United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.K., Appellant 

 

and 

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

Hanover, MD, Employer 

__________________________________________ 

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Docket No. 16-0124 

Issued: March 18, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 October 26, 2015 appellant filed a timely appeal from a May 1, 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 3, 2015, as she was no longer disabled due to her accepted 

work-related conditions. 

FACTUAL HISTORY 

On September 5, 2013 appellant, then a 34-year-old federal air marshal, filed a traumatic 

injury claim (Form CA-1) for an injury sustained on July 12, 2013 while boarding an airplane in 

 1

 5 U.S.C. § 8101 et seq. 
2

the performance of her federal duties. She had a backpack on her back and was pulling her 

carry-on luggage when her foot caught onto the jet bridge. Appellant fell forward with all the 

weight on her back. She stopped work on September 6, 2013 and claimed compensation from 

that date forward. OWCP accepted the claim for degeneration of lumbar or lumbosacral 

intervertebral disc, displacement of lumbar intervertebral disc without myelopathy, and sciatica. 

Appellant received on the periodic rolls as of December 15, 2013. 

In a May 2, 2014 report, Dr. Peter Rinaldi, a Board-certified family practitioner, opined 

that appellant was unable to perform the essential functions of her position. In a work capacity 

evaluation, he provided work restrictions. Dr. Rinaldi advised that appellant had major 

psychological stress from her disability which affected her athletic lifestyle and ability to work. 

He also noted that she was on narcotic pain medication which impacted driving and cognition. 

In a June 5, 2014 report, Dr. Vivian M. Moise, a Board-certified physiatrist, noted 

appellant’s history of injury and advised that the negative electromyelogram (EMG) and negative 

magnetic resonance imaging (MRI) scan reports showed no significant nerve impingement or 

disc touching the left L5 nerve root, which was thought to be a possible etiologic factor for her 

ongoing pain. She indicated that even after biofeedback and left L5 nerve block treatment, she 

did not believe appellant would ever be able to safely return to her prior occupation. On July 31, 

2014 Dr. Moise opined that appellant was not a surgical candidate and would be at maximum 

medical improvement (MMI) after a trial of biofeedback and repeat left L5 injections. She 

opined that appellant would need a permanent lighter-duty job, without prolonged sitting. 

Dr. Moise indicated that appellant’s lumbar strain was unchanged. 

On May 12, 2014 OWCP referred appellant to Dr. Alfred I. Blue, a Board-certified 

orthopedic surgeon, for a second opinion examination to determine appellant’s disability status. 

Appellant underwent a functional capacity evaluation (FCE) on July 23, 2014 by 

J. Zachary Strandy, a physical therapist. In this report Mr. Strandy noted that, while appellant 

gave maximal effort, some symptom magnification appeared to be present. Appellant’s high 

pain reports were not consistently supported by objective signs of discomfort, decline in 

performance or acute signs of distress. Mr. Strandy related that appellant’s perception of her 

abilities was less than what she actually could do. He further explained that appellant presented 

with organic impairments secondary to her work injury, which resulted in functional limitations, 

ultimately affecting her work tolerance and abilities. Mr. Strandy found that appellant 

demonstrated full-time work ability, with restrictions. Restrictions were at the sedentary 

physical demand level, with limited walking, standing, and sitting. 

On August 14, 2014 OWCP received the second opinion report from Dr. Blue. Dr. Blue 

noted appellant’s history of injury and his review of the statement of accepted facts and the 

complete medical record. He provided examination findings (from a June 7, 2014 examination) 

and diagnosed mechanical low back pain with degenerative changes aggravated by a July 12, 

2013 work injury. Dr. Blue reported that appellant’s lower back had not returned to preinjury 

status. He noted that there was no evidence of EMG changes and thus no definite permanent 

weakness by EMG. Dr. Blue found appellant at MMI. He noted that appellant had undergone an 

FCE and that, based on that evaluation, it was his opinion that appellant did not have any work 

restrictions and should not require a work hardening program. Dr. Blue explained that there 
3

were no restrictions related to the work injury based on his examination and the fact that the FCE 

noted symptom magnification. 

