United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Alexandria, VA, Employer 

__________________________________________ 

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Docket No. 16-0980 

Issued: November 8, 2016 

Appearances: Case Submitted on the Record

Richard A. Daniels, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 7, 2016 appellant, through his representative, filed a timely appeal of a 

February 2, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to consider the merits of the case. 

ISSUES 

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

wage-loss compensation and medical benefits effective February 12, 2015; and (2) whether 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

appellant has met his burden of proof to establish any continuing disability or medical residuals 

on or after February 12, 2015. 

On appeal, appellant’s representative contends that the physician selected as the impartial 

medical examiner was not entitled to the weight of the medical evidence as his report dismissed 

appellant’s electromyogram (EMG) findings and was internally inconsistent and contradictory. 

FACTUAL HISTORY 

On February 26, 2014 appellant, then a 44-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he fell down steps coated with ice and snow injuring his back 

on February 25, 2014. OWCP accepted his claim on April 15, 2014 for lumbar sprain and sprain 

of the sacroiliac ligament. 

Dr. John A. Bruno, a Board-certified orthopedic surgeon, examined appellant on 

April 24, 2014. He noted appellant’s history of slipping and falling on icy steps on 

February 25, 2014. Dr. Bruno found that appellant demonstrated severe back spasm with right 

sciatica, weakness in his right leg, and numbness in his right leg. He opined that the additional 

condition of sciatica should be accepted by OWCP. 

Appellant underwent a lumbar magnetic resonance imaging (MRI) scan on April 26, 

2014 which demonstrated that all lower thoracic and upper lumbar disc levels were within 

normal limits. The MRI scan also demonstrated a diffuse disc bulge at L4-5 as well as mild 

spondylosis at L4-5. The test indicated that appellant had a central disc protrusion at L5-S1 

extending into the epidural fat with no thecal sac compression or nerve root impingement. He 

also had mild spondylosis at L5-S1 with no evidence of significant stenosis or nerve root 

impingement. 

On May 28, 2014 Dr. Bruno diagnosed lumbosacral strain and sciatica. He found that 

appellant demonstrated severe pain, limited range of motion, and sciatica unresponsive to 

medication. 

Dr. Suneetha Budampati, a Board-certified physiatrist and physician at the National 

Spine Pain Center, examined appellant on June 16, 24, and July 11, 2014 and described his 

history of injury. He reviewed the April 26, 2014 MRI scan and diagnosed L5-S1 central 

herniated disc and L4-5 diffuse disc bulge with mild hypertrophic changes to the facet joints. 

Dr. Budampati diagnosed lumbar radiculopathy, low back pain, and lumbar disc displacement. 

He found that appellant was totally disabled. 

On June 24, 2014 Dr. Budampati noted that appellant’s primary area of pain was his low 

back. Appellant also described symptoms of numbness, weakness, tingling, and burning. 

Dr. Budampati found an antalgic gait, taut bands in the lower paraspinal, the gluteus medius, and 

gluteus maximus. He noted that appellant was tender to palpitation in the bilateral sciatic 

notches and through the lumbosacral area. Dr. Budampati continued to diagnosed lumbar 

radiculopathy, lumbago, and lumbar disc displacements. He found that appellant was totally 

disabled. 
3

OWCP referred appellant for a second opinion examination with Dr. Willie E. 

Thompson, a Board-certified orthopedic surgeon. In his June 24, 2014 report, Dr. Thompson 

described appellant’s history of injury and medical treatment. He noted that appellant reported 

localized low back pain without radiculopathy and found diffuse tenderness in the lumbar spine 

and limited motion in all planes. Appellant demonstrated decreased sensation of the S1 

distribution bilaterally, but motor function in the lower extremities was intact. Dr. Thompson 

found that appellant’s MRI scan was “essentially within normal limits.” He attributed 

appellant’s current symptoms of low back pain to soft tissue injuries and found no evidence of 

any intrinsic injury to the spinal cord. Dr. Thompson attributed appellant’s disability to his 

accepted employment injury and found that appellant could perform sedentary work eight hours 

a day within work restrictions. 

Dr. Bruno examined appellant on July 8, 2014 and found that appellant was in severe 

pain and unable to work. Appellant underwent an EMG and motor nerve conduction velocity 

(NCV) studies on July 25, 2014 which demonstrated left moderate L4 through S1 radiculopathy 

and right moderate-to-severe S1 radiculopathy. 

Dr. Budampati examined appellant on July 29 and August 14 and 28, 2014 and 

performed epidural steroid injections. On September 12, 2014 he determined that appellant 

sustained no benefit from the injections. 

