United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chattanooga, TN, Employer 

__________________________________________ 

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Docket No. 15-1041 

Issued: January 12, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 13, 2015 appellant filed a timely appeal from an April 7, 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.2

ISSUE 

The issue is whether OWCP met its burden of proof to terminate medical benefits for a 

July 22, 2011 employment injury. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 

20 C.F.R. § 501.5(b). By order dated May 28, 2015, the Board denied the request, finding that appellant’s 

arguments on appeal could adequately be addressed based on the case record. Order Denying Request for Oral 

Argument, Docket No. 15-1041 (issued May 28, 2015). 
2

On appeal appellant asserts that the information provided by OWCP to the referee 

physician was incomplete because the statement of accepted facts did not include all accepted 

conditions and did not describe his proper job title. He further alleges that the opinion of the 

referee physician was not medically rationalized, and the weight of the medical opinion should 

rest with the attending orthopedic surgeon. 

FACTUAL HISTORY 

This case has previously been before the Board.3 In an August 26, 2014 decision, the 

Board found that OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation on July 16, 2012. The Board found that the weight of the medical evidence rested 

with the second opinion evaluation of Dr. Carl S. Carlson, Jr., an orthopedic surgeon. In reports 

dated March 29 and May 10, 2012, Dr. Carlson noted that appellant demonstrated pain and 

histrionic behaviors. He advised that appellant had an accessory navicular but did not think it 

was problematic, explaining that it was a separate bone, usually present from birth. Dr. Carlson 

indicated that the July 22, 2011 ankle sprain should have resolved in 8 to 12 weeks and, based on 

his review of the diagnostic studies, appellant never had a right calcaneous fracture. He 

concluded that appellant’s subjective complaints outweighed the objective findings and indicated 

that appellant had no restrictions and that any current symptoms were related to recent activity, 

not the July 22, 2011 employment injury.4 The Board further found a conflict in medical 

evidence had been created regarding OWCP’s termination of medical benefits.5 The law and 

facts of the previous Board decision are incorporated herein by reference. 

Shortly, after appellant returned to work in March 2013, he reinjured his right ankle on 

April 9, 2013 when he stepped from a postal vehicle. The claim, adjudicated by OWCP under 

file number xxxxxx308, was accepted for right ankle sprain, right tibialis tendinitis, right 

exostosis, right bunion, resolving right idiopathic scoliosis, and acquired right equinovarus 

deformity. Under that file number appellant received wage-loss compensation and was placed 

on the periodic compensation rolls, where he remains.6

In response to the Board’s August 26, 2014 decision, in which it found a conflict in 

medical evidence as to termination of medical benefits, in October 2014 OWCP referred 

 3

 In the instant case, adjudicated by OWCP under file number xxxxxx460, on July 22, 2011 appellant, then a 42-

year-old transitional city carrier, sustained an employment-related right ankle sprain and closed fracture of the right 

calcaneus. He stopped work that day and received continuation of pay and wage-loss compensation. The 

employing establishment dismissed appellant for cause, effective March 17, 2012. By decision dated July 16, 2012, 

OWCP terminated his wage-loss compensation and medical benefits. On March 4, 2013 an OWCP hearing 

representative affirmed the July 16, 2012 OWCP decision. Appellant returned to work in March 2013. In a merit 

decision dated July 24, 2013, OWCP denied modification of the prior decisions. 

4

 Appellant’s attending physician, Dr. W. Carl Dyer, a Board-certified orthopedic surgeon, was consistent in his 

opinion that appellant’s continued right ankle problems were related to the July 22, 2011 employment injury. 

5

 Docket No. 14-30 (issued August 26, 2014). 

6

 File numbers xxxxxx308 and xxxxxx460 were doubled, with file number xxxxxx460 as the master file. Under 

file number xxxxxx308, in a July 20, 2015 decision, the Board found that OWCP did not abuse its discretion in 

denying appellant’s request for travel reimbursement. Docket No. 14-1841 (issued July 20, 2015). 
3

appellant to Dr. Neil Spitalny, a Board-certified orthopedic surgeon, to determine whether 

appellant had any residuals from his accepted conditions. The appointment was scheduled for 

December 4, 2014 and rescheduled for December 11, 2014. Dr. Spitalny was provided the case 

record, including a statement of accepted facts, a set of questions, and a statement of accepted 

facts regarding the July 22, 2011 employment injury. 

