United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Newberg, OR, Employer 

__________________________________________ 

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Docket No. 17-0543 

Issued: August 1, 2017 

Appearances: Case Submitted on the Record

Lonnie Boylan, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 10, 2017 appellant, through her representative, filed a timely appeal from a 

July 22, 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 over the merits of this case. 

ISSUE 

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

compensation and medical benefits effective July 24, 2016. 

 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

FACTUAL HISTORY 

On July 17, 2012 appellant, then a 51-year-old rural route carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on July 12, 2012, she sustained a traumatic head injury as a 

result of a vehicular accident. She stopped work on July 13, 2012. 

By decision dated August 23, 2012, OWCP accepted her claim for open wound of the 

scalp, right ankle sprain, closed injury of the liver and post-concussion syndrome. Appellant 

received wage-loss compensation and medical benefits on the supplemental rolls as of 

August 27, 2012 and on the periodic rolls as of May 5, 2013. 

In a report dated August 21, 2014, Dr. Danielle Erb, Board-certified in physical medicine 

and rehabilitation, examined appellant and diagnosed her with a mild traumatic brain injury with 

symptoms of impaired balance, headaches, cognitive difficulty, convergence insufficiency, 

exophoria, and deficiencies of pursuit eye movements. She also diagnosed appellant with an 

aggravation of her left shoulder condition. Dr. Erb noted that appellant reported that she had 

attempted to return to work, but that casing mail above or below her eye level was very 

bothersome and caused her to become ill. Appellant reported double vision, vomiting, and 

headaches. Dr. Erb opined that appellant was unable to work at that time. 

In a report from the employing establishment’s Office of the Inspector General (OIG), 

covering the period April 1 through September 30, 2014, an investigator noted that appellant was 

observed driving on multiple occasions up to 12 miles; walking, bending, grocery shopping, and 

carrying grocery bags. 

By letter dated September 12, 2014, OWCP referred appellant for a second opinion 

examination to determine whether she continued to have residuals of her accepted conditions. In 

a report dated October 22, 2014, Dr. Lewis Almaraz, Board-certified in neurology, OWCP’s 

second opinion physician, reviewed appellant’s medical records and history of injury and 

performed an examination. He opined that appellant was not suffering any residuals of the 

July 12, 2012 incident, and stated his belief that the accepted conditions resolved within three to 

six months. Dr. Almaraz noted that appellant’s subjective complaints were not consistent with 

objective findings, noting no evidence of intracranial bleeding or focal brain lesion. He found no 

physical limitations and opined that appellant was capable of returning to gainful employment 

without restrictions. In response to OWCP’s query regarding whether the surveillance of 

appellant’s activities was consistent with her presentation and activity level during examination, 

Dr. Almaraz noted that appellant had claimed she was unable to drive more than two miles. He 

noted that given the surveillance video, there was a high likelihood that she was malingering and 

that there may be other psychobiological factors playing a role. Dr. Almaraz recommended a 

psychiatric evaluation. He reviewed the job description of a rural route carrier and concluded 

that she was capable of performing the duties as described.

On October 21, 2014 OWCP proposed to terminate appellant’s compensation based on 

the report of Dr. Almaraz. It found that the weight of the medical evidence rested with the report 

of Dr. Almaraz. 
3

On November 1, 2014 appellant requested a copy of her entire case record, including the 

investigative report and digital versatile disc (DVD). She submitted a November 7, 2014 report 

from Dr. Erb wherein he maintained that appellant had sustained a brain injury on July 12, 2012, 

and that her ability to process visual information still suffered from the effects of this injury, 

leading to frequent nausea. He noted that appellant’s job required a great deal of visual 

processing while casing mail, in addition to driving. Dr. Erb explained that appellant had limited 

her driving in her local neighborhood, although there was one incident involving picking up a car 

from an auto repair shop with her husband that required her to drive for a longer distance in order 

to return the vehicle. Dr. Erb further noted that Dr. Almaraz had not included an evaluation of 

appellant’s fundi with an ophthalmoscope, which would be a typical part of a neurological 

examination. He noted that he had released appellant to work on July 22, 2014, but that 

difficulties in appellant’s visual processing system prevented her from working in her full-duty 

position. Dr. Erb opined that appellant had residual difficulties from the incident of July 12, 

2012 and that these difficulties precluded her from work as a rural route carrier. 

OWCP provided appellant with the requested items on November 24, 2014. 

