United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.F., Appellant 

and 

DEPARTMENT OF AGRICULTURE, FOOD & 

NUTRITION SERVICE, Alexandria, VA, 

Employer 

__________________________________________ 

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Docket No. 15-145 

Issued: May 1, 2015 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 22, 2014 appellant, through counsel, filed a timely appeal of an October 15, 

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. 

ISSUES 

The issues are: (1) whether OWCP met its burden to terminate appellant’s compensation 

benefits effective January 7, 2013; and (2) whether appellant established that she has continuing 

residuals on and after January 7, 2013. 

On appeal counsel argues that there is an unresolved conflict in the medical opinion 

evidence. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 20, 2011 appellant, then a 59-year-old nutritionist, filed a traumatic injury 

claim alleging that on November 30, 2011 she injured her lower back, both shoulders, right hand, 

and right knee when she collided with another employee while walking down the hall. OWCP 

accepted the claim for aggravation of lumbago, aggravation of left rotator cuff syndrome, 

aggravation of cervicalgia, and other unspecified complications of medical care. Appellant 

worked full duty from December 1, 2011 to January 22, 2012 and used sick leave for intermittent 

periods of disability. 

On February 16, 2012 appellant accepted a temporary modified job offer from the 

employing establishment working five hours per day retroactive to January 23, 2012. On 

March 28, 2012 she accepted another modified job offer from the employing establishment for 

her usual job duties working six hours per day retroactive to March 23, 2012. 

In an August 29, 2012 report, Dr. Kennedy Yalamanchili, an examining Board-certified 

neurosurgeon, related that a medical history revealed lower back problems going back to 1990 

following an automobile accident, surgical treatment in 2000, and spinal fusion and lumbar 

discectomy in October 2004. Appellant also related a history of lower back injuries due to motor 

vehicle accidents in 1998, 2001, 2002, and 2007, a 2010 fall, and the November 30, 2011 

employment injury. A review of a magnetic resonance imaging (MRI) scan revealed L5-S1 

postsurgical changes, L4-5 mild broad-based disc bulge with no nerve impingement or 

significant canal stenosis, and additional levels of mild degenerative changes. 

On October 8, 2012 OWCP referred appellant for a second opinion evaluation with 

Dr. Robert Allen Smith, a Board-certified orthopedic surgeon, to determine appellant’s current 

status. On October 29, 2012 it rescheduled appellant’s appointment with Dr. Smith. In a 

November 6, 2012 report, Dr. Smith noted that the claim had been accepted for aggravation of 

lumbago, cervicalgia, and left rotator cuff syndrome. A physical examination revealed no 

atrophy, deformity, trigger points, or spasm in the spine and no atrophy or deformity in the 

shoulder. Dr. Smith reported that appellant’s motion was limited due to prior fusions and she 

had satisfactory shoulder range of motion. He opined that appellant’s accepted conditions had 

resolved as there were no objective findings supporting any ongoing aggravation. Dr. Smith also 

opined that appellant could return to her date-of-injury job as there were no work restrictions due 

to the November 30, 2011 employment injury. 

In an October 31, 2012 report, Dr. Yalamanchili noted appellant’s MRI scan revealed 

mild-to-moderate disc disease and recommended surgery. He stated that her “symptoms 

continue to remain severe.” 

On December 5, 2012 OWCP issued a notice proposing to terminate appellant’s 

compensation benefits. It found that the weight of the evidence that her accepted conditions had 

resolved with no residuals resided with the opinion of Dr. Smith, a second opinion physician. 

On December 14, 2012 appellant accepted and returned to her full-time date-of-injury job 

as a nutritionist. 
3

In a January 3, 2013 report, Dr. James E. D’Amour, a treating Board-certified internist, 

stated that appellant continued to have low back pain problems and has had significant 

improvement in her shoulder pain and the exacerbation of her knee and ankle pain. He related 

that appellant has a medical history of lumbar disc disease and prior L5-S1 lumbar laminectomy 

“with subsequent lumbar arthrodesis at the same level in 2004.” Dr. D’Amour stated that he had 

reviewed Dr. Smith’s opinion and noted that Dr. Smith failed to include the fact that appellant 

“is unable to sit for more than [five] minutes without recurrence of severe low back pain.” 

Dr. D’Amour reported significantly decreased lumbar range of motion, inablility to flex forward 

without hand support, and 10 degrees of lateral bending. He related that Dr. Yalamanchili 

recommended further evaluation by Dr. Downing, a local pain management physician, who 

provided work restrictions. Dr. D’Amour noted that Dr. Downing attributed appellant’s pain to a 

L4-5 annular disc tear. In concluding, he opined that it was “very highly probable” that 

appellant’s pain and annular disc tear were due to the November 2011 incident. 

On January 4, 2013 Dr. Yalamanchili noted that a computerized tomography scan 

demonstrated “vacuum changes involving the facet at L4-L5 level” and a discography revealed 

positive L4-5 findings. Surgery was recommended and the risks discussed. In concluding, 

Dr. Yalamanchili opined that the November 30, 2011 employment injury aggravated her 

symptoms as they worsened following the injury. 

By decision dated January 7, 2013, OWCP finalized the termination of her compensation 

benefits effective that day. 

By letter dated January 28, 2013, appellant’s counsel requested a telephonic hearing 

before an OWCP hearing representative, which was held on May 13, 2013. 

By decision dated July 24, 2013, OWCP hearing representative affirmed the termination 

of appellant’s compensation benefits, relying upon the medical report and opinion of Dr. Smith. 

