United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.T., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, New York, NY, Employer 

__________________________________________ 

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Docket No. 15-438 

Issued: March 28, 2016 

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 17, 2014 appellant, through her attorney, filed a timely appeal from a 

September 16, 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 appellant’s wage-loss compensation 

effective September 21, 2014 on the grounds that she no longer had any disability causally 

related to her accepted employment-related injuries. 

On appeal counsel contends that the medical report of an OWCP referral physician is not 

entitled to the weight of the medical opinion evidence, as it is speculative and fails to provide a 

rationalized opinion explaining how the accepted employment-related degeneration of the 

lumbar intervertebral disc has resolved. He contends that the referral physician failed to 

demonstrate his knowledge of the physical requirements of appellant’s job or her residual 

 

 1 5 U.S.C. § 8101 et seq.
2

physical capacity as he only reviewed the duties of the position without discussion and reviewed 

prior diagnostic test results without citing to recent diagnostic test results in support of his 

opinion that there are no objective findings of a residual disabling condition. Counsel also failed 

to discuss whether appellant’s limitations related to her consequential right knee condition allow 

her to resume her date-of-injury position or any other suitable position. 

FACTUAL HISTORY 

This case has previously been before the Board. In an October 14, 2009 decision, the 

Board found that OWCP properly suspended appellant’s compensation effective November 23, 

2008 for failing to submit a Form EN1032, as requested.2

 In an April 3, 2014 decision, the 

Board reversed OWCP’s termination of her compensation based on its finding that she had no 

further employment-related residuals or disability.3

 The facts of the case as set forth in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below. 

OWCP accepted that on March 30, 1981 appellant, then a 26-year-old deputy marshal, 

sustained employment-related low back derangement and degeneration of the lumbar or 

lumbosacral intervertebral disc when she slipped while exiting a vehicle. Appellant stopped 

work on the date of injury and has not returned to work. OWCP paid compensation for total 

disability. 

In a February 18, 2013 progress note, Dr. G. Clay Baynham, an attending Board-certified 

orthopedic surgeon, provided a history of the March 30, 1981 employment injuries and 

appellant’s medical treatment, social, and family background. He noted her complaints of back 

pain and bilateral leg, right groin, and left foot pain and numbness. Dr. Baynham provided 

findings on physical examination and magnetic resonance imaging scan test results. He also 

provided an impression of back and bilateral left greater than right lower extremity radicular 

pain, numbness, and paresthesias. Dr. Baynham advised that on physical examination appellant 

had no focal neurological deficit. Appellant’s complaints appeared to be generally consistent 

with a femoral radiculopathy. Radiographically, her complaints appeared to correlate well with 

lateral recess stenosis bilaterally at L3-4. Dr. Baynham concluded that appellant’s complaints of 

groin pain on the left appeared to correlate well with a focal left lateral herniation at L2-3 and 

addressed her treatment plan. 

By letter dated April 15, 2014, OWCP referred appellant, together with a statement of 

accepted facts and the medical record, to Dr. Peter J. Millheiser, a Board-certified orthopedic 

surgeon, for a second opinion. In a May 15, 2014 report, Dr. Millheiser reviewed a history of the 

March 30, 1981 employment injuries and appellant’s medical record. He noted her complaint of 

constant and sharp back pain that radiated to her pelvis in both legs more on the left than on the 

right. The back pain increased with bending, lifting, twisting, walking, sitting, standing, and 

sleeping, but not with coughing, sneezing, or bowel movements. The pain went down to both 

feet, more on the left than on the right, and there was numbness in both feet. On examination of 

the lumbar spine, he reported mildly restricted range of motion. There was no tenderness, trigger 

 2

 Docket No. 09-675 (issued October 14, 2009). 

3

 Docket No. 14-75 (issued April 3, 2014). 
3

points, spasm, list, tilt, or sciatic scoliosis. A motor and sensory examination of the lower 

extremities was normal. Knee and ankle reflexes were equal and active bilaterally. A straight 

leg raising test was negative. Sitting caused back pain at 80 degrees on the right. Over 

exaggeration tests were negative. The right calf measured .25 inch more than the left calf. 

Dr. Millheiser reported that appellant was not using orthosis and she had normal ability to get on 

and off an examination table. Appellant had normal gait and station. Dr. Millheiser diagnosed 

postlumbar radiculopathy, postlumbar sprain, and degenerative disease of the lumbar spine. He 

reviewed the duties of a federal marshal. Dr. Millheiser found no significant objective findings 

in the lumbar spine. He advised that there were no objective findings to support residuals or 

disability from the compensable medical conditions as indicated in the statement of accepted 

facts. Dr. Millheiser concluded that appellant could perform the physical requirements of her 

deputy marshal job as listed in the statement of accepted facts without restrictions and on a fulltime basis. 

On June 30, 2014 OWCP issued a notice of proposed termination of appellant’s wageloss compensation based on Dr. Millheiser’s medical opinion. Appellant was advised that she 

had 30 days to submit additional evidence in response to the proposed termination. 