In an August 18, 2014 report, Dr. Rinaldi advised that appellant was incapable of ever 

returning to her prior position as a federal air marshal. He advised that this opinion was 

supported by Dr. Moise and by the July 23, 2014 the FCE. 

OWCP determined that a conflict of medical opinion existed between appellant’s treating 

physicians, Dr. Rinaldi and Dr. Moise, and OWCP’s second opinion physician, Dr. Blue, 

regarding appellant’s ability to return to work. Therefore an impartial evaluation was arranged 

with Dr. Lowell Anderson, a Board-certified orthopedic surgeon, to resolve the conflict in 

medical opinion. 

In an October 30, 2014 report, Dr. Anderson reviewed appellant’s history of injury, the 

statement of accepted facts (SOAF), and appellant’s medical record. He thereafter set forth 

examination findings. Dr. Anderson determined that, based on his examination findings and 

inconsistency with her history and other sources of information, appellant did not have any 

work-related disability from the July 12, 2013 work injury. He indicated that her history and 

examination findings were inconsistent with subjective complaints. Dr. Anderson explained that 

nonphysiologic findings, including symptom magnification indicated that she was capable of 

performing her date-of-injury job. He indicated that appellant had no significant limitations that 

could be documented with objective findings or contemporaneous medical records. No imaging 

studies or diagnostic studies corroborated her subjective complaints. Dr. Anderson opined that 

MMI had been reached but, due to appellant’s conviction that she was disabled, it was unlikely 

that she would be able to return to full-time, full-duty work activity. He opined that appellant 

had no significant limiting factors that would preclude her from returning to unrestricted work 

activity. Dr. Anderson, therefore, opined that appellant could perform the physical activities 

described in the job analysis. 

On November 19, 2014 OWCP issued a notice of proposed termination of wage-loss 

compensation benefits to appellant. It credited that Dr. Anderson’s impartial medical opinion 

constituted the special weight of the medical evidence and established that appellant no longer 

was disabled from work due to her work injury. Appellant was provided 30 days in which to 

submit additional evidence or argument. 

OWCP received a December 15, 2014 narrative statement from appellant. Appellant 

expressed her concerns that both Dr. Anderson and Dr. Blue’s opinions, which found that she 

could return to work, conflicted with the FCE performed by Mr. Strandy. 

In a January 8, 2015 report, Dr. Rinaldi diagnosed subacute lumbar radiculopathy, 

herniated lumbar intervertebral disc, anxiety, depression and insomnia unspecified and indicated 

that appellant’s work capacity had not changed. 

By decision dated May 1, 2015, OWCP terminated appellant’s wage-loss compensation 

benefits, effective May 3, 2015, as the special weight of the medical evidence of file established 

that she was no longer disabled from work as a result of the July 12, 2013 work injury. 

Appellant’s claim remained open for medical treatment. 
4

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, OWCP may not terminate compensation without establishing that the 

disability had ceased or that it was no longer related to the employment.2 Its burden of proof 

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

factual and medical background.3

 

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.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 examination and 

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

connection with the case.5

 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 

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.6 

ANALYSIS 

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

benefits as her accepted conditions no longer caused disability.7

OWCP accepted appellant’s claim for aggravation of sciatica, aggravation of 

displacement of lumbar intervertebral disc without myelopathy, and aggravation of degeneration 

of lumbar or lumbosacral intervertebral disc. It terminated her wage-loss compensation benefits 

finding that the accepted employment-related conditions no longer caused disability based on the 

opinion of the impartial medical examiner, Dr. Anderson. It is OWCP that bears the burden to 

justify modification or termination of benefits.8

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

between appellant’s treating physicians, Drs. Rinaldi and Moise, who opined that she continued 

to be totally disabled, and the OWCP referral physician Dr. Blue, who found appellant was at 

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

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

4

 5 U.S.C. § 8123(a). 

5

 20 C.F.R. § 10.321. 

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

7 See H.P., Docket No. 15-0568 (issued September 14, 2015). 

8 See Curtis Hall, 45 ECAB 316 (1994); see also K.B., Docket No. 15-11 (issued April 7, 2015). 
5

MMI and had no restrictions related to the work injury. OWCP referred appellant to 

Dr. Anderson to resolve the conflict in medical opinion evidence, pursuant to 5 U.S.C. § 8123(a). 

