United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.M., Appellant 

and 

DEPARTMENT OF ENERGY, 

ALBUQUERQUE OPERATIONS OFFICE, 

Albuquerque, NM, Employer 

__________________________________________ 

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Docket No. 15-335 

Issued: May 15, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 24, 2014 appellant 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.2

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss 

and compensation benefits effective November 5, 2014 as he no longer had any residuals or 

disability causally related to his accepted employment injuries. 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the November 5, 2014 decision. Since 

the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the 

Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 

ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration. 
2

FACTUAL HISTORY 

This case was previously before the Board. In a decision dated July 12, 2000, the Board 

found that OWCP had not met its burden of proof to reduce appellant’s compensation based on 

his capacity to earn wages as a duplicating machine operator.3 The Board reversed OWCP’s 

June 18 and August 11, 1998 decisions. Following the Board’s decision, OWCP reinstated 

appellant on the periodic rolls for temporary total disability with a date-of-injury pay rate of 

$435.60 per week. The facts and circumstances of the Board’s July 12, 2000 decision are 

incorporated herein by reference. The relevant facts for this case are set forth below. 

OWCP accepted that on September 24, 1984 appellant, then a 44-year-old printer, 

sustained injuries to his back when a bolt on his chair broke and he fell down in the performance 

of duty. Appellant stopped work.4

 OWCP accepted his claim for sprain of the back, lumbar 

region and aggravation of degenerative disc disease of the lumbar region. It paid medical and 

wage-loss compensation benefits. 

By decision dated April 2, 2001, OWCP reduced appellant’s compensation benefits based 

upon his actual earnings of $320.00 per week effective January 25, 1999 in his new position of 

bindery technician. 

Pursuant to his requirement, under Form EN1032, to obtain annual medical reports, 

appellant sought medical treatment with Dr. Richard T. Radecki, Board-certified in physical 

medicine and rehabilitation. In his report dated January 24, 2002, Dr. Radecki related that 

appellant continued to have pain from his original injury, but he now had a secondary injury and 

additional pain.5 He stated that as appellant related that he had pain prior to the second injury, 

his federal work-related injury had not ceased and was now a chronic pain problem. Regarding 

appellant’s disability status, Dr. Radecki related that appellant had significant movement 

limitations due to chronic pain. Therefore, it was unlikely that appellant could return to the job 

he held when injured. Dr. Radecki opined that appellant could perform sedentary, modified 

work and did not recommend a functional capacity evaluation, physical therapy, or surgery. In a 

report dated January 30, 2003, Dr. Radecki related that an x-ray evaluation showed significant 

degenerative disc disease at L5-S1 with forminal stenosis. 

Appellant continued on partial disability. He was treated by Dr. Barry Hochstadt, Boardcertified in internal medicine. By report dated January 25, 2005, Dr. Hochstadt related that 

appellant had moderate pain, and limited range of motion on flexion. He diagnosed chronic pain 

syndrome, which would not improve over time. Dr. Hochstadt opined that appellant could only 

perform light duty. 

 3

 Docket No. 98-2582 (issued July 12, 2000). 

4

 On November 11, 1984 appellant was removed from his position due to a reduction in workforce. 

5

 In a letter dated August 2, 2002, OWCP informed appellant that his new injury which had been sustained on 

September 26, 2001, in private employment, was not compensable as it did not occur as a result of federal 

employment. Appellant continued to submit periodic medical reports to the record to support his continuing 

disability benefits. 
3

By letter dated February 17, 2009, OWCP advised appellant to submit an updated, 

current medical report from his treating physician. In a report dated February 11, 2009, 

Dr. David R. Sears, Board-certified in internal medicine, related that appellant’s current 

objective findings on examination were work related and included decreased range of motion on 

flexion and extension of both his lumbar and cervical spine. He opined that appellant had 

chronic pain syndrome and could not perform any work. 

Dr. Patricia Carabajal, Board-certified in family practice, related on February 22, 2011 

that on physical examination of appellant for the Department of Labor, he presented walking 

with a cane, and had decreased range of motion on flexion and extension of the back and neck. 

She opined that appellant had chronic neck and lower back pain, and was unable to work given 

his pain, as well as his limited range of motion and ability to walk. Dr. Carabajal recommended 

that appellant continue with analgesics as well as physical therapy. In a report dated 

February 14, 2014, she related that he had stable low back pain, hypertension, and insomnia. 

On June 12, 2014 OWCP referred appellant, along with a statement of accepted facts and 

the medical record, to Dr. Keith W. Harvie, a Board-certified orthopedic surgeon, for a second 

opinion examination to determine the extent of appellant’s continuing disability related to his 

accepted employment-related injuries. 

