United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.R., Appellant 

and 

DEPARTMENT OF AGRICULTURE, 

AGRICULTURAL RESEARCH SERVICE, 

Fort Pierce, FL, Employer 

__________________________________________ 

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Docket No. 15-380 

Issued: April 10, 2015 

Appearances: Case Submitted on the Record

Martin Kaplan, Esq., for the appellant 

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 December 9, 2014 appellant, through counsel, filed a timely appeal from a 

November 5, 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 terminated compensation for wage-loss and 

medical benefits effective November 5, 2014. 

FACTUAL HISTORY 

On September 11, 2012 appellant, then a 53-year-old tractor operator, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained an injury in the performance of duty on 

 1

 5 U.S.C. § 8101 et seq. 
2

August 9, 2012. He stated on the claim form that he was sitting in a utility vehicle when he was 

rear-ended by another utility vehicle. Appellant described injuries to his neck and lower back. 

OWCP accepted the claim on October 5, 2012 for neck and lumbosacral sprain. The 

record contains a magnetic resonance imaging (MRI) scan report dated April 10, 2012 from 

Dr. Mark Timken, a radiologist, reporting an L4-5 broad-based left parasagittal disc herniation. 

In an MRI scan report dated September 17, 2012, Dr. Timken stated the L4-5 disc herniation 

appeared more prominent since the previous examination. As to a cervical MRI scan dated 

September 17, 2012, Dr. Timken noted disc bulges C2-5, with broad-based disc herniation at 

C5-6. In a report dated November 12, 2012, Dr. Jose Zuniga, a Board-certified neurologist, 

provided a history and results on examination. He diagnosed carpal tunnel syndrome, cervical 

disc disease, degeneration of lumbar intervertebral disc, and polyneuropathy in diabetes. 

On November 20, 2012 OWCP accepted intervertebral disc disorder with myelopathy. 

Appellant returned to work in a part-time light-duty position. By letter dated December 11, 

2013, the employing establishment indicated that the light-duty position was no longer available. 

Appellant began receiving wage-loss compensation for total disability on the periodic rolls. 

In a report dated January 2, 2014, Dr. Robert Reppy, an osteopath, provided a history of 

injury and results on examination. He diagnosed cervical and lumbar disc disorder. 

OWCP prepared a statement of accepted facts (SOAF) and referred appellant, along with 

medical records, to Dr. Jonathan Black, a Board-certified orthopedic surgeon, for a second 

opinion examination. In a report dated February 11, 2014, Dr. Black provided a history and 

results on examination. His report examination showed “no step-off or bruising” and alignment 

was normal. Dr. Black stated that appellant had sustained an aggravation of preexisting lumbar 

degenerative disease with L4-5 disc herniation, and cervical degenerative disc disease. He 

opined that these conditions were the result of the work-related injury. Dr. Black reported that 

appellant was completely neurologically intact on physical examination. He noted that appellant 

continued to complain of low back and neck pain, but appellant “does admit to the presence of 

these conditions prior to the accident, it is unclear whether or not they have returned to their 

baseline.” According to Dr. Black, appellant’s ongoing symptoms were “in line with the nature 

of degenerative conditions.” He reported that appellant’s subjective complaints were out of 

proportion with the clinical findings as related to the work injury. Dr. Black stated, “Although 

the MRI [scan] findings in the lumbar spine suggest worsening of the compression on the left L5 

nerve root compared with the prior study, that condition was present to a large extent in the prior 

study, and prior to the work-related injury and being treated with tramadol.” He concluded, “As 

the claimant is completely neurologically intact and the MRI [scan] findings do not appear to be 

markedly different from those of the preinjury MRI [scan] he is capable of performing the duties 

of a tractor operator as described in the [s]tatement of [a]ccepted [f]acts full duty.” 

On March 5, 2014 OWCP requested that Dr. Black provide a supplemental report 

clarifying his opinion. In a report dated April 1, 2014, Dr. Black stated that the lumbar and 

cervical sprains had resolved. He stated there was no evidence on examination of a continuing 

muscle sprain. Dr. Black opined that changes on the postinjury MRI scan were most likely due 

to age-related phenomena. Appellant had sustained a temporary aggravation of preexisting 

cervical and lumbar degenerative disease. Dr. Black stated that there was no objective evidence 
3

that the aggravation of preexisting lumbar degenerative disc herniation at L4-5 and cervical 

degenerative disease were “active in disabling.” He concluded that appellant was at baseline and 

residual symptoms were due to the natural progression of the underlying preexisting conditions. 

In a report dated April 23, 2014, Dr. Reppy indicated that appellant continued to have 

neck and low back pain. He provided results on examination and diagnosed L4-5 herniated disc, 

bilateral radiculopathy, lumbar disc syndrome, and cervical disc syndrome with radiculopathy. 

Dr. Reppy indicated that the neck and lumbar sprains had resolved. He stated that the “accepted 

diagnosis of lumbar disc disease” is correct. In addition, Dr. Reppy stated that OWCP was not 

taking into account appellant’s cervical diagnoses. He stated that a January 2, 2014 cervical 

MRI scan showed broad-based posterior disc bulge at C5-6 with osteophytes and spinal stenosis. 

Dr. Reppy further stated that the damage to appellant’s neck was consistent with being struck 

from behind at high speed by another vehicle. Appellant had stated that the impact snapped his 

neck backwards, and “any chiropractor will confirm that this is the most common etiology for 

cervical disc disease that there is. To not be included in the list of accepted conditions is doing 

this patient a disservice, as well as ignoring the medical evidence as presented.” 

