United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

L. STOKES MEDICAL CENTER, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 16-0890 

Issued: November 9, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 29, 2016 appellant, through counsel, filed a timely appeal of a February 16, 

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 this case. 

 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 (2006). 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

ISSUE 

The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective December 13, 2014. 

On appeal counsel contended that OWCP’s decision was contrary to fact and law. 

FACTUAL HISTORY 

On February 22, 2012 appellant, then a 53-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging that on February 18, 2012 a patient hit her from behind with his power 

wheel chair, thereby knocking the breath out of her. The patient then put his wheelchair into 

reverse pinning her between his wheel chair and the closet. She alleged that she sustained 

injuries to her middle back and the back of both thighs and both legs. Appellant stopped work 

on February 19, 2012, but returned to work full-time restricted duty on March 26, 2012. 

On May 9, 2012 appellant was in a nonwork-related motor vehicle accident. She was 

hospitalized for a nonwork-related condition on May 17, 2012. Appellant returned to restricted 

duty on May 25, 2012. She stopped work again on June 14, 2012, and filed a claim for wageloss compensation (Form CA-7) commencing June 17, 2012. Appellant was on military leave 

from June 17 through 30, 2012. By letter dated June 29, 2012, the employing establishment 

controverted her claim for further wage-loss compensation. 

On July 2, 2012 OWCP accepted appellant’s claim for sprain of the lumbar region and 

thoracic regions of the back, and contusions of the back, left hip, and left thigh. On October 11, 

2012 it expanded the acceptance to include left L5-S1 herniated disc to the list of accepted 

conditions. Appellant returned to restricted duty on February 13, 2013 and returned to full-time 

sedentary duty on April 15, 2013. Effective September 8, 2013, she was assigned to work a new 

temporary modified full-time position. 

In a November 15, 2013 progress note, Dr. Jerome B. Yokiel, appellant’s treating 

physician Board-certified in anesthesiology and pain medicine, diagnosed lumbar strain. He 

noted that appellant was having persistent symptoms for what was described as a lumbar strain 

injury, but that she had persistent symptoms of radicular-type pain. On March 5, 2014 

Dr. Yokiel diagnosed lumbar stain, thoracic strain, and back contusion. 

On July 25, 2014 OWCP prepared a statement of accepted facts and referred appellant to 

Dr. Manhal Ghanma, a Board-certified orthopedic surgeon, for a second opinion regarding the 

status of appellant’s accepted conditions. In an August 27, 2014 opinion, Dr. Ghanma listed 

appellant’s allowed conditions as lumbar sprain, thoracic sprain, back contusion, hip contusion, 

thigh contusion, and left L5-S1 disc herniation. He reviewed appellant’s medical record and 

provided results on physical examination. Regarding appellant’s March 2, 2012 MRI scan 

report, Dr. Ghanma noted multiple abnormalities with a central disc at L3-L4, bulging disc at L4-

L5, and left central disc herniation at L5-S1. Dr. Ghanma noted that his physical examination of 

appellant’s lumbosacral spine revealed no evidence of spine listing or abnormal curvature and no 

bruising or discoloration. He noted no scarring and no swelling or increased temperature in the 

lumbar region. Dr. Ghanma noted that she was tender to palpitation in her low back, but there 
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was no lumbar spasm on examination. He related that appellant complained of global decrease 

in left leg and left foot sensation, but that appellant gave almost no effort to move her left big toe 

or other muscles of her foot, and exhibited breakaway weakness to testing of her right foot and 

ankle muscles. Dr. Ghanma noted 20 degrees each of right and left lateral lumbar bend. He 

indicated that her knee and ankle reflexes were depressed bilaterally. Dr. Ghanma noted that 

appellant’s examination was characterized by significant abnormal illness behavior and symptom 

magnification, and that it was his opinion that the examination findings with respect to motor 

function were nonphysiologic, as were the sensory examination findings. He found that her 

thoracic examination and hip motion were normal. 

In response to a question from OWCP which requested that he provide a rationalized 

opinion, documented with objective findings, as to whether appellant had any active residuals of 

the accepted conditions, Dr. Ghanma responded that appellant no longer had any residuals of the 

accepted conditions, her examination findings reflected abnormal illness behavior and symptom 

magnification, as opposed to any actual evidence of injury. He opined that appellant was 

capable of returning to her normal work duties, and he indicated that he had no recommendation 

for any further treatment. Dr. Ghanma concluded that appellant had recovered from her work 

injury and that her prognosis was excellent. 

In an October 7, 2014 report, Dr. Todd S. Hochman, Board-certified in internal medicine, 

indicated that he had read Dr. Ghanma’s report. He conducted a physical examination and 

determined that appellant had midline discomfort in her lumbar region and that there was 

tenderness to the right and left of midline. Dr. Hochman noted that appellant complained of pain 

to the posterolateral lower extremities with straight leg raising, more on the left. He noted that 

patellar reflexes were decreased but symmetrical, that appellant was very guarded with lumbar 

flexion and extension, and that there was some weakness throughout her lumbar extremities. 

Dr. Hochman opined that, based on the history as reported by appellant and the physical 

examination, it was evident that appellant remained symptomatic from the February 18, 2012 

work injury, and could not return to her full-duty position as a nurse in the spinal cord unit. He 

ordered an updated lumbar MRI scan, and requested a functional capacity evaluation. 

Dr. Hochman recommended that appellant remain under the care of Dr. Yokiel for pain 

management. 

On October 27, 2014 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits as she no longer had residuals of the February 18, 2012 

employment injury. Appellant was afforded 30 days to file a response and submit further 

evidence. 

