United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.C., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Bensalem, PA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0903 

Issued: August 13, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 March 24, 2015 appellant, through counsel, filed a timely appeal from a 

November 17, 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. 

ISSUES 

The issues are: (1) whether it met its burden of proof to terminate appellant’s 

compensation benefits effective April 6, 2014 as the accepted conditions had resolved with no 

residuals; and (2) whether appellant met her burden of proof to establish continued disability 

after April 6, 2014. 

 1

 5 U.S.C. §§ 8101-8193. 
2

On appeal counsel asserts that the impartial medical examiner was not properly selected 

and that his opinion is not sufficiently rationalized to meet OWCP’s burden to terminate 

appellant’s compensation benefits. 

FACTUAL HISTORY 

On August 3, 1994 appellant, then a 41-year-old correspondence examination technician, 

filed a traumatic injury claim alleging that she injured her right knee when she tripped over a 

trash can at work that day. At the time of the injury, she was working three days a week due to a 

nonoccupational motor vehicle accident. Appellant stopped work on the date of injury and did 

not return. OWCP accepted that she sustained a right knee strain, and she was placed on the 

periodic compensation rolls. The claim was expanded to include reflex sympathetic dystrophy 

(RSD) of the right knee.2

 

Appellant began treatment with Dr. Robert Knobler, a Board-certified neurologist, on 

March 14, 1996, who diagnosed RSD of both legs and recommended medication and physical 

therapy. Dr. Knobler advised that her condition was guarded. Appellant submitted numerous 

reports of him describing her care up to August 1, 2007. 

OWCP continued to develop the claim, and in September 2011 referred appellant to 

Dr. Raoul Biniaurishvili, a Board-certified neurologist, for a second opinion evaluation. In an 

October 5, 2011 report, Dr. Biniaurishvili reported physical examination findings, diagnosed 

right knee regional pain syndrome, anxiety disorder, and depression, and recommended 

additional studies. In an attached work capacity evaluation, he found that appellant could work 

eight hours a day with physical restrictions. A November 8, 2011 x-ray of the right knee 

demonstrated mild degenerative joint disease. A right knee magnetic resonance imaging (MRI) 

scan study that day demonstrated marked degenerative changes and chondromalacia patella and a 

possible acute process at the ventral aspect of the tibia. On December 22, 2011 

Dr. Biniaurishvili reported the study findings and recommended additional study regarding the 

tibial findings. 

 In a January 10, 2013 report, Dr. Shailen Jalali, an attending physician who is Boardcertified in anesthesiology and pain medicine, noted appellant’s complaint of wide-spread body 

pain. He described the history of injury and provided examination findings. Dr. Jalali diagnosed 

complex regional pain syndrome (CRPS), most prominent in the lower extremities, complicated 

by a history of seizure disorder, hypothyroidism, and cervical spine pathology that required 

surgery. 

In April 2013, OWCP again referred appellant to Dr. Biniaurishvili. In an April 1, 2013 

report, Dr. Biniaurishvili additionally diagnosed right knee arthritis, cervical, and lumbar spine 

degenerative disease and pain, rule-out discogenic lumbar spine disease, psychophysiological 

insomnia, organic brain syndrome, and possible fibromyalgia. He recommended additional 

studies and advised that appellant had physical limitations related to CRPS. An April 10, 2013 

electromyographic study of the lower extremities demonstrated findings consistent with mild 

symmetrical distal polyneuropathy. In a work capacity evaluation dated April 17, 2013, 

 2

 RSD is now known as complex regional pain syndrome (CRPS). 
3

Dr. Biniaurishvili provided physical restrictions and advised that appellant could work four hours 

of restricted-duty daily. On April 25, 2013 he advised that she was capable of performing the 

duties of correspondence examination technician for four hours daily. 

Dr. Jalali and his associates provided treatment notes dated February 7 to May 22, 2013 

in which they described appellant’s condition and treatment.3

 In correspondence dated May 31, 

2013, he advised that he began treating appellant on January 10, 2013. Dr. Jalali noted his 

review of Dr. Biniaurishvili’s report and disagreed with his conclusion that appellant could 

return to part-time work, advising that she was not capable of gainful employment due to a 

significant pain level and difficulty in concentration. He and his associates continued to submit 

treatment notes describing appellant’s condition. 

 OWCP determined that a conflict in medical evidence had been created between the 

opinions of Dr. Jalali and Dr. Biniaurishvili regarding appellant’s work capabilities, and referred 

her to Dr. Richard I. Katz, a Board-certified neurologist, for an impartial medical evaluation. 