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

compensation benefits based on the October 30, 2014 referee opinion of Dr. Anderson. 

Dr. Anderson reviewed the SOAF and the medical record, including the FCE, and set forth 

examination findings. He noted that appellant’s history and examination findings were 

inconsistent with subjective complaints and that nonphysiologic findings, symptom 

magnification, and alternate source of information supported that she was capable of performing 

her date-of-injury job. Dr. Anderson found no significant limitations that could be documented 

with objective findings or contemporaneous medical records and the imaging studies and 

diagnostic studies did not corroborate her subjective complaints. He opined that MMI had been 

reached but, due to appellant’s disability conviction, it was unlikely that she would be able to 

return to full-time, full-duty work activity. Dr. Anderson reiterated the significant discrepancy 

between the subjective complaints and objective findings on physical examination, imaging 

studies and electrodiagnostic studies, as well as observed activities. He opined that appellant had 

no significant limiting factors that would preclude her from returning to unrestricted work 

activity and opined that she could perform the physical activities described in the job analysis. 

The Board finds that Dr. Anderson’s report represents the special weight of the medical 

evidence and OWCP properly relied on his report in terminating appellant’s wage-loss 

compensation benefits. The Board finds that he had full knowledge of the relevant facts and 

evaluated the course of her condition, he is a specialist in the appropriate field, his opinion is 

based on proper factual and medical history, and his report contained a detailed summary of this 

history. Dr. Anderson addressed the medical records and made his own examination findings to 

reach a reasoned conclusion regarding appellant’s condition and to support her full-duty release.9

 

At the time appellant’s wage-loss compensation benefits were terminated, he found no basis on 

which to attribute continued disability to her accepted conditions. Dr. Anderson’s opinion as set 

forth in his October 30, 2014 report is found to be probative evidence and reliable. The Board 

finds that his opinion constitutes the special weight of the medical evidence and is sufficient to 

justify OWCP’s termination of wage-loss compensation benefits. 

In his January 8, 2015 report, Dr. Rinaldi opined that appellant’s work capacity had not 

changed. However, he offered no objective findings to support such a conclusion and diagnosed 

additional medical conditions, which have not been accepted by OWCP as causally related to the 

July 12, 2013 employment injury.10 Thus, Dr. Rinaldi’s report is of diminished probative value 

and is insufficient to overcome the special weight properly accorded to Dr. Anderson’s report as 

the impartial medical examiner, or to create a new conflict.11 Reports from a physician who was 

 9 See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy 

and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested and 

the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be 

given to each individual report). 

10 See T.M., Docket No. 08-975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as 

being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally 

related to the employment injury through the submission of rationalized medical evidence). 

11 See Dorothy Sidwell, 41 ECAB 857 (1990); J.M., Docket No. 11-1257 (issued January 18, 2012). 
6

on one side of a medical conflict that an impartial medical examiner resolved are generally 

insufficient to overcome the weight of the impartial medical examiner, or to create a new 

conflict.12 

On appeal, and before OWCP, appellant argues that her treating physicians and the FCE 

supports that she cannot return to her date-of-injury position. However, the Board finds that the 

special weight of the medical opinion evidence rests with the opinion of Dr. Anderson who 

opined that appellant was no longer disabled from work based on his review of the entire case 

file, a thorough physical examination and provided a well-reasoned and unequivocal medical 

opinion sufficient to resolve the conflict in medical opinion evidence. 

CONCLUSION 

The Board finds OWCP properly terminated appellant’s wage-loss compensation benefits 

as she is no longer disabled from work due to her accepted conditions. 

ORDER 

IT IS HEREBY ORDERED THAT the May 1, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: March 18, 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 

 12 D.V., Docket No. 15-1895 (issued February 22, 2016); see also I.J., 59 ECAB 408 (2013).