In an October 9, 2014 note, Dr. Hochman noted that he requested an updated MRI scan 

and functional capacity evaluation, and that he would keep appellant’s attorney advised of any 

changes to appellant’s medical condition. 

In an October 29, 2014 report, Dr. Yokiel diagnosed lumbar sprain, noted that appellant 

was improved, but recommended a new MRI scan and functional capacity evaluation. 

In a November 1, 2014 MRI scan of the lumbar spine, Dr. Douglas S. Arnson, a Boardcertified radiologist, listed T12-L1 disc herniation impinging the dural sac without stenosis; L3-4 
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mild bilateral foraminal impingement; and L5-S1 disc herniation impinging the epidural fat with 

contact to the dural sac. 

In a November 5, 2014 functional capacity evaluation report, Visar Duane, an 

occupational therapist indicated that the preponderance of evidence indicated less than full 

participation, and the performance criteria profile was consistent with possible symptom 

magnification. He opined that the demonstrated impairment data suggested that appellant may 

possess true dysfunction though the data may not represent her true status at this time. 

Mr. Duane opined that the demonstrated physical functions data should not be used to project 

current work capacity since appellant could likely have higher functional ability. He opined that 

appellant should be able to function at least at a sedentary physical demand level. 

In a November 28, 2014 note, Dr. Yokiel contended that appellant had disc herniation of 

her lumbar spine which appeared to be related to the accident in question, as he was not aware of 

any previous MRI scan examination of the lumbar spine or difficulties with her spine prior to the 

accident. He opined that unless there was evidence to the contrary, he believed that the lumbar 

disc herniation should be added as an allowance in her claim which he believed the source of her 

significant pain and the source of her inability to work. 

By decision dated December 9, 2014, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective December 13, 2014. 

On December 15, 2014 appellant requested a hearing before an OWCP hearing 

representative. 

In a September 30, 2015 report, Dr. Yokiel indicated that appellant returned with 

continued complaints of low back pain with radiation down the lower extremities bilaterally. He 

listed his impression as lumbar disc displacement, and noted that he would like to schedule a 

bilateral L4-5 and L5-S1 nerve root injection. 

At a hearing held on December 18, 2015, appellant noted that she was then working as a 

community health nurse coordinator with the employing establishment. She contended that she 

was not cured from her injury, and she noted that she continued to have low back pain, spasm, 

pain radiating to both sides of her hip all the way down both legs to the calves of her side, worse 

on the left side of the leg all the way down to the ankles. 

By decision dated February 16, 2016, the hearing representative affirmed the 

December 9, 2014 termination decision, finding that the weight of the medical evidence rested 

with the second opinion physician, Dr. Ghanma. 

LEGAL PRECEDENT 

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

 The right to 

medical benefits for an accepted condition is not limited to the period of entitlement to 

 3 Mohamed Yunis, 42 ECAB 325, 334 (1991); see also J.P., Docket No. 13-1049 (issued August 16, 2013). 
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compensation for disability.4 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer has residuals of an employment-related condition which 

requires further medical treatment.5

ANALYSIS 

OWCP accepted appellant’s claim for sprain of the lumbar region and thoracic regions of 

the back, contusions of the back, left hip and left thigh, and L5-S1 herniated disc. The hearing 

representative affirmed the termination of appellant’s medical benefits and wage-loss 

compensation, effective December 13, 2014. In reaching this conclusion, OWCP determined 

that the weight of the medical evidence was represented by the opinion of the second opinion 

physician, Dr. Ghanma. 

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

and medical benefits. Dr. Ghanma conducted a physical examination and reviewed appellant’s 

record, including the medical evidence. He noted that appellant’s March 2, 2012 MRI scan 

report, revealed multiple abnormalities, including the left central disc herniation at L5-S1. 

Dr. Ghanma opined that appellant no longer had any residuals of the accepted conditions, based 

upon his physical examination of appellant wherein he related that appellant gave a reduced 

effort when asked to move, and that her examination was characterized by abnormal illness 

behavior and symptom magnification. 

The Board notes that prior to the termination of appellant’s compensation benefits but 

after Dr. Ghanma had examined appellant, the treating physicians, Dr. Hochman and Dr. Yokiel, 

both recommended that appellant undergo a new MRI scan in 2014 to determine the status of her 

accepted conditions. Based upon their recommendation, appellant underwent a November 1, 

2014 MRI scan of the lumbar spine, which was interpreted by Dr. Arnson as revealing disc 

herniations from T12 through L5-S1. OWCP however did not provide the updated MRI scan 

results to Dr. Ghanma for review prior to termination of compensation benefits. Further, new 

medical reports had been received by OWCP from Drs. Hochman and Yokiel, as well as a 

functional capacity evaluation. Their reports were also not provided to Dr. Ghanma for his 

review prior to the termination. Once OWCP undertakes development of the record, it must do a 

complete job in procuring medical evidence that will resolve the relevant issues in the case.6

 

Dr. Ghanma’s opinion regarding the status of appellant’s accepted conditions was, therefore, not 

based on the entire evidence of record and cannot serve as the weight of the medical evidence.7

The Board finds that Dr. Ghanma’s second opinion was insufficient to establish that all 

residuals from the accepted February 18, 2012 employment injury had resolved.8

 4 See T.P., 58 ECAB 524 (2007). 

5 See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005). 

6 See R.M., Docket No. 16-0147 (issued June 17, 2016). 

7 See M.S., Docket No. 08-99 (issued May 13, 2008); James R. Taylor, 56 ECAB 537 (2005). 

8 See V.A., Docket No. 15-1073 (issued November 25, 2015). 
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CONCLUSION 

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

wage-loss compensation and medical benefits effective December 13, 2014. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated February 16, 2016 is reversed. 

Issued: November 9, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board