for an extended period of time. Dr. Rhind 

noted that appellant had a very restricted activity level and low back pain that radiated to her 

right buttock area with prolonged standing, walking, bending, twisting, or lifting. On physical 

examination, he advised that appellant did not exhibit any overt pain behaviors and walked 

slowly with a fairly balanced gait pattern. Dr. Rhind noted that her cervical spine had functional 

range of motion with no painful or tender areas and her lumbar spine was rather straight. 

Appellant had very limited mobility of the lumbosacral spine. Straight leg raises as well as 

sensory and motor examination of the legs were unremarkable. Dr. Rhind opined that, as a result 

of chronic pain and age, there was a far advanced and rather hopeless level of deconditioning 

which would limit an individual of appellant’s age from doing work activity on a consistent 

regular basis. He noted that appellant’s condition was stable and had reached maximum medical 

improvement. 

By letter dated October 2, 2012, OWCP advised Dr. Rhind that his report did not 

sufficiently address the questions as posed to him. It requested that he submit an addendum 

report addressing whether there remained residuals of lumbosacral strain superimposed on 

preexisting spondylosis and a bulging disc at L4 as causally related to the January 21, 1969 

work-related incident remained. Dr. Rhind was also asked whether appellant had any current 

 2

 The record indicates that Ms. Thibodeau-Ashford works with Dr. Thomas Marshall, Board-certified in family 

medicine. 
3

conditions that were caused, aggravated, or accelerated by the January 21, 1969 work incident. 

A February 21, 2013 e-mail from OWCP’s medical scheduler advised that Dr. Rhind refused to 

submit an addendum report. 

On February 28, 2013 OWCP referred appellant, together with the medical record, and a 

statement of accepted facts, to Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon, 

for a second opinion regarding appellant’s work-related conditions. In an April 5, 2013 report, 

Dr. Obianwu advised that appellant was initially injured when she slipped on a greasy wet floor 

while working at the employing establishment. He noted that appellant had ongoing back pain, 

difficultly standing and sitting for any length of time, and that she could only walk short 

distances. Dr. Obianwu reviewed the medical record and noted that initially many of appellant’s 

physicians attributed her back pain to aggravation of grade 1 spondylolisthesis at L5-S1, finding 

it to be congenital or developmental, with secondary chronic lumbosacral strain irritation. He 

reported examination findings, noting that appellant had difficulty walking on her toes and heels. 

Appellant was tender in the midline of the lumbar spine. There was no atrophy in the muscle 

groups of the legs. Straight leg raising on the right side caused significant low back pain. 

Lumbar spine x-ray showed grade 1 spondylolisthesis at L5-S1 with almost complete obliteration 

of the disc space, as well as degenerative changes in the entire lumbar spine. Dr. Obianwu 

diagnosed severe chronic lumbar spondylosis, multilevel degenerative disc disease, and 

developmental spondylosis at L5 with grade 1 spondylolisthesis at L5 on S1. He opined that the 

accepted lumbosacral sprain had resolved, finding that there was no swelling in her lumbar spine 

or tightness of the muscles of the lumbar spine. Dr. Obianwu also noted that imaging studies did 

not reveal any bulging at the L4 disc. He stated that there were no residuals specifically 

attributable to the accepted conditions and work incident. Dr. Obianwu further opined that the 

basis for appellant’s lower back pain was the developmental condition of bilateral spondylosis of 

L5 and the grade 1 spondylolisthesis of L5 on S1, which was not an accepted condition. He 

stated that appellant’s present disability was nonwork related and developmental, noting that 

many of appellant’s previous physicians also described her condition as congenital. 

Dr. Obianwu opined that appellant was unable to perform duties of her date-of-injury job 

because of concurrent conditions not attributable to her work injury. He opined that was not 

currently disabled from all work and that she could return to limited duties. 