On November 25, 2014 OWCP referred appellant to an impartial medical examiner to 

resolve the conflict of medical opinion between Drs. Erb and Almaraz. In a referee report dated 

March 10, 2015, Dr. Andrew Rose-Innes, Board-certified in neurology, reviewed appellant’s 

history of injury and medical records, performed a physical examination, and diagnosed 

appellant with medically stationary post-concussive syndrome, associated with persistent 

subjective complaints. Dr. Rose-Innes reported a normal physical examination without objective 

neurological conditions, although appellant did have a number of subjective complaints. He 

noted that no further treatment was recommended for post-concussive syndrome. Dr. Rose-Innes 

noted that appellant should be able to return to work for more than two hours per day, but that he 

could not endorse her return to driving if she did not feel capable or secure. He suggested a 

driving safety assessment be obtained. OWCP had asked Dr. Rose-Innes to review the 

surveillance video of appellant from the OIG investigation, to which he replied, “I was not in 

receipt of this DVD -- my understanding is that it shows [appellant] driving and going into and 

out of stores -- this is quite within keeping with my essentially normal neurological examination 

today.” 

In an addendum report dated August 20, 2015, Dr. Rose-Innes noted that he had reviewed 

the video of appellant’s activities between April and September 2014, which he described as 

showing appellant driving on urban streets, entering and exiting the vehicle, and loading 

groceries into the back seat. He noted that reviewing video of this type did not constitute an 

objective evaluation of driving safety, and acknowledged that it was beyond the scope of his 

medical assessment to draw a more definitive conclusion. Dr. Rose-Innes again recommended a 

formal driving safety evaluation. 

In a memorandum to the file dated September 10, 2015, OWCP found that the report 

from the impartial medical examiner, Dr. Rose-Innes, was of diminished probative value. It 

found that he had reported, before watching the surveillance video, that her behavior was in 

keeping with his normal neurological examination; yet after watching the video, concluded that 

he could not endorse her driving if she felt capable or secure. OWCP characterized this as a 
4

contradiction and found that Dr. Rose-Innes had not provided any medical rationale regarding 

restrictions on driving. 

On September 23, 2015 OWCP referred appellant to a second impartial medical examiner 

to resolve the conflict of medical opinion between Drs. Erb and Almaraz. In a report dated 

December 1, 2015, Dr. Joseph J. Robin, Board-certified in neurology, reviewed appellant’s 

history of injury and medical records, performed a physical examination, and diagnosed her with 

a laceration of the scalp, concussion, and post-concussion symptoms of headache and dizziness, 

all of which were related to the incident of July 12, 2012. Dr. Robin found that appellant had no 

objective neurological findings related to her complaints, but that she continued to complain of 

headaches and dizziness. He noted that it was beyond the scope of his evaluation to determine 

whether appellant could work as a rural carrier. Dr. Robin related that “While she appears to be 

normal in her ability to drive a car, I do not know what it entails to be a rural carrier and have 

previously commented that she have a formal driving safety evaluation as to whether she could 

perform this job.” He also noted that it was recommended that appellant have a psychiatric 

evaluation to see if there are psychological factors that occurred as a result of the accident on 

July 12, 2012 that are still playing a role in her inability to return to work as a rural mail carrier. 

 Dr. Robin explained that while there was no neurological objective evidence that 

appellant would be restricted from returning to work, she subjectively felt that she could not 

return to work as a mail carrier. He opined that appellant should be able to return to some form 

of continuous gainful employment, in particular at a sedentary level. Dr. Robin concurred with 

prior examiners that he was unable to endorse her returning to driving without a driving 

assessment. He also recommended a psychiatric evaluation. 

 On May 26, 2016 OWCP again proposed to terminate appellant’s compensation. It found 

that Dr. Robin had opined that her residuals had resolved and that there was no objective 

neurologic reason to restrict her return to work. OWCP noted, “While Dr. Robin states that he is 

unable to endorse your returning to driving and a driving assessment might be considered, as 

well as a psychiatric evaluation may be reasonable to try to determine if there are any underlying 

psychological issues that are preventing you from returning to work, this opinion is of 

diminished probative value because they are outside the scope of this examiners medical 

practice.” 

 By decision dated July 22, 2016, OWCP finalized the proposed termination of appellant’s 

medical and wage-loss compensation, effective July 24, 2016. 

LEGAL PRECEDENT 

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

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

4 Mary A. Lowe, 52 ECAB 223, 224 (2001). 
5

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.5

 The implementing regulations provide 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.6

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 be supported by medical 

rationale.7

 Medical rationale is a medically sound explanation for the opinion offered.8

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.9

ANALYSIS 

OWCP accepted that on July 17, 2012, appellant sustained an open wound of the scalp, 

right ankle sprain, closed injury of the liver, and post-concussion syndrome in the performance 

of duty. Effective July 22, 2016, it terminated appellant’s medical and wage-loss compensation 

based on the referee medical report of Dr. Robin. 