 The record contains an OWCP ME023, appointment schedule notification that indicates 

that an appointment was made with Dr. Katz after 21 bypasses were made. It also includes an 

impartial request form, a referral sheet dated September 26, 2013, and a handwritten request 

form. 

In a December 2, 2013 report, Dr. Katz noted appellant’s complaints and his review of 

the record. He described physical examination findings, advising that she had no objective 

reproducible neurologic or neurovascular abnormality and had no restrictions related to the 

August 3, 1994 employment injury. In a work capacity evaluation dated December 2, 2013, 

Dr. Katz advised that appellant could return to her usual job without restrictions. 

On January 16, 2014 OWCP found that the weight of the medical evidence rested with 

the opinion of Dr. Katz and proposed to terminate appellant’s compensation benefits because the 

medical evidence established that she no longer had residuals or disability due to the 

employment injury. 

Dr. Jalali submitted a work capacity evaluation dated February 18, 2014 in which he 

advised that appellant could work for four hours a day with restrictions to her physical capacity. 

By decision dated March 27, 2014, OWCP finalized the termination of appellant’s 

wage-loss and medical benefits, effective April 6, 2014, finding that she had no residuals of the 

accepted conditions. It found that the weight of the evidence rested with the opinion of Dr. Katz 

who performed an impartial medical evaluation. 

Appellant timely requested a hearing. She submitted medical evidence previously of 

record and treatment notes dated April 15 and May 13, 2014 in which Dr. Purewal and Dr. Jalali 

provided physical examination findings, described appellant’s medications, and diagnosed CRPS 

 3

 Dr. Jalali’s associates were Dr. John Park, Dr. Miteswar Purewal, and Dr. Rishin Patel, all Board-certified in 

anesthesiology and pain medicine. A treatment note dated March 17, 2014 was completed by Theresa DiJoseph, a 

physician assistant. 
4

affecting the lower and upper extremities and trunk with associated neuropathic pain.4

 In 

August 23, 2014 correspondence, Dr. Jalali described appellant’s treatment since 

January 20, 2013. He reviewed Dr. Biniaurishvili’s April 1, 2013 report and Dr. Katz’s 

December 2, 2013 report and disagreed with their conclusions. Dr. Jalali opined that appellant 

suffered from CRPS and had significant functional loss as a result of the pain condition and this 

was caused by the August 3, 1994 employment injury. He concluded that she could not return to 

any type employment. 

 On October 3, 2014 counsel forwarded a June 2, 1995 report from Dr. Ronald M. 

Fairman, previously of record, and copies of Social Security Administration disability 

regulations regarding RSD/CRPS. 

 At the hearing, held on October 6, 2014, counsel noted that the record did not provide 

sufficient evidence to indicate that Dr. Katz was properly selected as the referee physician, 

noting that the record contained no required screen shots. Appellant testified that in 1981 she 

injured her right knee when she fell at a hotel, and that on May 23, 1992 she was struck by a 

truck, hit her head, and suffered a frontal lobe injury. She stated that she did not return to work 

until early 1994 and at the time of the August 3, 1994 injury, she was working eight hours a day, 

three days a week. Appellant described her job duties and her medical condition and treatment 

since the 1994 injury. She testified that she did not have the physical or mental ability to 

perform an offered position. Counsel asserted that the claim should be expanded to include 

RSD/CRPS of all extremities, a herniated lumbar disc, depression, and anxiety. 

Following the hearing, counsel submitted a pleading, maintaining that the termination 

should be reversed because Dr. Katz was not properly selected and because appellant continued 

to suffer residuals of the accepted conditions. He further maintained that the accepted conditions 

should be expanded to include a lumbar herniated disc, depression, anxiety, and the spread of 

CRPS to all extremities. 

In a statement dated November 4, 2014, appellant described her medical condition and 

asserted that the examination by Dr. Katz was brief and incomplete. She further indicated that 

she did not receive the proposed termination notice. 

By decision dated November 17, 2014, OWCP’s hearing representative affirmed the 

March 27, 2014 decision. He found that OWCP followed proper procedures in referring 

appellant to Dr. Katz and found the weight of the medical opinion rested with Dr. Katz who 

opined that appellant had no work-related residuals.5

 

 4

 Appellant also submitted additional treatment notes from physician assistants. 