In correspondence dated October 9, 2014, Dr. Daniel L. Kingloff, an attending Boardcertified orthopedic surgeon, described findings in his previous reports dated March 13 and 

December 28, 2012 and March 19, 2013 regarding the July 22, 2011 right ankle injury. He then 

described appellant’s condition following the April 9, 2013 injury described above. Dr. Kingloff 

opined that appellant had never recovered from the July 22, 2011 injury and that the April 9, 

2013 injury was just an aggravation of his initial injury. He opined that, because appellant’s 

benefits were terminated in June 2012, treatment for the July 22, 2011 injury was delayed. 

Dr. Kingloff further opined that appellant could be suffering from a regional pain syndrome as a 

result of the July 22, 2011 employment injury. He advised that appellant needed to be seen by a 

pain specialist, noting that he initially made this recommendation in March 2012, and that 

appellant’s impairment began on July 22, 2011. On November 11, 2014 Dr. Kingloff diagnosed 

ankle pain, accessory navicular of bone of foot, injury and disorder of left knee, and injury of left 

hip region. He advised that the problems appellant was having with his knee and hip were due to 

overstress during his period of injury and recuperation regarding the right foot and ankle and 

opined that he could not work. 

On November 11, 2014 Dr. Paul V. Spiegl, an attending Board-certified orthopedic 

surgeon, noted seeing appellant in follow-up for the April 9, 2013 injury. On December 4, 2014 

he advised that appellant was recovering from March 11, 2014 right foot surgery.7

 Dr. Spiegl 

discussed appellant’s back, hip, and knee complaints, noting that he did not assess those areas. 

He advised that appellant had not reached maximum medical improvement, could not return to 

work as a city carrier, but could perform sedentary duties, and was a candidate for vocational 

rehabilitation. 

Dr. Spitalny, who was selected to resolve the conflict in medical evidence regarding 

whether appellant had residuals of the July 22, 2011 right ankle injury necessitating further 

medical treatment, submitted a report dated December 11, 2014. He noted his review of 

extensive medical records and appellant’s current complaints that he had to use a cane, was 

unable to climb stairs, had decreased sensitivity over the toes, and that his right foot was swollen. 

Right lower extremity examination demonstrated mild edema, calf atrophy, diffuse tenderness, 

and diminished ankle range of motion. Examination of the left foot demonstrated pes planus 

(flat foot) with mild edema. Dr. Spitalny disagreed with the decision to perform surgery on 

appellant’s right ankle. He noted that appellant had an ankle sprain on July 22, 2011 and advised 

that his tendon dysfunction and accessory navicular were congenital abnormalities, and that 

posterial tibial tendinitis was a normal progression and caused his flat foot. Dr. Spitalny advised 

that appellant’s knee, lower back, and hip problems were not attributable to either the 2011 or 

2013 injuries. In a supplemental report dated March 2, 2015, he opined that appellant never had 

 7

 Under the April 2013 injury, file number xxxxxx308, on March 11, 2014 Dr. Spiegl performed right 

capsulotomy and calcaneal osteotomy. The surgery was approved by an OWCP medical adviser, and authorized by 

OWCP. 
4

a calcaneal fracture and had no residuals due to the July 22, 2011 ankle sprain, noting that he 

sustained a subsequent ankle injury. 

By decision dated April 7, 2015, OWCP found that the weight of the medical evidence 

rested with Dr. Spitalny’s opinion that appellant had no residuals of the July 22, 2011 

employment injury and terminated his entitlement to medical benefits on July 16, 2012 due to the 

July 22, 2011 employment injury. 