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

wage-loss compensation benefits because the medical evidence of record does not establish that 

she no longer had residuals causing disability from work as a result of her July 12, 2012 

employment injury. The conflict of medical opinion evidence remains unresolved. 

OWCP referred appellant to Dr. Robin to resolve the conflict in medical opinion evidence 

between appellant’s treating physician, Dr. Erb, and OWCP’s second opinion physician, 

Dr. Almaraz, as to whether appellant had residuals of the accepted employment injury which 

caused disability. As previously noted a well-rationalized report from an impartial medical 

examiner that is based on a proper factual and medical background is entitled to special weight.10 

In the case, however, OWCP incorrectly characterized Dr. Robin’s report as opining that 

appellant suffered no residuals and could return to her date-of-injury position, despite the fact 

 5

 5 U.S.C. § 8123(a). 

6

 20 C.F.R. § 10.321. 

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

8 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). 

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

10 Id. 
6

that Dr. Robin specifically opined that he could not endorse appellant’s return to driving without 

a driving evaluation. Given that the position of rural carrier involves driving, Dr. Robin could 

not endorse appellant’s return to her date-of-injury position. A report from an impartial medical 

examiner must be sufficient to resolve the conflict of medical opinion evidence.11 Dr. Robin’s 

report was insufficient to establish that appellant no longer had residuals of the accepted injury 

which caused disability. 

Dr. Robin’s referee report also contained the statement “As to whether [appellant] could 

work as a rural carrier is still beyond the scope of my evaluation. While she appears to be 

normal in her ability to drive a car, I do not know what it entails to be a rural carrier.” Due to 

this statement, Dr. Robin’s report is not well rationalized as he lacks sufficient knowledge of the 

job requirements of a rural carrier in relation to driving. Because his report is not well 

rationalized, it is not entitled to the special weight normally afforded to the reports of referee 

examiners.12

OWCP discounted Dr. Robin’s report regarding the necessity of a psychiatric evaluation, 

by finding that Dr. Robin’s opinion is of diminished probative value because it was outside the 

scope of his medical practice. When a physician recommends that further medical development 

is warranted by referring a patient to another physician, it is typically because that physician 

lacks the requisite expertise or equipment to perform the medical development on his or her own. 

OWCP improperly discounted the parts of Dr. Robin’s report that did not resolve the conflict of 

medical evidence,13 while accepting the elements that would support termination.14

OWCP did not meet its burden of proof to terminate appellant’s medical and wage-loss 

benefits, based upon the report of Dr. Robin.15 The Board, therefore, will reverse OWCP’s 

termination and will remand the case for proper reinstatement of compensation benefits. 

 11 See A.B., Docket No. 15-1947 (issued March 14, 2016). 

12 Supra note 8. 

13 Id. 

14 The Board further notes that OWCP’s earlier action to set aside the referee report of Dr. Rose-Innes was based 

on a similarly spurious rationale. OWCP claimed that Dr. Rose-Innes’ report was of diminished probative value 

because he contradicted his earlier report in an addendum report. However, a close reading of the report shows that 

there was no contradiction. In Dr. Rose-Innes’ March 10, 2015 report, he noted that while he had not seen the 

surveillance video, the description of her behavior was consistent with his normal findings on examination. He also 

noted in this report that he could not endorse appellant’s return to driving if she did not feel capable or secure. In 

Dr. Rose-Innes’ August 20, 2015 addendum report, he again noted that he could not endorse appellant’s return to 

driving. Stating that the video may be consistent with appellant’s ability to drive is consistent with a statement that 

he could not endorse appellant’s return to driving if she did not feel capable or secure -- there is no contradiction 

between those two statements. Moreover, OWCP later accepted the report of Dr. Robin which contained the same 

language regarding appellant’s ability to drive and recommendation of a driving evaluation, but chose in its May 26, 

2016 notice of proposed termination to disregard that part of Dr. Robin’s report. 

15 See K.B., Docket No. 16-1146 (issued March 21, 2017). 
7

CONCLUSION 

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

appellant’s wage-loss compensation and medical benefits for her accepted injuries, effective 

July 24, 2016. 

ORDER 

IT IS HEREBY ORDERED THAT the July 22, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed. 

Issued: August 1, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board