On March 17, 2014 OWCP received a November 17, 2013 report by Dr. Yalamanchili 

who provided a medical history and noted that it was currently being debated whether her current 

condition was related to her employment injury. Dr. Yalamanchili noted that appellant has a 

history of lower back problems, surgeries, and that she had been symptom free until her 

employment injury. Physical examination findings were provided and diagnostic tests reviewed. 

Under asssessment, Dr. Yalamanchili stated that appellant was seen for her persistent back pain 

and that her symptoms appear to be improving following her surgery. Appellant was released to 

return to work with restrictions. 

By letter dated July 16, 2014, appellant’s counsel requested reconsideration and 

submitted a July 9, 2014 report by Dr. Yalamanchili in support of the request. 

Dr. Yalamanchili, in a July 9, 2014 report, noted medical and employment injury 

histories, noted diagnostic tests performed, and stated that the claim had been accepted for 

aggravation of lumbago, aggravation of left rotator cuff syndrome, and aggravation of 

cervicalgia. He disagreed with Dr. Smith’s opinion as the report “lacks attention to the studies 

performed” as well as appellant’s need for lower back treatment and additional testing. 

Dr. Yalamanchili noted that the objective data reveals disc disease and radiculopathy. A review 
4

of a June 2012 MRI scan showed disc degeneration and L4-5 stenosis while a bone scan 

confirmed L4-5 changes, which were consistent with appellant’s injury and symptoms. 

Dr. Yalamanchili diagnosed additional conditions including herniated lumbar disc, lumbar disc 

degeneration, lumbar instability, lumbar radiculopathy, lumbar spondylosis without myelopathy, 

and pseudoarthrosis based on recent objective testing. 

By decision dated October 15, 2014, OWCP denied modification.2

LEGAL PRECEDENT -- ISSUE 1 

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

modification or termination of an employee’s benefits.3

 After it has determined that an 

employee has disability causally related to 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

 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.5

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

entitlement for disability.6

 To terminate authorization for medical treatment, OWCP must 

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

require further medical treatment.7

Section 8123(a) 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.8 When there are opposing reports of virtually 

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant 

to section 8123(a) of FECA, to resolve the conflict in the medical evidence.9

 2

 The Board notes that, following the October 15, 2014 decision, OWCP received additional evidence. However, 

the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 

C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 

ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 

3 S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003). 

4 I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

5 See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988). 

6 T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). 

7 Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003). 

8

 5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008); 

Darlene R. Kennedy, 57 ECAB 414 (2006). 

9 A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB 

713 (2005). 
5

ANALYSIS -- ISSUE 1 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

medical benefits for the accepted employment injury as a conflict of medical opinion exists 

between the opinions of Dr. Smith, the second opinion physician, and Dr. D’Amour, appellant’s 

treating physician, regarding whether further medical treatment was necessary for accepted 

employment injury. In a November 6, 2012 report, Dr. Smith reported that her examination 

revealed no shoulder atrophy or deformity and no spinal atrophy, deformity, trigger points or 

spasm. He concluded that appellant’s accepted conditions had resolved and she would not 

require any additional treatment for her left shoulder or spine causally related to her employment 

injury. Additionally, Dr. Smith concluded that appellant was capable of performing her date-ofinjury duties as there were no restrictions. In contrast, in a January 3, 2013 report, Dr. D’Amour 

noted that appellant continued to have low back pain problems as she was “unable to sit for more 

than [five] minutes without recurrence of severe low back pain.” Upon examination, he 

observed that appellant had decreased lumbar range of motion, 10 degrees lateral bending and 

inability to flex forward with using her hands. Dr. D’Amour diagnosed an L4-5 annular tear 

which was “very highly probable” due to the employment incident occurring on 

November 30, 2011. Further, he opined that appellant needed further treatment for her injuries. 

On appeal, counsel contends that OWCP erred in relying upon Dr. Smith’s opinion as he 

failed to provide a rationalized opinion as it was not based on an accurate review of the record, 

history, and physical examination. Counsel also argues that there is an unresolved conflict in the 

medical opinion evidence between Dr. Smith and Dr. Yalamanchili’s July 9, 2014 report.10 The 

Board, however, finds a conflict of medical opinion exists between Dr. Smith and Dr. D’Amour 

as to whether appellant still suffered from her accepted conditions as a result of the 

November 30, 2011 employment injury and required further medical treatment. Thus, 

Dr. Smith’s opinion alone is insufficient to establish that appellant’s accepted aggravation of 

lumbago, aggravation of cervicalgia, and aggravation of left rotator cuff syndrome had resolved 

and is insufficient to constitute the weight of the medical evidence. As the record contains an 

unresolved conflict in medical opinion, the Board consequently finds that OWCP has not met its 

burden of proof to terminate appellant’s medical benefits for the accepted employment injury.11

CONCLUSION 

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

compensation benefits. In light of the Board’s disposition on the first issue, the second issue is 

moot. 

 10 The Board notes that Dr. Yalamanchili’s report does not address an employment relationship and thus his 

report is not of equal weight to that of Dr. Smith’s sufficient to create a conflict in medical opinion. 

11 See G.S., Docket No. 09-1670 (issued May 19, 2010); Lori E. Rayner-Brown, Docket No. 02-375 (issued 

July 12, 2002). 
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ORDER 

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

Compensation Programs dated October 15, 2014 is reversed. 

Issued: May 1, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board