By report dated July 8, 2014, Dr. Reppy diagnosed L4-5 herniated disc, bilateral 

radiculopathy, lumbar disc syndrome, cervical disc syndrome with radiculopathy, and 

hypertension. He stated, “the proper diagnoses are listed above, which are supported by medical 

evidence and physical fact. Also, it is my medical opinion with all reasonable certainty that 

these diagnoses were caused and aggravated by the accidents [appellant] sustained at work on 

[August 9, 2012].” On July 25, 2014 appellant submitted a duty status report (Form CA-17) 

from Dr. Reppy indicating that appellant remained totally disabled. 

In a letter dated August 28, 2014, OWCP advised appellant that it proposed to terminate 

compensation for wage-loss and medical benefits, based on the weight of the medical evidence. 

It advised him to submit evidence or argument within 30 days. 

On September 9, 2014 appellant submitted an August 29, 2014 report from Dr. Reppy 

providing results on examination. He also submitted a functional capacity evaluation from 

Dr. Reppy dated September 4, 2014. 

In a report dated September 16, 2014, Dr. Reppy indicated that he had reviewed 

Dr. Black’s report and discussed in detail his disagreement with Dr. Black’s conclusions. He 

stated that Dr. Black’s finding that the inspection of the cervical spine showed no “step-off” 

supported the diagnoses found on the cervical MRI scan, and cervical disc herniations would not 

change the cervical alignment. Dr. Reppy stated that Dr. Black did not explain his opinion as to 

conditions preexisting the work injury and he disagreed with Dr. Black that MRI scan findings 

were age related. He stated that disc herniations do not simply resolve on their own. Dr. Reppy 

discussed the mechanism of the work injury, stating that the force of the impact is transferred to 

the spinal column and exceeds the capacity of the connective tissue to withstand it. He opined 

that appellant’s work-related conditions had not ceased, and he would require surgery to repair 

the spinal herniated discs. Dr. Reppy reiterated that he stood by his statements regarding 

appellant’s inability to return to work. In a duty status report dated September 26, 2014, he 

indicated that appellant remained totally disabled. 
4

By decision dated November 5, 2014, OWCP terminated compensation for wage-loss and 

medical benefits. It found the weight of the evidence was represented by Dr. Black. As to 

Dr. Reppy’s September 16, 2014 report, OWCP stated that he did not mention accepted 

conditions and, as to a cervical injury, only a sprain had been accepted. 

LEGAL PRECEDENT 

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

of compensation. After it has been determined that an employee has disability causally related to 

his employment, OWCP may not terminate compensation without establishing that the disability 

had ceased or that it was no longer related to the employment.2 The right to medical benefits for 

an accepted condition is not limited to the period of entitlement to compensation for disability. 

To terminate authorization for medical treatment, OWCP must establish that appellant no longer 

has residuals of an employment-related condition which require further medical treatment.3

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.4 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 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.5

ANALYSIS 

In the present case, OWCP terminated compensation for wage-loss and medical benefits 

as of November 5, 2014. It found the weight of the evidence represented by Dr. Black, the 

second opinion physician. In his reports dated February 11 and April 1, 2014, Dr. Black 

indicated that the August 9, 2012 work injury had aggravated preexisting lumbar and cervical 

degenerative disc disease. He opined, however, that the aggravation was temporary and 

appellant’s current cervical and lumbar disc disease was not related to the employment injury. 

OWCP found that the reports of Dr. Black were sufficient to terminate compensation. 

However, appellant had submitted a detailed report dated September 16, 2014 from attending 

physician Dr. Reppy. He provided a reasoned medical opinion that disagreed with Dr. Black. 

Dr. Reppy found that appellant continued to have an employment-related cervical and lumbar 

disc disease that had not ceased and continued to cause disability. He discussed the work 

incident, the mechanism of injury, the medical record and provided a detailed explanation of his 

disagreement with Dr. Black’s findings. 

 2 Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503. 

3 Furman G. Peake, 41 ECAB 361 (1990). 

4

 5 U.S.C. § 8123. 

5

 20 C.F.R. § 10.321 (1999). 
5

In the November 5, 2014 decision, OWCP found that the weight of the medical evidence 

rested with Dr. Black. As to Dr. Reppy’s September 16, 2014 report, OWCP stated that he did 

not mention the accepted conditions and as to cervical disease only a cervical sprain had been 

accepted. Dr. Black had been asked to describe all employment-related conditions, and he had 

clearly found there was causal relationship between the cervical disc disease and the August 9, 

2012 employment injury. It is evident that Dr. Black and Dr. Reppy disagreed as to whether 

appellant continued to have an employment-related condition and disability. The Board also 

notes that OWCP had accepted lumbar intervertebral disc disorder, and the physicians disagreed 

as to whether appellant continued to have an employment-related lumbar condition. 

It is well established that the proper procedure when confronted with a disagreement 

between an attending physician and a second opinion physician, whose opinions are of virtually 

equal weight and rationale, is for OWCP to select a referee physician to resolve the conflict.6

 

OWCP should have properly resolved the conflict prior to termination of compensation. It is 

OWCP’s burden of proof to terminate compensation for wage-loss and medical benefits. When 

a medical conflict remains unresolved, OWCP has failed to meet its burden of proof to terminate 

compensation as of November 5, 2014.7

CONCLUSION 

The Board finds OWCP did not meet its burden of proof to terminate compensation for 

wage-loss and medical benefits effective November 5, 2014. 

 6

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

7 See S.J., Docket No. 14-1821 (issued January 23, 2015). 
6

ORDER 

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

Compensation Programs dated November 5, 2014 is reversed. 

Issued: April 10, 2015 

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