United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Coppell, TX, Employer 

__________________________________________ 

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Docket No. 15-446 

Issued: April 27, 2015 

Appearances: Case Submitted on the Record

Lonnie Boylan, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 19, 2014 appellant, through counsel, filed a timely appeal from a July 17, 

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 properly terminated appellant’s wage-loss compensation and 

medical benefits effective July 27, 2014 as he no longer had any residuals or disability causally 

related to his accepted employment-related injury. 

FACTUAL HISTORY 

On February 1, 1995 appellant, then a 43-year-old maintenance mechanic, filed an 

occupational disease claim for a chronic back strain and lumbar disc disease. He first became 

 1

 5 U.S.C. § 8101 et seq. 
2

aware of his condition on September 21, 1994. On September 26, 1995 OWCP accepted the 

claim for temporary aggravation of preexisting lumbar sprain. The record reflects appellant has 

preexisting nonwork-related conditions of arthritis and degenerative joint/disc disease, which 

was a service-connected disability, and underwent an L5-S1 discectorny in July 1989. Appellant 

stopped work on January 30, 1995 and has not returned. OWCP retained him on the periodic 

compensation rolls. 

The record does not have any additional medical evidence until 2003. In an August 11, 

2003 report, Dr. Wendell D. Daniels, a Board-certified internist, found that appellant had reached 

maximum medical improvement (MMI) and could work eight hours a day with restrictions. On 

September 24, 2003 appellant rejected a September 22, 2003 limited-duty job offer. OWCP took 

no further action. 

In a May 9, 2011 report, Dr. Charles D. Mitchell, a Board-certified orthopedic surgeon 

and OWCP referral physician, diagnosed appellant with residuals of lumbar disc disease, which 

had been aggravated in 1995. He did not find any further need for treatment but that appellant 

could not return to his work as a mechanic. On a Form OWCP-5c, work capacity evaluation, 

Dr. Mitchell found appellant capable of working six hours a day with permanent restrictions. A 

comprehensive reconditioning program was recommended. 

In an October 24, 2012 letter, OWCP requested a comprehensive medical report 

concerning appellant’s accepted work-related condition. This request, however, was returned to 

OWCP as undeliverable. 

On February 15, 2013 OWCP referred appellant, along with a statement of accepted 

facts, the medical record, and a list of questions, to Dr. John A. Sklar, a Board-certified 

physiatrist. In an April 4, 2013 report, Dr. Sklar noted the history of injury and appellant’s prior 

back surgery along with a review of the records. He also presented findings on examination. 

Dr. Sklar opined that the accepted work injury did not affect appellant’s preexisting back 

problem. He diagnosed lumbar sprain/strain, which resolved within two to three months from 

the date of injury without disabling residuals. Dr. Sklar opined that appellant could work 

without any restrictions due to his work injury and filled out a work capacity evaluation 

accordingly. He recommended appellant start part-time work for one month and then full duty as 

he has not worked in over 15 years. 

OWCP determined there was a conflict in medical evidence with regard to appellant’s 

work capabilities and referred appellant, along with a statement of accepted facts, the medical 

record and a list of questions, to Dr. David D. Sanderson, a Board-certified orthopedic surgeon, 

to resolve the conflict. In a June 19, 2013 report, Dr. Sanderson noted the history of injury, his 

review of the medical records, which were noted as being sparse, and findings on examination. 

He found appellant had absent Achilles’ reflex on the left with three centimeter atrophy of his 

left calf and a two centimeter atrophy of his left thigh compared to the right, which was most 

likely related to the S1 compressed nerve that he had in the military. Dr. Sanderson opined that 

there is no injury-related disability or residuals from the accepted work-related condition of 

September 21, 1994. He explained that the lumbosacral strain had temporarily aggravated 

appellant’s preexisting condition and should have resolved in three to six months. Dr. Sanderson 

noted that appellant had not worked for 20 years and had comorbid medical problems, but found 
3

that he could gradually be worked into a full-time position. Appellant had a functional capacity 

evaluation on July 30, 2013 and Dr. Sanderson opined, in an August 2, 2013 work capacity 

evaluation, that appellant had reached maximum medical improvement and, while he was not 

able to perform his usual job, he could gradually be worked into a full-time position with 

restrictions. The restrictions, including the gradual increase in work hours, were due only to 

appellant’s nonwork-related conditions. 

By notice dated June 10, 2014, OWCP proposed to terminate medical benefits and 

compensation for wage loss based on the weight of medical evidence of Dr. Sanderson, who 

found no residuals or disability causally related to the September 21, 1994 work injury. 

Appellant was provided 30 days to submit additional evidence or argument. No additional 

evidence was received from him. 

By decision dated July 17, 2014, OWCP terminated appellant’s claim for medical and 

wage-loss benefits effective July 27, 2014 as the weight of the medical evidence continued to 

rest with Dr. Sanderson’s report. 