5

 The hearing representative also noted that, as Dr. Biniaurishvili opined that right lower extremity CRPS 

aggravated anxiety and depression, the claim should be expanded to include these conditions as consequential to the 

accepted injury. Dr. Biniaurishvili concluded, however, that since the record established that the 

employment-related CRPS had resolved, it followed that the aggravating effects of the condition had also ceased. 
5

LEGAL PRECEDENT -- ISSUE 1 

Section 8123(a) provides that, 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. 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 the 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.6 

A physician selected by OWCP to serve as an impartial medical specialist should be one 

wholly free to make a completely independent evaluation and judgment. In order to achieve this, 

OWCP has developed specific procedures for the selection of the impartial medical specialist 

designed to provide adequate safeguards against any possible appearance that the selected 

physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial 

medical specialist will be selected on a strict rotating basis in order to negate any appearance that 

preferential treatment exists between a particular physician and OWCP.7 

The Medical Management Application (MMA), which replaced the Physician’s Directory 

Service, allows users to access a database of Board-certified specialist physicians and is used to 

schedule referee examination. The application contains an automatic and strict rotational 

scheduling feature to provide for consistent rotation among physicians and to record the 

information needed to document the selection of the physician. If an appointment cannot be 

scheduled in a timely manner or cannot be scheduled for some other reason such as a conflict or 

the physician is of the wrong specialty, the scheduler will update the application with an 

appropriate bypass code. Upon the entering of a bypass code, the MMA will select the next 

physician in the rotation.8

 

Section 3.500.i of OWCP procedure manual provides that, as of December 17, 2012, the 

ME023 report must contain the following information: 

(1) For the physician selected, the following information will be available on 

page 1 of the report: the claimant’s name, case number, and home zip code; the 

name, address, phone number, and specialty of the physician selected for the 

appointment; the date, time, and type of appointment; and the user ID of the 

individual who generated the report. 

If physicians were bypassed prior to the selection of this physician, the selected 

physician’s information will also be listed at the end of the report in a section that 

denotes the physician that was selected for the appointment. The date on which 

 6

 20 C.F.R. § 10.321. 

7

 Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.5 

(May 2013). 

8 Id. at 3.500.5.b-e. 
6

the appointment was scheduled will also be listed here. (This is not the same as 

the date of the actual appointment.) 

(2) For each physician bypassed, the report will show the following information 

on subsequent pages of the report: 

(a) The name, specialty, state, and zip code based upon the information in 

the Medical Management application. 

(b) A distance based on the approximate number of miles between the 

claimant’s home zip code and that physician’s zip code. See 5e(4) for 

more detail on the calculation of the distance. 

(c) The date on which the last appointment was scheduled with that 

physician based upon the information in the Medical Management 

application. (This is not the same as the date of the actual appointment.) 

If there is no record of any previously scheduled appointment, the report 

will list “none.” 

(d) The date and time the physician was bypassed, along with the bypass 

code (and bypass note, if any). See paragraph 6 of this chapter for a more 

detailed discussion of bypass codes. 

(3) Every page of the ME023 report (other than the first page) has a certification 

statement on the bottom verifying that the report is evidence that the appointment 

was scheduled using the Medical Management application in iFECS. 

(4) The ME023 report is separated into sections based on the various search 

ranges (Initial Zip Cluster Match, 50-Mile Range Outside of Zip Cluster, 75-Mile 

Range Outside of Zip Cluster, etc.). If no physicians were found within a 

particular range, the report shows this result.9

ANALYSIS -- ISSUE 1 

The Board finds that OWCP failed to properly establish that Dr. Katz was properly 

selected as the impartial medical specialist. 

It is well established that OWCP has an obligation to verify that it selected Dr. Katz in a 

fair and unbiased manner. It maintains records for this very purpose. The current record 

contains one page of the Form ME023 listing Dr. Katz as the selected physician and that there 

had been 21 bypasses before OWCP was able to schedule an appointment with a neurologist. 

The ME023 report contains no further information or documentation, such as screen shots or a 

bypass log, regarding the 21 bypasses. The record is therefore insufficient for the Board to 

verify that Dr. Katz was properly selected. 

 9 Id. at 3.500.5.i. 
7

The Board has placed great importance on the appearance as well as the fact of 

impartiality, and only if the selected procedures, which were designed to achieve this result, are 

scrupulously followed may the selected physician carry the special weight accorded to an 

impartial medical specialist.10 Consequently, the Board finds that Dr. Katz cannot be considered 

the impartial medical specialist as OWCP has not met its obligation to establish that he was 

properly selected. As the November 17, 2014 decision, that affirmed the termination effective 

April 6, 2014, found the weight of the evidence rested with Dr. Katz, it must be reversed. 

In light of the Board’s finding regarding Issue 1, Issue 2 is rendered moot. 

CONCLUSION 

The Board finds that, as OWCP did not properly select Dr. Katz as the referee physician, 

the November 17, 2014 decision must be reversed. 

ORDER 

IT IS HEREBY ORDERED THAT the November 17, 2014 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: August 13, 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 

 10 See J.W., Docket No. 12-331 (issued January 14, 2013).