Dr. Bruno reviewed appellant’s EMG/NCV results on August 14, 2014 and diagnosed 

bilateral lower extremity radiculitis. On September 15, 2014 he noted that appellant 

demonstrated marked muscular spasm in the lower back with loss of motion. Dr. Bruno 

diagnosed lumbar strain with chronic pain syndrome. He opined that appellant was unfit for his 

usual job. On October 20, 2014 Dr. Bruno recommended a neurosurgical consultation as 

appellant’s condition had not changed. 

OWCP referred appellant to Dr. Wylie Lowery, a Board-certified orthopedic surgeon, for 

an impartial medical examination to resolve the conflict of medical opinion evidence between 

Drs. Bruno and Thompson. 

Dr. Bruno examined appellant on October 30, 2014 and again opined that appellant was 

totally disabled. He noted that appellant was using a cane, wearing a back brace, and had a nerve 

stimulation unit. Dr. Bruno again recommended a neurosurgical consultation. 

Dr. Lowery examined appellant on December 18, 2014. He indicated that he reviewed 

records, x-rays, and some scans. Dr. Lowery described appellant’s history of injury as falling on 

icy steps and listed his medical treatment. He noted that the conflict arose concerning 

appellant’s ability to work. Dr. Lowery noted that appellant used a slow gait, a cane, and a back 

brace. Appellant reported lower back pain worse than his leg pain. He did report generalized 

pain and numbness in the entirety of both lower extremities, as well as generalized weakness not 

explained on any dermatomal patterns, or specific muscle groups. Dr. Lowery found apparent 

symptom magnification with some disproportionate pain behavior on examination. He found 

that appellant had positive Waddell signs including superficial skin tenderness as well as low 

back pain with downward pressure of the skull while standing. Dr. Lowery found no evidence of 

herniated disc on appellant’s MRI scan and instead reported mild disc desiccation and some 
4

degenerative disc changes. He opined that appellant’s claim should not be expanded beyond the 

accepted conditions of lumbar strain and lumbosacral iliac strain. Dr. Lowery reported no 

objective findings noting that the EMG findings of radiculitis were nonspecific, did not relate to 

any findings on clinical examination, and did not relate to any findings on appellant’s MRI scan. 

He concluded that appellant did not have any demonstrable injury to his nerves. Dr. Lowery also 

opined that appellant “should and has fully recovered from this particular diagnosis, the 

diagnosis of strain.” 

On January 8, 2015 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits. It found that Dr. Lowery, the impartial medical examiner, was entitled to 

the special weight of the medical opinion evidence. OWCP afforded appellant 30 days for a 

response. 

Dr. Budampati completed a report on January 5, 2015 and repeated his previous findings 

and conclusions. 

On January 14, 2015 Dr. Bruno reviewed Dr. Lowery’s report and disagreed with his 

findings. He emphasized that appellant had an abnormal EMG study with bilateral lower 

extremity radiculitis. Dr. Bruno also contended that appellant’s MRI scan demonstrated disc 

herniations. He continued to opine that appellant required treatment and was disabled from his 

date-of-injury position. 

By decision dated February 12, 2015, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective February 12, 2015 based on Dr. Lowery’s IME 

report. 

Following the February 12, 2015 decision, appellant submitted a report dated February 6, 

2015 from Nora Tobin, a physician assistant. On April 14, 2015 Dr. Ramatia Mahboobi, a 

Board-certified anesthesiologist, examined appellant due to bilateral lower extremity pain. He 

found a small central herniated disc at L5-S1 on appellant’s MRI scan and noted that appellant’s 

EMG showed radiculopathy. 

Appellant sought medical treatment from Dr. Austin W. Reynolds, a physician Boardcertified in emergency medicine, on November 22, 2014 due to low back pain. He reported 

radiation of pain down the back of both legs, which he attributed to multiple herniated lumbar 

discs. Dr. Reynolds diagnosed chronic back pain. 

Appellant’s representative requested reconsideration on July 23, 2015 and argued that 

Dr. Lowery’s report was not entitled to the weight of the medical evidence as he did not review 

the actual MRI scan and ignored the EMG/NCV test results. He further contended that 

Dr. Lowery contradicted himself regarding radiculopathy as he noted that appellant complained 

of numbness in addition to pain. The representative opined that Dr. Lowery’s conclusions did 

not coincide with his physical examination. 

By decision dated February 2, 2016, OWCP reviewed the merits of appellant’s claim, but 

denied modification of the termination decision. 
5

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.3

 After it has 

determined that an employee has disability causally related to his or her federal employment, 

OWCP may not terminate compensation without establishing that the disability has ceased or 

that it is no longer related to the employment.4

 Furthermore, the right to medical benefits for an 

accepted condition is not limited to the period of entitlement for disability.5 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.6

When there are opposing reports of virtually equal weight and rationale, the case will be 

referred to an impartial medical specialist pursuant to section 8123(a) of FECA, which 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 and resolve the conflict of medical evidence.7 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.8

In situations where there are opposing medical reports of virtually equal weight and 

rationale, and the case is referred to an impartial medical specialist for the purpose of resolving 

the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper 

factual background, must be given special weight.9 

ANALYSIS -- ISSUE 1 

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits effective February 12, 2015. 