LEGAL PRECEDENT 

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

of compensation. After it has been determined that an employee has disability causally related to 

his or her employment, it may not terminate compensation without establishing that the disability 

had ceased or that it was no longer related to the employment.2 OWCP’s burden of proof 

includes the necessity of furnishing rationalized medical opinion evidence based on a proper 

factual and medical background.3 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 a claimant no longer has residuals of an 

employment-related condition that requires further medical treatment.4 

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.5 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.6

 In situations where there exist opposing medical reports of virtually 

equal weight and rationale and the case is referred to an impartial medical specialist for the 

 2 Jason C. Armstrong, 40 ECAB 907 (1989). 

3 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

4 Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997). 

5

 5 U.S.C. § 8123(a). 

6

 20 C.F.R. § 10.321. 
4

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.7

 

ANALYSIS 

OWCP accepted that on September 21, 1994 appellant sustained temporary aggravation 

of preexisting lumbar sprain. Appellant stopped work on January 30, 1995 and received 

compensation benefits. 

OWCP determined that a conflict in medical opinion existed on work capacity related to 

the September 21, 1994 temporary aggravation of preexisting lumbar sprain. The last medical 

report from appellant’s treating physician, Dr. Daniels, dated August 11, 2003; however, found 

that appellant could work eight hours a day with restrictions. On March 27, 2013 Dr. Sklar, an 

OWCP referral physician, opined that appellant’s lumbar sprain/strain, had resolved within two 

to three months from the date of injury without disabling residuals and that he could work 

without any restrictions due to his work injury. His recommendation that appellant start parttime work for one month and then full duty was due to the fact that appellant had not worked in 

more than 15 years. This medical evidence does not represent a conflict in medical opinion, but 

an agreement that appellant’s work condition had resolved with no disabling residuals and he 

was capable of working full time without restrictions.8

 Thus, as no conflict in medical opinion 

existed, OWCP’s referral to Dr. Sanderson was that of a second opinion examiner as opposed to 

an impartial medical specialist. 

Dr. Sanderson reviewed the complete medical record, including a July 30, 2013 

functional capacity evaluation, the statement of accepted facts, and performed a comprehensive 

examination of appellant on June 19, 2013. He opined that there was no disability nor residuals 

from the accepted work-related condition of September 21, 1994 as the lumbosacral strain had 

temporarily aggravated appellant’s preexisting condition and should have resolved in three to six 

months. Dr. Sanderson noted that appellant had not worked for 20 years and had comorbid 

medical problems, but opined that he could gradually be returned to a full-time position with 

restrictions due to his nonwork-related conditions. OWCP issued a preliminary notice of 

termination on June 10, 2014 and then finalized the termination of appellant’s wage-loss and 

medical benefits effective July 27, 2014 based on Dr. Sanderson’s June 19, 2013 report. 

The Board finds that Dr. Sanderson’s opinion is sufficient to establish that the accepted 

temporary aggravation of preexisting lumbar sprain had resolved without residuals or disability 

as of July 27, 2014. Dr. Sanderson’s report was based on the complete medical record and a 

statement of accepted facts. He also performed a thorough clinical examination. Dr. Sanderson 

presented detailed rationale explaining why any work restrictions would be related to appellant’s 

nonwork-related conditions. The Board finds that his report is sufficiently rationalized to 

represent the weight of the medical evidence in this case.9

 The Board notes there is no 

 7 Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001). 

8 See W.C., Docket No. 13-705 (issued September 4, 2013). 

9 See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957). 
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contemporaneous medical evidence from an attending physician that discussed a continuing 

employment-related disability. Prior to the termination, the last report from an attending 

physician, Dr. Daniels, was dated August 11, 2003 and noted that appellant had reached 

maximum medical improvement and could work eight hours a day with restrictions. 

On appeal, counsel asserts several arguments pertaining to Dr. Sanderson’s status as 

impartial examiner and that his report should not be given special weight as an impartial medical 

specialist. As no conflict in medical opinion existed at the time of OWCP’s referral to 

Dr. Sanderson, his status is considered that of a second opinion physician.10 Counsel’s 

remaining arguments pertained to appellant’s preexisting medical conditions and 

Dr. Sanderson’s answers to OWCP’s questions were insufficient. The Board found 

Dr. Sanderson’s report to be based on the complete medical record and a statement of accepted 

facts, and provided sound rationale for his findings. 

The Board finds that OWCP met its burden of proof to terminate compensation for 

wage-loss and medical benefits effective July 27, 2014. 

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

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 its burden of proof to terminate appellant’s 

compensation benefits effective July 27, 2014 as he no longer had any residuals or disability 

causally related to his accepted September 21, 1994 employment-related injury. 

 10 See Pierre W. Peterson, 39 ECAB 955 (1988). 
6

ORDER 

IT IS HEREBY ORDERED THAT the July 17, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed as modified. 

Issued: April 27, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board