In his July 23, 2014 report, Dr. Harvie provided a history of appellant’s accepted back 

injuries and noted his review of the medical records and the medical treatment he received. He 

noted that a March 18, 1998 magnetic resonance imaging (MRI) scan of the lumbar spine 

revealed moderate stenosis at C5-6 with spondylolisthesis in his cervical spine, primarily C5-6 

and C4-5. Appellant had a history of diabetes and had previous gallbladder surgery. Dr. Harvie 

related appellant’s current complaints of low back pain at the lumbosacral junction and problems 

sleeping because of the pain in his lower back, neck, and right upper arm. He noted that 

appellant had problems with activities of daily living. Upon examination, Dr. Harvie observed 

that appellant was nontender in the cervical spine except at the lumbosacral junction, in the lower 

back. Range of motion of the lumbar region demonstrated 10 degrees extension, right lateral, 

and left lateral and 45 degrees right and left rotation. Cervical range of motion revealed 20 

degrees extension, 15 degrees right and left lateral, 40 degrees right rotation, and 45 degrees left 

rotation. Dr. Harvie stated that appellant was very stiff and did not try to move beyond the limits 

that he imposed. Straight leg raise testing was to 70 degrees bilaterally and negative in both the 

supine and sitting position for any pain within the legs. Dr. Harvie also reported negative 

femoral nerve stretch sign and positive Ely’s sign with pain at the lumbosacral junction. 

Dr. Harvie opined that appellant’s accepted lumbar conditions had resolved and that he 

no longer suffered any residuals of his employment-related lumbar strain and aggravation of 

degenerative disc disease. He noted that appellant had disc degeneration of the cervical and 

lumbar spine and no current MRI scan or x-ray findings. Dr. Harvie explained that there was no 

tenderness in the sacroiliac (SI) joint, sciatica notch, posterior thigh, or posterior calf. He stated 

that appellant demonstrated exaggerated behavior in his accepted work conditions and pointed 

out that appellant scored a 115 on the pain disability questionnaire (PDQ). Dr. Harvie reported 

that appellant had no limitations resulting from aggravation of degenerative disc disease and that 

any limitations were due to deconditioning and obesity. He stated that appellant was capable of 

sedentary work only because he was in poor physical function due to nonactivity. 
4

On September 17, 2014 OWCP proposed to terminate appellant’s compensation and 

medical benefits based on Dr. Harvie’s July 23, 2014 report which determined that appellant’s 

employment-related injuries had resolved and that he was capable of returning to modified duty. 

In a September 25, 2014 report, Dr. Ben Muneta, a family practitioner, stated that 

appellant had many severe medical conditions which could be exacerbated by performing even 

the most minimal physical exertions. He reported that appellant had severe low back pain with 

disc disease which limited his ability to do physical activities. Dr. Muneta noted that appellant 

also had diabetes, hypertension, and was prone to symptoms of hypoglycemia. He explained that 

because of appellant’s age and medical conditions he could not be considered to do tasks beyond 

the most minimal of physical exertions. 

By decision dated November 5, 2014, OWCP finalized the termination of appellant’s 

compensation and medical benefits effective November 5, 2014. It determined that the weight of 

the medical evidence rested with Dr. Harvie’s July 23, 2014 report which determined that 

appellant’s employment-related injuries had resolved and that he was capable of returning to 

sedentary duty. 

LEGAL PRECEDENT 

According to FECA, once OWCP accepts a claim and pays compensation, it has the 

burden of justifying termination or modification of an employee’s benefits.6 OWCP may not 

terminate compensation without establishing that the disability had ceased or that it was no 

longer related to the employment.7 Its burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.8 The 

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

disability compensation.9 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.10 

ANALYSIS 

OWCP accepted appellant’s claim for sprain of the back, lumbar region and aggravation 

of degenerative disc disease of the lumbar region. Appellant stopped work. OWCP paid 

disability and medical benefits for partial disability under a wage-earning capacity decision. By 

decision dated November 5, 2014, it terminated appellant’s compensation and medical benefits 

based on the July 23, 2014 second opinion report of Dr. Harvie which concluded that appellant’s 

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

7 Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 

ECAB 541 (1986). 

8 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

9 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued 

August 5, 2009). 

10 James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.
5

accepted conditions had resolved and that he was no longer disabled due to the accepted 

September 24, 1984 employment injury. The Board finds that OWCP met its burden of proof to 

terminate appellant’s compensation and medical benefits. 

OWCP referred appellant’s claim to Dr. Harvie for a second opinion examination to 

determine whether appellant continued to suffer residuals of his accepted injuries and the 

necessity of his medical treatment. In a July 23, 2014 report, Dr. Harvie reviewed appellant’s 

history of injury, medical treatment, and the statement of accepted facts concerning his back 

injuries. He reported essentially normal findings on physical examination and opined that 

appellant no longer had any residuals or disability due to his accepted September 24, 1984 

employment injury. Dr. Harvie noted that there was no tenderness in the SI joint, sciatica notch, 

posterior thigh, or posterior calf. He stated that appellant demonstrated exaggerated behavior in 

his accepted work conditions. Dr. Harvie reported that appellant had no limitations resulting 

from aggravation of degenerative disc disease and that any limitations were due to 

deconditioning and obesity. He stated that appellant was capable of sedentary work only 

because he was in poor physical function due to nonactivity. 