OWCP accepted appellant’s claim for lumbar sprain and sprain of the sacroiliac ligament 

as a result of his work-related fall on February 25, 2014. Appellant’s attending physicians, 

Drs. Bruno and Budampati, diagnosed a herniated lumbar disc based on MRI scan, found 

evidence of radiculopathy on EMG, and concluded that appellant was totally disabled due to 

these additional conditions. 

 3 Mohamed Yunis, 42 ECAB 325, 334 (1991). 

4 Id.

5 Furman G. Peake, 41 ECAB 361, 364 (1990). 

6 Id.

7

 5 U.S.C. § 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006). 

8 R.C., 58 ECAB 238 (2006). 

9 Nathan L. Harrell, 41 ECAB 401, 407 (1990). 
6

OWCP referred appellant for a second opinion evaluation with Dr. Thompson who 

reported on June 24, 2014 that appellant had diffuse tenderness in the lumbar spine and limited 

motion in all planes. Dr. Thompson also found that appellant demonstrated decreased sensation 

of the S1 distribution bilaterally. He determined that appellant’s MRI scan was “essentially 

within normal limits” and diagnosed soft tissue injuries resulting from low back pain with no 

intrinsic injury to his spinal cord. Dr. Thompson concluded that appellant could perform 

sedentary work eight hours a day and offered work restrictions. 

Due to the disagreement between appellant’s physicians and Dr. Thompson regarding the 

extent of appellant’s employment-related conditions and his resulting disability, the Board finds 

that OWCP properly determined that there was a conflict of medical evidence necessitating 

referral to an impartial medical specialist. 

OWCP referred appellant to Dr. Lowery to resolve the ongoing issues of disability and 

medical conditions. Dr. Lowery reviewed the statement of accepted facts and described 

appellant’s employment injury. He also described appellant’s medical treatment and analyzed 

electrodiagnostic studies including appellant’s MRI scan and EMG. Dr. Lowery found strong 

evidence of symptom magnification on physical examination and no objective physical findings 

in support of appellant’s reports of back and lower extremity pain. He noted that appellant 

reported generalized pain and numbness in the entirety of both lower extremities, as well as 

generalized weakness, which were not explained by any dermatomal patterns or specific muscle 

groups. Dr. Lowery noted that appellant had positive Waddell signs including superficial skin 

tenderness as well as low back pain with downward pressure of the skull while standing. He 

determined that appellant’s MRI scan did not demonstrate a herniated disc, but instead showed 

mild disc desiccation and some degenerative disc changes. Dr. Lowery determined based on his 

review of the medical evidence and his physical examination that appellant’s claim should not be 

expanded beyond the accepted conditions of lumbar strain and lumbosacral iliac strain. He 

determined that the EMG findings of radiculitis were nonspecific, did not relate to any findings 

on clinical examination, and did not relate to any findings on appellant’s MRI scan. Dr. Lowery 

concluded that appellant did not have any demonstrable injury to his nerves. However, he also 

opined that appellant “should and has fully recovered from this particular diagnosis, the 

diagnosis of strain.” 

The Board finds that Dr. Lowery’s report is insufficient to constitute the special weight of 

the medical evidence as it does not address the issue of appellant’s ability to work and is 

ambiguous on the issue of whether he has recovered from his accepted employment injuries. 

Dr. Lowery noted that appellant should be capable of returning to his “normal line of work.” 

However, he failed to describe or mention appellant’s ability to perform his date-of-injury 

position and did not declare that appellant could return to his date-of-injury position without 

restrictions. Furthermore, while Dr. Lowery concluded that appellant’s accepted diagnoses of 

lumbar strain and sacroiliac strain were appropriate, he noted that appellant both “should or has 

fully recovered from this diagnosis.” The ambiguity of his findings regarding whether 

appellant’s strains had resolved as well as the complete lack of opinion on appellant’s possible 

need for work restrictions as found by Dr. Thompson, the second opinion physician, or his total 

disability for work as determined by appellant’s physicians, render his opinion insufficient to 

meet OWCP’s burden of proof. Due to the deficiencies, the Board finds that OWCP has not met 

its burden of proof to terminate appellant’s wage-loss compensation or medical benefits. 
7

Given the Board’s holding with respect to the first issue presented it is not necessary to 

address the second issue. 

CONCLUSION 

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits as the impartial medical adviser did not resolve the 

issues for which he has selected. 

ORDER 

IT IS HEREBY ORDERED THAT the February 2, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: November 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board