United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.A., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Hattiesburg, MS, Employer 

__________________________________________ 

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Docket No. 16-0213 

Issued: August 19, 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 November 16, 2015 appellant filed a timely appeal from a May 20, 2015 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, effective May 20, 2015. 

FACTUAL HISTORY 

On January 11, 2013 appellant, then a 60-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging injuries to her neck and back as a result of a vehicular 

incident on December 27, 2012. She stopped work on December 27, 2012. By decision dated 

 1

 5 U.S.C. § 8101 et seq.
2

February 14, 2013, OWCP accepted appellant’s claim for acute sprains of the neck and back, 

lumbar region. Appellant began receiving benefits on the periodic rolls as of February 11, 2013. 

By letter dated April 12, 2013, OWCP sent a letter to appellant’s treating physician, 

Dr. Michael C. Patterson, a Board-certified orthopedic surgeon, requesting information as to 

whether appellant’s acute neck and lumbar sprains had resolved and whether she was currently 

able to work at her date-of-injury position. In a report dated June 6, 2013, Dr. Patterson noted 

that his current diagnosis was facet joint syndrome. He opined that her lumbar sprain had 

resolved without residuals, though she was still experiencing issues with her cervical spine and 

facet joint syndrome. Dr. Patterson noted that appellant had requested authorization for facet 

joint injections, but was denied. 

On July 3, 2013 OWCP scheduled an appointment with a second opinion physician to 

determine whether appellant’s accepted conditions had resolved without residuals. In a second 

opinion report dated July 18, 2013, Dr. Byron T. Jeffcoat, a Board-certified orthopedic surgeon, 

opined that appellant’s lumbar sprain had resolved without any acute changes. He also noted 

that appellant’s acute neck sprain had resolved, noting that she had degenerative cervical changes 

and facet arthrosis which were present prior to the accepted injury. Dr. Jeffcoat noted that 

appellant did not suffer any disabling residuals due to her accepted conditions. 

By letter dated September 18, 2013, OWCP notified appellant of its proposed termination 

of medical and wage-loss benefits based on the report of Dr. Jeffcoat. It noted that she had 

preexisting conditions of a compression fracture at L1 and L5, lumbar degenerative disc disease, 

left cervical degenerative changes at C4-5, left cervical facet arthrosis with mild foraminal 

stenosis at C5-6, and right carpal tunnel syndrome. OWCP noted that appellant stopped work on 

December 27, 2012, returned to work at full duty on December 29, 2012, and stopped work 

again on January 28, 2013. Appellant had not returned to work since January 28, 2013. OWCP 

further noted that, although Dr. Patterson diagnosed cervical facet joint syndrome, his report 

lacked sufficient rationale to explain how this condition was related to the incident of 

December 27, 2012. It concluded that Dr. Jeffcoat’s report established that appellant’s accepted 

medical conditions had resolved without residuals and, therefore, recommended that her medical 

and wage-loss benefits be terminated. 

On November 21, 2013 OWCP finalized its decision to terminate appellant’s medical and 

wage-loss benefits associated with her claim. 

On December 15, 2013 appellant requested a review of the written record before an 

OWCP hearing representative. 

By decision dated March 31, 2014, the hearing representative reversed the November 21, 

2013 decision to terminate appellant’s wage-loss compensation and medical benefits. She found 

that OWCP had failed to sufficiently develop the question of whether appellant had additional 

conditions related to the incident, given that Dr. Patterson had reported that she had additional 

conditions related to the incident of December 27, 2012. The hearing representative noted that 

OWCP should have obtained a supplemental opinion from Dr. Jeffcoat on this issue prior to 

termination. 
3

By letter dated April 4, 2014, OWCP requested that Dr. Jeffcoat address the question of 

whether appellant had any cervical conditions, other than those already accepted, related to the 

incident of December 27, 2012, with specific reference to Dr. Patterson’s reports. 

In a report dated June 12, 2014, Dr. Gary D. Carr, Board-certified in family medicine, 

noted that he wanted appellant to discontinue work at the employing establishment as she 

presently was unable to do this work. Appellant stated that she wanted to wait to see how much 

improvement she would get by not working. 

