United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Burnsville, MN, Employer 

__________________________________________ 

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Docket No. 15-1126 

Issued: August 15, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On April 22, 2015 appellant filed a timely appeal from a December 2, 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 met its burden of proof to terminate appellant’s wage-loss 

compensation benefits. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts and circumstances outlined in 

the prior Board decision are incorporated herein by reference. The facts relevant to the present 

appeal are set forth below. 

 1

 5 U.S.C. § 8101 et seq.
2

On May 26, 1999 appellant, a 49-year-old postmaster, filed a claim alleging an emotional 

condition causally related to factors of her federal employment. OWCP accepted as factual and 

compensable that she worked 10 to 12 hours a day and weekends due to understaffing and trying 

to meet the demands of her job. It found no other compensable employment factor. OWCP 

accepted appellant’s claim for major depression with psychotic features and paid compensation 

for temporary total disability on the periodic rolls. 

On September 11, 2007 OWCP terminated appellant’s wage-loss compensation and 

medical benefits, effective that same date.2

 It found that, based on the opinion of Dr. Thomas G. 

Gratzer, a Board-certified psychiatrist and referee physician, appellant’s current psychiatric 

condition and disability were no longer causally related to the one compensable employment 

factor that had been accepted. Appellant appealed OWCP’s termination decision to the Board. 

In a July 10, 2008 decision,3 the Board affirmed OWCP’s decision to terminate benefits, 

finding that Dr. Gratzer’s opinion was well rationalized and carried special weight in resolving 

the conflict between appellant’s treating psychologist and OWCP’s referral physician on whether 

she had any residual emotional condition causally related to the one compensable employment 

factor established in the case.4

On June 25, 2009 OWCP received from appellant a request for reconsideration dated 

June 8, 2009. By decision dated September 23, 2009, it denied modification of the Board’s 

termination decision.5

Appellant subsequently appealed to the Board and contended that Dr. Gratzer had not 

been properly selected as an independent medical examiner. By order dated September 28, 

2011, the Board remanded the case finding that OWCP had failed to follow the necessary 

selection procedures. Therefore, the Board essentially reversed the September 23, 2009 

termination decision.6 

On remand OWCP subsequently referred appellant, together with the medical record and 

a statement of accepted facts, to Dr. Joseph J. Burgarino, a Board-certified psychiatrist, for an 

impartial medical evaluation. Dr. Burgarino evaluated appellant on September 27, 2014. He 

related her history and reviewed her medical records, as well as an amended statement of 

accepted facts. Dr. Burgarino described his findings on physical and neurologic examination. 

He then addressed the questions posed by OWCP. Dr. Burgarino opined that appellant’s 

neuropsychiatric diagnosis was depressive disorder with a history of episodic, psychotic, and 

psychotiform features not otherwise specified; anxiety disorder with a history of episodic, 

psychotiform, and psychotic features not otherwise specified; and histrionic personality traits. 

 2

 This decision followed a notice of proposed termination dated August 10, 2007. 

3

 Docket No. 08-0009 (issued July 10, 2008). 

5

 In its decision, OWCP noted its “affirmance” of the Board’s July 10, 2008 decision. It is not authorized to 

review Board decisions. Although the July 10, 2008 decision was the last merit decision, its September 11, 2007 

termination decision was the appropriate subject of possible modification by OWCP. See 20 C.F.R. § 501.6(d). 

6

 Docket No. 10-0404 (issued September 28, 2011), petition for recon. denied, (issued April 25, 2012). 
3

He concluded that a comprehensive review of the medical record did not support a diagnosis of 

post-traumatic stress disorder as appellant did not meet the criteria for that diagnosis. 

Dr. Burgarino opined, within a reasonable degree of medical certainty, that appellant no 

longer suffered from any emotional condition causally related to the one accepted compensable 

factor in the case, namely, increased work demands due to expansion, which subjected her to 

long hours. He determined that she did not meet, and never met, the criteria for post-traumatic 

stress disorder, depressive disorder, and anxiety disorder not otherwise specified with episodic 

psychotic and psychotiform features, and these disorders cannot be substantially related to the 

one accepted compensable employment factor. The experience of working long hours and 

weekends, Dr. Burgarino explained, would not, within a reasonable degree of medical certainty, 

produce such disorders. Further, as noted by other medical examiners, appellant did not relate 

any of her emotional/psychological/psychiatric symptoms to the experience of working long 

hours. Instead, she related her symptoms to being harassed, harangued, and discriminated 

against, which was not accepted as factual. Dr. Burgarino therefore concluded that appellant, 

within a reasonable degree of medical certainty, never suffered from an emotional/ 

psychological/psychiatric condition causally related to the one accepted employment factor. 