In a July 6, 2014 letter, appellant stated that OWCP failed to provide her with 30 days to 

respond to its notice. She related that she was not able to get an appointment with her physician 

until the end of July 2014 due to the Fourth of July holiday and vacation. Appellant contended 

that there were no changes in her health and back pain since her 1981 employment injury and 

that she continued to require medical treatment. 

In a September 16, 2014 decision, OWCP finalized the termination of appellant’s wageloss compensation benefits effective September 21, 2014. It found that the opinion of 

Dr. Millheiser constituted the weight of the medical evidence. OWCP did not terminate medical 

benefits. 

LEGAL PRECEDENT 

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

termination or modification of an employee’s benefits.4

 It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.5 

The burden of proof includes the necessity of furnishing rationalized medical opinion evidence 

based on a proper factual and medical background.6 

ANALYSIS 

The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation as of September 21, 2014. OWCP accepted that appellant sustained low back 

derangement and degeneration of the lumbar or lumbosacral intervertebral disc while in the 

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

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

ECAB 541 (1986). 

6 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 
4

performance of duty. It subsequently referred her to Dr. Millheiser for a second opinion 

evaluation. 

In a May 15, 2014 report, Dr. Millheiser reviewed a complete and accurate factual and 

medical background, and provided a reasoned medical opinion that appellant could return to her 

date-of-injury position. He noted the lack of significant objective findings based on physical 

examination and reviewed the diagnostic studies. Dr. Millheiser found essentially normal 

examination findings with the exception of mildly restricted range of motion of the lumbar spine. 

He determined that there were no objective findings to support any disability due to the accepted 

conditions. Dr. Millheiser reviewed a description of appellant’s deputy marshal position. He 

concluded that she could return to this full-time position without restrictions. The Board notes 

that there is no contemporaneous medical evidence from an attending physician that discussed a 

continuing employment-related disability. Prior to the termination,7

 the February 18, 2013 report 

of Dr. Baynham found that appellant had back and bilateral leg pain, numbness, and paresthesias. 

However, he did not address the issue of continuing employment-related disability. 

The Board finds that Dr. Millheiser’s report represents the weight of the medical 

evidence and that OWCP properly relied on his report in terminating appellant’s wage-loss 

compensation for the accepted employment-related conditions on September 16, 2014. 

On appeal counsel contended that Dr. Millheiser’s report was not entitled to the weight of 

the medical opinion evidence. He asserted that his report was extremely speculative and failed to 

provide a rationalized opinion explaining how the accepted employment-related degeneration of 

the lumbar intervertebral disc had resolved. Dr. Millheiser opined that there were no objective 

findings to support residuals of appellant’s accepted conditions, yet he also diagnosed lumbar 

spine degenerative disease, an accepted employment-related condition. While Dr. Millheiser did 

not provide a definitive opinion as to whether appellant had any continuing employment-related 

residuals, the Board notes that OWCP did not terminate medical benefits for any of her accepted 

conditions. 

Counsel further asserted that Dr. Millheiser failed to demonstrate his knowledge of the 

physical requirements of appellant’s job and her residual physical capacity as he only reviewed 

the duties of the position without discussion and he reviewed prior diagnostic test results without 

citing to recent diagnostic test results in support of his opinion that there were no objective 

findings of a residual disabling condition. There is no evidence that Dr. Millheiser’s 

examination was deficient in any way. He provided detailed clinical findings, and reviewed the 

medical record and a description of appellant’s deputy marshal duties. After a thorough 

examination, Dr. Millheiser concluded that there were no objective findings to support any 

residual employment-related disability and that appellant could return to her regular work duties 

with no restrictions. 

Lastly, counsel contended on appeal that Dr. Millheiser failed to discuss limitations 

related to appellant’s consequential right knee condition and whether she could resume her dateof-injury position or any other suitable position due to this condition. However, OWCP has not 

 7

 The Board notes that, prior to OWCP’s September 16, 2014 termination decision, OWCP properly gave 

appellant 30 days to respond to its June 30, 2014 pretermination notice. Federal (FECA) Procedure Manual, Part 

2 -- Claims, Disallowances, Chapter 2.1400.7 (February 2013). 
5

accepted appellant’s claim for a right knee condition. For conditions not accepted by OWCP as 

being employment related, it is appellant’s burden to provide rationalized medical evidence 

sufficient to establish causal relation.8

 Appellant did not submit any rationalized medical 

evidence establishing that she sustained a right knee condition as a consequence of her accepted 

employment-related injuries. 

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. 

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s wage-loss compensation 

effective September 21, 2014 on the grounds that she no longer had any disability causally 

related to her accepted employment-related injuries. 

ORDER 

IT IS HEREBY ORDERED THAT the September 16, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed.9

Issued: March 28, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 8 T.M., Docket No. 08-975 (issued February 6, 2009). 

9

 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.