The Board has held that the weight of the medical opinion is determined by the 

opportunity for and thoroughness of examination, the accuracy and completeness of the 

physician’s knowledge of the facts of the case, the medical history provided, the care of analysis 

manifested and the medical rationale expressed in support of stated conclusions.11 In this case, 

Dr. Harvie discussed the history of injury and explained that there were no objective findings to 

establish that appellant had any continuing employment-related residuals or disability. The 

Board finds that his opinion is detailed, well rationalized, and based upon a complete and 

accurate history. Therefore, the Board finds that Dr. Harvie’s opinion represents the weight of 

the medical evidence and establishes that appellant no longer had any residuals or disability from 

his accepted back injuries. 

The Board further finds that the medical evidence appellant submitted is of limited 

probative value in disputing Dr. Harvie’s report. Prior to the termination of benefits appellant 

was seen by Drs. Radecki, Hochstadt, Sears and Carabajal who continued to diagnose chronic 

pain syndrome and opine that appellant was at least partially disabled. However, the Board notes 

that none of these physicians provided objective findings that appellant’s accepted conditions 

caused continuing residuals or disability. 

Following OWCP’s September 17, 2014 notice of proposed termination of benefits, 

appellant submitted a September 25, 2014 report by Dr. Muneta, who reported that appellant had 

severe low back pain with disc disease which limited his ability to do physical abilities. 

Dr. Muneta also noted that appellant also had diabetes, hypertension, and was prone to 

symptoms of hypoglycemia. He explained that because of appellant’s age and medical 

conditions appellant could not be considered to do tasks beyond the most minimal of physical 

exertions. Although Dr. Muneta attributed appellant’s inability to work to his low back pain and 

disc disease and noted that he suffers from diabetes, hypertension, and hypoglycemia. He failed 

to explain, based on medical rationale, how appellant was unable to work as a result of his 

 11 See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996). 
6

accepted lower back sprain and aggravation of disc disease. The Board has found that medical 

evidence which provides only a conclusion but does not offer any rationalized medical 

explanation is of limited probative value.12 

On appeal, appellant alleges that Dr. Harvie was very unprofessional and that he 

experienced a lot of pain during the second opinion examination. Despite his allegations, 

appellant has not provided any objective evidence to support that his pain is a result of his 

accepted conditions. 

Accordingly, OWCP has met its burden of proof to establish that appellant no longer 

continues to suffer residuals of his accepted September 24, 1984 back injury. There is no 

medical evidence contemporaneous with the termination of his benefits which supports that he 

has any continuing residuals related to his accepted lumbar conditions. Accordingly, the Board 

finds that OWCP properly terminated appellant’s rights to compensation and medical benefits. 

Appellant had received a loss of wage-earning capacity determination on April 2, 2001. 

The Board has held that once a loss of wage-earning capacity is determined, it remains in place 

unless modified.13 A modification of such a determination is not warranted unless there is a 

material change in the nature and extent of the employment-related condition, the employee has 

been retrained or otherwise vocationally rehabilitated or the original determination was in fact 

erroneous.

14 In certain situations, however, if the medical evidence is sufficient to meet 

OWCP’s burden of proof to terminate benefits, the same evidence may also negate a loss of 

wage-earning capacity such that a separate evaluation of the existing wage-earning capacity 

determination is unnecessary.15 OWCP’s burden to demonstrate no further disability is 

effectively the same, irrespective of whether there is an existing determination in place finding 

loss of earning capacity. Case law may suggest that a threshold evaluation of the wage-earning 

capacity needs to be performed before there is a termination of benefits. The Board finds, 

however, that the burden is often substantially the same, the evidence is the same and the process 

of terminating benefits need only be done once. While a claimant may still have unrelated 

medical conditions or impairments, the medical evidence must establish that the employmentrelated disability and medical conditions no longer exist. 

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. 

 12 J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006). See T.C., Docket No. 12-

444 (issued August 1, 2012); see also B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 

ECAB 486 (2001). 

13 A wage-earning capacity determination remains in effect until it is properly modified. See Katherine T. 

Kreger, 55 ECAB 633 (2004); see P.Y., Docket No. 09-2293 (issued September 1, 2010) and A.P., Docket No. 08-

1822 (issued August 5, 2009). 

14 George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984). 

15 A.P., supra note 13. 
7

CONCLUSION 

The Board finds that OWCP met its burden of proof to justify termination of appellant’s 

medical benefits effective November 5, 2014. 

ORDER 

IT IS HEREBY ORDERED THAT the November 5, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 15, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board