Dr. Burgarino further explained that appellant’s current conditions were conditions 

without a single causative factor, but rather a complex interplay of multiple constitutional 

neuropsychobiological and experiential antecedents. Given her persistent anger toward the 

employing establishment, he found it unlikely that she would desire to return to her postmaster 

duties, but that would be a personal choice. There was no compelling substantive 

medical/neuropsychiatric evidence to support any inability to return to any full-time position for 

which she was qualified. 

In a decision dated December 2, 2014, OWCP again affirmed the termination of wageloss compensation and medical benefits. It found that Dr. Burgarino’s opinion carried the weight 

of the medical opinion evidence sufficient to support OWCP’s decision to terminate appellant’s 

wage-loss compensation and medical benefits as she no longer had disability causally related to 

her accepted employment injury. 

LEGAL PRECEDENT 

The United States shall pay compensation for the disability of an employee resulting 

from personal injury sustained while in the performance of duty.7

 Once OWCP accepts a claim, 

it has the burden of proof to justify termination or modification of compensation benefits.8

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.9

 When there exist opposing medical reports of virtually equal weight and 

 7

 5 U.S.C. § 8102(a). 

8 Harold S. McGough, 36 ECAB 332 (1984). 

9

 5 U.S.C. § 8123(a). 
4

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 upon a 

proper factual background, must be given special weight.10

When OWCP secures an opinion from an impartial medical specialist for the purpose of 

resolving a conflict in the medical evidence, and the opinion from the specialist requires 

clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the 

specialist for the purpose of correcting a defect in the original report. When the impartial medical 

specialist’s statement of clarification or elaboration is not forthcoming, or if the specialist is unable 

to clarify or elaborate on the original report, or if the specialist’s supplemental report is also vague, 

speculative, or lacks rationale, OWCP must submit the case record together with a detailed 

statement of accepted facts to a second impartial specialist for a rationalized medical opinion on 

the issue in question.11 Unless this procedure is carried out by OWCP, the intent of section 

8123(a) of FECA will be circumvented when the impartial specialist’s medical report is 

insufficient to resolve the conflict of medical evidence.12

ANALYSIS 

Following the Board’s September 28, 2011 order, OWCP referred appellant to a new 

impartial medical specialist, Dr. Burgarino, a Board-certified psychiatrist, to determine whether 

appellant had continuing disability causally related to her accepted emotional condition claim. 

Dr. Burgarino opined that appellant no longer suffered from an emotional condition 

causally related to the one accepted compensable factor in the case. However, his opinion that 

she never suffered from an emotional/psychiatric condition conflicts with OWCP’s acceptance of 

major depression with psychotic features, which was noted in the statement of accepted facts that 

OWCP provided to Dr. Burgarino. While the impartial medical examining psychiatrist is free to 

disagree with OWCP’s acceptance of a medical condition, he must offer sound medical 

reasoning in support of his view, and thereafter OWCP must properly advise appellant of the 

actual basis of its final decision. The Board has held that it is a denial of administrative due 

process for OWCP to terminate compensation benefits on the ostensible basis that a claimant no 

longer suffers residuals of an accepted condition, where the record supports that the real reason 

for OWCP’s action was that it had determined that the condition was not causally related to the 

claimant’s employment and should not have been accepted as such.13 OWCP must inform a 

 10 Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980). 

11 See Nathan L. Harrell, 41 ECAB 402 (1990). 

12 Harold Travis, 30 ECAB 1071 (1979). 

13 See John M. Pittman, 7 ECAB 514 (1955) (where the Bureau, now known as OWCP, denied a claim and 

terminated benefits on the ostensible grounds that a claimant was not disabled for work beyond a specific date, when 

it appeared from the record that the real reason for denial was that the Bureau had determined that the injuries 

alleged had not in fact occurred and that the claimant had never been disabled, but had been guilty of malingering). 
5

claimant correctly and accurately of the reasoning on which a decision rests, so as to afford an 

opportunity to meet, if they can, any defect appearing therein.14

Dr. Burgarino advised that the experience of working long hours and weekends would 

not, within a reasonable degree of medical certainty, produce appellant’s current depressive 

disorder, and anxiety disorder, but he failed to provide any medical rationale in support of his 

conclusion. As the opinion of the impartial medical specialist lacks sufficient medical rationale 

and therefore requires clarification, the Board finds that his opinion is insufficient to carry the 

special weight in resolving the outstanding conflict. As OWCP bears the burden of proof to 

terminate appellant’s compensation for the accepted condition of depression, the Board will 

reverse OWCP’s December 2, 2014 decision. 

CONCLUSION 

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

compensation benefits. 

ORDER 

IT IS HEREBY ORDERED THAT the December 2, 2014 decision of Office of 

Workers’ Compensation Programs is reversed. 

Issued: August 15, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 14 E.g., id.; James D. Boller, Jr., 12 ECAB 44 (1960).