In an April 30, 2013 letter, OWCP notified Dr. Marshall, appellant’s primary care 

physician of record, that a second opinion physician found that appellant no longer had the 

residuals of the accepted conditions. It sent him a copy of Dr. Obianwu’s report and a statement 

of accepted facts and requested that he submit comments within 30 days. 

By letter dated July 8, 2013, OWCP advised appellant that it proposed a termination of 

compensation and medical benefits. It advised that the weight of the evidence was represented 

by Dr. Obianwu who found that there were no residuals of her accepted condition causally 

related to the January 21, 1969 work injury. Appellant was further advised that she had 30 days 

to submit additional evidence and argument to contest the proposed termination. She 

subsequently notified OWCP that she had a scheduled appointment with a spine specialist on the 

first open date of July 10, 2013. 
4

By decision dated August 8, 2013, OWCP terminated appellant’s wage-loss and medical 

benefits effective August 8, 2013. It found that the weight of medical opinion was represented 

by Dr. Obianwu. 

On August 12, 2013 appellant’s attorney requested a telephone hearing. At the 

February 13, 2014 hearing, he contended that OWCP was doctor shopping and that there was no 

need for a second opinion examination by Dr. Obianwu because there was no conflict in the 

record. Appellant’s attorney also accused Dr. Obianwu of being anti-claimant and accused 

OWCP of terminating appellant’s benefits because she had received compensation for such a 

long period of time. 

On August 27, 2013 OWCP received the July 10, 2013 report from appellant’s scheduled 

appointment with Dr. Boyd Richards, Board-certified in neurological surgery, who advised that 

appellant twisted her back while working at the employing establishment and noted that she was 

asymptomatic prior to the work incident. Dr. Richards advised that July 10, 2013 lumbar spine 

x-rays revealed spondylosis on L4-S1, grade 1 spondylolisthesis of L4 on L5 and L5 on S1. 

Appellant also submitted a March 6, 2014 report from Dr. Sean Coyle, an internist, who advised 

that appellant complained of back pain related to a 1969 work injury. Dr. Richards stated that he 

reviewed appellant’s medical records and imaging reports. He noted that she had significant 

lumbar arthritis and multilevel disc disease. On physical examination Dr. Richards found 

osteoarthritis and leg weakness. He opined that appellant was incapable of obtaining or 

maintaining meaningful employment due to extensive arthritis and instability. 

By decision dated May 2, 2014, an OWCP hearing representative found that OWCP met 

its burden of proof in establishing that appellant no longer had the disabling residuals of the 

accepted conditions. 

LEGAL PRECEDENT 

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

modification or termination of an employee’s benefits. After it has determined that an employee 

has disability causally related to his or her federal employment, it may not terminate 

compensation without establishing that the disability ceased or that it was no longer related to the 

employment.3

 OWCP’s burden of proof in terminating compensation includes the necessity of 

furnishing rationalized medical opinion evidence based on a proper factual and medical 

background.4

 

In assessing medical evidence, the number of physicians supporting one position or 

another is not controlling; the weight of such evidence is determined by its reliability, its 

probative value, and its convincing quality.5

 The factors that comprise the evaluation of medical 

opinion evidence include the opportunity for and thoroughness of examination, the accuracy or 

 3 Jaja K. Asaramo, 55 ECAB 200 (2004). 

4 Id. 

5 See Nicolette R. Kelstrom, 54 ECAB 570 (2003). 
5

completeness of the physician’s knowledge of the facts and medical history, the care of analysis 

manifested, and the medical rationale expressed in support of the physician’s conclusions. 