In a record of a telephonic conversation dated June 13, 2014, an OWCP representative 

received a call from appellant informing her that Dr. Jeffcoat had retired and therefore could not 

provide a clarification report. OWCP scheduled an appointment with a new second opinion 

specialist, Dr. Douglas N. Lurie, a Board-certified orthopedic surgeon. 

In a second opinion report dated June 24, 2014, Dr. Lurie examined appellant and opined 

that appellant’s current soft tissue conditions had been aggravated as a result of the accepted 

incident. 

In response to OWCP’s query, Dr. Lurie stated that appellant’s conditions had been 

aggravated by the accepted incident, but that appellant was capable of working regular duty. 

On July 31, 2014 expanded the accepted conditions to include an aggravation of the 

cervical intervertebral disc. 

On August 5, 2014 OWCP notified appellant of its proposed termination of wage-loss 

benefits based on the report of Dr. Lurie, who had opined that she had no continuing disability 

and could work full duty without restrictions. It noted that the opposing report of record from 

Dr. Carr indicated only that she had continued disability due to complaints of pain and her own 

opinion that she should not work, and that, as such, the weight of medical evidence rested with 

Dr. Lurie. 

In a report dated August 25, 2014, Dr. Howard T. Katz, Board-certified in physical 

medicine and rehabilitation, examined appellant and diagnosed “status post motor vehicle 

[incident], December 27, 2012,” status postacute cervical strain with ongoing neck pain and 

headaches, status post left shoulder strain, temporomandibular joint dysfunction, cervical 

spondylosis, neck pain with left-sided nonverifiable radicular complaints, status postacute 

lumbar sprain, an L4-5 broad-based disc bulge with mild neuroforaminal narrowing, a history of 

L1 and L5 compression fractures prior to the motor vehicle incident, lumbar spondylosis, and 

mechanical lower back pain. He opined that she had ongoing neck pain, headaches, and 

myofascial pain in the left shoulder girdle and neck secondary to her acute cervical strain and left 

shoulder strain. Dr. Katz further explained that as a result of the motor vehicle incident, her 

preexisting history of lower back pain had been made worse, and he noted that she continued to 

have low back pain that was worse on the date of examination than prior to the accepted incident. 

With regard to appellant’s disability from work, Dr. Katz reported, “[Appellant] is 

capable of performing light and sedentary activities.” He went on to describe several specific 

limitations, including frequent lifting limited to 10 pounds, and occasional lifting, carrying, and 

pushing/pulling up to 20 pounds. 
4

On December 1, 2014 Dr. Constantine P. Charoglu, a Board-certified orthopedic surgeon, 

examined appellant and listed a history of injury of bilateral Morton’s neuromas, left rotator cuff 

bursitis, cervical spine problems, and a bilateral carpal tunnel release. He assessed her current 

conditions as damage to the plantar nerve causing pain, numbness, and muscle spasms in the 

foot, as well as and ankle and foot joint pain. 

In a report dated December 8, 2014, Dr. David Weiss, a Board-certified internist, 

examined appellant for a rheumatology consultation on reference from Dr. Carr. He diagnosed 

cervical myofascial pain with findings of spondylosis, degenerative disc disease, facet 

arthropathy, and mechanical lower back pain. Dr. Weiss recommended a lumbar spine support 

brace for appellant’s back pain. In a follow-up report dated February 5, 2015, he noted that she 

had chronic mechanical neck and lower back pain, with possible symptoms of lumbar 

radiculopathy. 

By decision dated May 20, 2015, OWCP finalized its decision to terminate appellant’s 

wage-loss compensation benefits associated with this claim. In its decision, it analyzed the 

reports of Drs. Katz, Charoglu, and Weiss, finding that each of the reports was deficient and of 

diminished probative value, and that, as such, Dr. Lurie’s medical opinion constituted the weight 

of medical evidence. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of justifying termination or modification 

of compensation benefits.2 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.3

FECA provides that, if there is a 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 the examination.4 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 an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee or impartial examination and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.5

 2 Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000). 