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. 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. Furthermore, the right to medical benefits for an 

accepted condition is not limited to the period of entitlement for disability. 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.8

Section 8123(a) of FECA 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.9 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 examination, and 

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

connection with the case.10 When there exist 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 

upon a proper factual background, must be given special weight.11 

ANALYSIS 

The Board finds that OWCP met its burden of proof to terminate appellant’s medical 

benefits on March 12, 2015, the date Dr. Spitalny, the impartial examiner, advised that appellant 

has no residuals of the July 22, 2011 right ankle injury. 

In an August 26, 2014 decision, the Board determined that a conflict in medical evidence 

had been created between Dr. Dyer, an attending orthopedic surgeon, and Dr. Carlson, an OWCP 

referral orthopedic surgeon, regarding whether appellant had continuing residuals of the July 22, 

 8 Fred Simpson, 53 ECAB 768 (2002). 

9

 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

10 20 C.F.R. § 10.321. 

11 V.G., 59 ECAB 635 (2008). 
5

2011 right ankle injury.12 OWCP properly referred him to Dr. Spitalny for an impartial 

evaluation. 

In a comprehensive report dated December 11, 2014, Dr. Spitalny noted his review of 

extensive medical records and appellant’s current complaints. He provided lower extremity 

examination findings and opined that appellant had an ankle sprain on July 22, 2011. 

Dr. Spitalny advised that appellant’s tendon dysfunction and accessory navicular were congenital 

abnormalities, and that posterial tibial tendinitis was a normal progression and the cause of 

appellant’s flat feet. On March 2, 2015 he opined that appellant had no residuals of the July 22, 

2011 right ankle injury and noted that he had sustained a subsequent ankle injury that occurred 

on April 9, 2013, for which he had surgery on March 11, 2014.13

As Dr. Spitalny provided a well-reasoned opinion that appellant had no continuing 

residuals of the July 22, 2011 injury, his opinion is entitled to the special weight accorded an 

impartial examiner and constitutes the weight of the medical evidence regarding whether 

appellant had a continuing need for medical treatment due to the July 22, 2011 right ankle injury, 

as of the date of his report on July 2, 2015.14 The Board, however, finds that OWCP did not 

meet its burden of proof to terminate appellant’s medical benefits on July 16, 2012 because there 

is no medical evidence that specifically addresses whether his residuals had ceased prior to 

Dr. Spitalny’s March 2, 2015 report. Appellant, therefore, would be entitled to medical benefits 

for the July 22, 2011 injury up to April 9, 2013, the date OWCP accepted that he reinjured his 

right ankle and resumed payment of FECA compensation and medical benefits under file number 

xxxxxx308. 

The medical evidence submitted by appellant is insufficient to outweigh Dr. Spitalny’s 

opinion. Dr. Kingloff discussed his medical reports dated March 13 and December 28, 2012 and 

March 19, 2013, which were previously reviewed by both OWCP and the Board in its 

August 26, 2014 decision.15 While he also advised that the April 9, 2013 injury was an 

aggravation of the July 22, 2011 injury, the evidence supports that the 2013 injury was a new 

injury that occurred when appellant stepped from his postal vehicle. Dr. Spiegl merely 

commented regarding his care and treatment of appellant following the April 9, 2013 

employment injury. 

As to appellant’s assertion on appeal regarding the statement of accepted facts, this claim 

is in regard to the July 22, 2011 employment injury only, adjudicated by OWCP under file 

number xxxxxx460. OWCP provided Dr. Spitalny the complete record including a correct 

statement of accepted facts regarding this claim. Dr. Spitalny thoroughly reviewed the entire 

record. There is no evidence of OWCP error. 

 12 Supra note 5. 

13 Supra notes 6 and 7. 

14 V.G., supra note 11. 

15 Supra note 5. 
6

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that OWCP met is burden of proof to terminate appellant’s medical 

benefits based on Dr. Spitalny’s opinion on March 12, 2015 that appellant had no residuals due 

to the July 22, 2011 right ankle injury. Appellant, however, would be entitled to medical 

benefits from July 16, 2012, the date his medical benefits were previously terminated, to April 9, 

2013, the date his wage-loss compensation and medical benefits resumed, based on a second 

right ankle injury. 

ORDER 

IT IS HEREBY ORDERED THAT the April 7, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed as modified.16

Issued: January 12, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 16 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.