Medical opinion regarding causal relationship must be based on a complete factual history and 

medical background, one of reasonable medical certainty, and supported by rationale explaining 

the nature of the relationship between the diagnosed condition and employment factors.6

 

ANALYSIS 

OWCP accepted appellant’s traumatic injury claim for acute lumbosacral strain 

superimposed on preexisting spondylosis and bulging disc at L4. Appellant received wage-loss 

compensation and medical benefits based on the accepted conditions since 1969. In 2013 

OWCP referred appellant to Dr. Obianwu for a second opinion regarding the status of appellant’s 

accepted conditions.7

In his April 5, 2013 report, Dr. Obianwu set forth the history of appellant’s accepted back 

condition and reviewed the medical treatment records related to appellant’s conditions, as well as 

the statement of accepted facts. He diagnosed spondylolisthesis at L5-S1, degenerative changes 

of the lumbar spine, and developmental bilateral spondylosis at L5. Dr. Obianwu opined that the 

accepted work condition of lumbosacral sprain and bulging L4 disc had resolved, finding that 

there was no swelling in her lumbar spine or any tightness of the muscles of the lumbar spine and 

that imaging studies did not reveal any bulging at the L4 disc. He stated that there were no 

residuals specifically attributable to the accepted conditions or the January 21, 1969 work 

incident. Dr. Obianwu explained that the basis for appellant’s lower back pain was the 

developmental condition of bilateral spondylosis of L5 and the grade 1 spondylosis of L5 on S1 

which was not employment related. He stated that appellant’s present disability was nonwork 

related and developmental, noting that a review of the medical record supported that the 

condition was congenital. Dr. Obianwu opined that, although appellant could not perform her 

date-of-injury duties, this was due to conditions not attributable to her work injury. 

Appellant subsequently submitted a March 6, 2014 report from Dr. Coyle who diagnosed 

significant lumbar arthritis and multilevel disc disease. Dr. Coyle opined that appellant was 

incapable of obtaining or maintaining meaningful employment due to extensive arthritis and 

instability. This report is insufficient to create a conflict with or to overcome the weight of 

Dr. Obianwu’s report because it does not specifically address whether residuals of appellant’s 

accepted conditions remain. Dr. Richard’s July 10, 2013 report is also insufficient to overcome 

the weight of Dr. Obianwu’s report because it also does not offer a clear opinion regarding 

whether appellant remained disabled from work due to residuals of the 1969 work injury. 

 6 See M.D., 59 ECAB 211 (2007). 

7

 OWCP previously referred appellant to Dr. Rhind for a second opinion. Although Dr. Rhind provided an 

August 8, 2012 report which generally supported continuing work-related disability, OWCP requested a 

supplemental opinion as he did not sufficiently explain how continuing disabling residuals were attributable to the 

January 21, 1969 work injury. As noted, infra, he did not provide a supplemental report. As such it was proper for 

OWCP to refer appellant to Dr. Obianwu to further develop the medical record. See William B. Webb, 56 ECAB 

156 (2004) (OWCP has the discretion to have a claimant submit to an examination by a physician designated or 

approved by OWCP after the injury and as frequently and at the times and places as may be reasonably required). 
6

The Board finds that the weight of medical opinion is represented by the reports of 

Dr. Obianwu whose reports were based on a full and accurate history, a review of the medical 

records, and provided a rationalized medical opinion addressing the basis for his conclusion that 

appellant’s ongoing disability was no longer related to appellant’s accepted conditions. In 

contrast, the reports by Drs. Coyle and Richards do not specifically address whether the residuals 

of the accepted conditions remain as causally related to the January 21, 1969 work incident. 

Although counsel asserted at appellant’s hearing that Dr. Obianwu was biased, the Board has 

held that mere allegations are not sufficient to establish bias. There must be evidence of actual 

bias or unfairness by the physician used by OWCP as a referral physician.8

 Here, counsel did 

not provide evidence showing that Dr. Obianwu acted in a biased manner toward appellant. 

CONCLUSION 

The Board finds that OWCP met its burden of proof to terminate appellant’s medical and 

wage-loss benefits. 

ORDER 

IT IS HEREBY ORDERED THAT the May 2, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: March 10, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 J.C., Docket No. 08-1833 (issued March 23, 2009).