3 Mary A. Lowe, 52 ECAB 223, 224 (2001). 

4

 5 U.S.C. § 8123(a). 

5

 20 C.F.R. § 10.321. 
5

To be of probative value, a medical opinion must be based on a complete factual and 

medical background, must be of reasonable medical certainty, and must be supported by medical 

rationale.6

 Medical rationale is a medically sound explanation for the opinion offered.7

It is well established that when a case is referred to an impartial medical specialist for the 

purpose of resolving a conflict the opinion of such specialist, if sufficiently well rationalized and 

based on a proper factual and medical background, must be given special weight.8

ANALYSIS 

The Board finds that OWCP did not meet its burden of proof to justify termination of 

wage-loss benefits. 

As of July 31, 2014, the accepted conditions in this case included neck and lumbar sprain, 

and aggravation of cervical intervertebral disc degeneration. OWCP based its decision to 

terminate appellant’s wage-loss benefits on the second opinion report of Dr. Lurie dated 

June 24, 2014. In this report, Dr. Lurie opined that appellant’s accepted conditions no longer 

caused disability and that she was capable of returning to her date-of-injury position. He noted, 

“I think [appellant] is capable of working regular duty. [Appellant] does not have functional 

deficits that would prevent her from working.... She is capable of working full duty with no 

restrictions.” 

On August 25, 2014 Dr. Katz examined appellant and opined that “Based on the history 

given by [appellant], this preexisting history of low back pain has been made worse and she 

continues to have low back pain that is worse today than prior to December 27, 2012.” With 

regard to appellant’s disability from work, Dr. Katz noted, “[Appellant] is capable of performing 

light and sedentary activities.” He detailed physical limitations including frequent lifting and 

carrying up to 10 pounds, and occasional lifting and carrying to 20 pounds. Dr. Katz therefore 

opined, in contradiction to Dr. Lurie, that appellant’s accepted cervical and lumbar sprains 

continued to cause secondary pain and headaches, and required physical restrictions, such that 

she could not return to her date-of-injury position without restrictions. 

Dr. Katz’ report, as well as that of Dr. Lurie, contained results of an examination, an 

accurate medical history, and a well-reasoned opinion that appellant’s conditions had been 

aggravated by the accepted incident. Their opinions, however, differed as to whether appellant 

could return to full-duty work. The Board finds that Dr. Katz’ August 25, 2014 report contains 

no inaccuracies or discrepancies such that his report would be of diminished probative value. As 

such, his report is of probative value on the issue of whether appellant had residual disability as a 

result of her accepted injury, and is of equal weight to that of Dr. Lurie.9

 6 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

7 See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641 

(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical). 

8 Gloria J. Godfrey, 52 ECAB 486, 489 (2001). 

9 See J.H., Docket No. 15-1726 (issued January 19, 2016). 
6

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation effective May 20, 2015, because as of this date there was an unresolved 

conflict of medical opinion between Drs. Lurie and Katz. Each physician had the opportunity to 

examine her and review the diagnostic studies of record. The reports provided equally wellrationalized explanations for their opinions on appellant’s continued disability and work 

restrictions. With respect to the existence and extent of any ongoing employment-related 

disability, the Board finds that the relevant and probative medical evidence is in equipoise. 

It is well established that, where there exist opposing medical reports of virtually equal 

weight and rationale, the case should be referred to an impartial medical specialist for the 

purpose of resolving the conflict.10 The Board finds that OWCP should have submitted both 

Dr. Lurie’s and Dr. Katz’ reports to an impartial specialist to resolve the conflict in medical 

opinion evidence before rendering a termination decision. As OWCP failed to base its decision 

on a resolution of the opinion evidence, the Board finds that it did not meet its burden of proof to 

terminate appellant’s wage-loss benefits. Accordingly, OWCP’s decision to terminate 

appellant’s wage-loss benefits is reversed. 

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation benefits, effective May 20, 2015. 

 10 H.S., Docket No. 10-1220 (issued May 24, 2011). 
7

ORDER 

IT IS HEREBY ORDERED THAT the May 20, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: August 19, 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