United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.C., Appellant

and

SECURITIES & EXCHANGE COMMISSION,

OFFICE OF HUMAN RESOURCES,

New York, NY, Employer

__________________________________________

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Docket No. 17-0851

Issued: January 3, 2018

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 7, 2017 appellant, through counsel, filed a timely appeal from a September 30, 

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.

 

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

ISSUE

The issue is whether appellant met her burden of proof to establish disability for 

intermittent periods commencing November 29, 2005 due to her accepted work injuries.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts as presented in the Board’s 

prior decisions are incorporated herein by reference. The relevant facts are set forth below. 

Appellant, then a 60-year-old securities compliance examiner, has an accepted 

occupational disease claim (Form CA-2) for thoracic and lumbosacral neuritis/radiculitis, 

aggravation of degenerative thoracic and lumbar disc disease, and aggravation of thoracic and 

lumbar herniated disc(s), which arose on or about November 1, 2005.4 She submitted claims for 

wage-loss compensation (Form CA-7) for intermittent periods of disability beginning 

November 29, 2005. Beginning in June 2009, OWCP issued several decisions denying 

appellant’s claim for intermittent wage-loss compensation on or after November 29, 2005.

In an August 8, 2014 decision, the Board set aside a September 4, 2013 decision of 

OWCP as the impartial medical examiner (IME) had not adequately resolved the conflict in 

medical opinion evidence. The Board ordered OWCP to obtain a supplemental opinion from the 

IME.

In an August 24, 2015 decision, the Board set aside OWCP’s October 23, 2014 decision 

denying compensation and remanded the case for further development of the medical evidence.5 

The Board found that a September 3, 2014 supplemental report from Dr. Ronald A. Ripps, a 

Board-certified orthopedic surgeon and IME, had not adequately addressed the Board’s concerns 

raised in its August 8, 2014 decision.6 The Board noted that, while OWCP provided Dr. Ripps a 

new statement of accepted facts (SOAF) which included all of appellant’s accepted conditions, it 

remained unclear from his September 3, 2014 supplemental report whether he acknowledged that 

appellant had sustained all of the accepted thoracic and lumbar conditions. Consequently, the 

Board directed OWCP to refer appellant to another IME for purpose of resolving the conflict in 

medical opinion regarding whether appellant’s claimed disability on or after November 29, 2005

was employment related.

 

3 Docket No. 15-1086 (issued August 24, 2015); Docket No. 14-0791 (issued August 8, 2014); Docket No. 12-

1386 (issued May 2, 2013); Docket No. 11-0225 (issued September 8, 2011).

4 Appellant attributed her middle and lower back condition to lifting heavy boxes of documents on many 

occasions. She filed claims for wage loss for intermittent periods beginning November 29, 2005. 

5 Docket No. 15-1086 (issued August 24, 2015).

6 Docket No. 14-0791 (issued August 8, 2014). In a September 8, 2011 decision, the Board had remanded the 

case to OWCP, finding that an August 14, 2008 report of Dr. William Healy, a Board-certified orthopedic surgeon 

who previously served as an IME, required clarification regarding appellant’s work-related disability on or after 

November 29, 2005. Docket No. 11-0225 (issued September 8, 2011). In a May 2, 2013 decision, the Board found 

that Dr. Healy’s November 28, 2011 supplemental report did not adequately clarify his earlier report and it 

remanded the case to OWCP in order to refer appellant to a new IME. Docket No. 12-1386 (issued May 2, 2013).
3

On remand OWCP referred appellant to Dr. James M. Kipnis, a Board-certified 

orthopedic surgeon, for an impartial medical examination and opinion regarding whether 

appellant had disability for intermittent periods on or after November 29, 2005 due to her 

accepted work injuries. It provided Dr. Kipnis with a March 30, 2016 SOAF, which identified 

appellant’s accepted conditions as thoracic and lumbosacral neuritis/radiculitis, aggravation of 

degenerative disc disease (thoracic and lumbar), and aggravation of herniated disc (thoracic and 

lumbar). 

In an August 9, 2016 report, Dr. Kipnis discussed appellant’s factual and medical history, 

including OWCP’s recitation of her accepted conditions. He reported the findings of his 

physical examination on that date, noting that appellant did not exhibit objective evidence of 

neurologic deficits, radicular symptoms, atrophy, or palpable spasms. Appellant’s motor 

strength in her lower extremities was 5/5 and her reflexes were 2+ equal and symmetric. 

Dr. Kipnis noted that x-rays of appellant’s thoracic and lumbar spine obtained in his office 

demonstrated maintenance of disc space height and alignment throughout her thoracic and 

lumbar spines. He indicated that appellant did not present with any clinical signs or symptoms 

of neuritis/radiculitis. Dr. Kipnis noted that a February 2, 2006 magnetic resonance imaging 

(MRI) scan of the lumbosacral spine demonstrated disc bulges with no evidence of 

neuroforaminal compromise and that December 19, 2005 lumbosacral x-rays showed a question 

of a slight scoliosis versus positioning, with normal disc spaces, good alignment, and no 

evidence of degenerative osteophyte formation. 

A February 2, 2006 MRI scan of the thoracic spine showed right-sided small extruded 

T6-7 disc herniation, small central T7-8 disc herniation, and left-sided T8-9 disc herniation. 

Dr. Kipnis noted that August 14, 2008 MRI and computerized tomography (CT) scans of the 

thoracic spine showed multilevel pathology, without segmental or neuroforaminal stenosis at any 

level. He indicated that, based upon these results, he was unable to provide a well-reasoned 

medical explanation, with supporting objective findings, as to how the work injury of 

November 1, 2005 either directly caused, aggravated, precipitated, or accelerated the accepted 

diagnosis of thoracic and lumbosacral neuritis/radiculitis. Dr. Kipnis further noted that it was 

medically probable that, for a disc herniation to be an acute event caused by lifting, the patient

would present with a specific occurrence. However, it was more medically probable that 

appellant’s disc herniations “described and discovered incidentally on an MRI” scan were 

degenerative in nature rather than occurring as acute incidents at work.

Dr. Kipnis further noted that he was also unable to provide a well-reasoned medical 

explanation, within a degree of medical certainty, as to how the work-related injury of 

November 1, 2005 directly aggravated a lumbar herniated disc. He advised that the MRI scans 

of the lumbosacral spine only demonstrated disc bulges, with no report of a herniation. 

Dr. Kipnis noted that appellant’s repetitive lifting of boxes did not cause any material change in 

her condition as evidenced by a lack of any neurologic findings reported on any physical 

examination, and no evidence of disc progression on any subsequent MRI scan. He advised that 

a temporary aggravation caused disability from November 1, 2005 through April 26, 2006, and 

indicated that this disability was caused by nonwork-related factors, including healing rib 

fractures, chronic narcotic use, lack of physical therapy, depression, fibromyalgia, and knee and 
4

ankle injuries, as well as by a new herniated lumbar disc from May 16, 2006.7 Dr. Kipnis 

indicated that appellant did not suffer from disabling residuals of the accepted conditions, noting 

that there had never been, nor was there currently, any clinical evidence of a thoracic or

lumbosacral neuritis/radiculitis. He indicated, “There has not been, nor is there currently, an 

aggravation of a herniated disc and the aggravation of degenerative disc disease of thoracic and 

lumbar spine are temporary in nature as evidenced by the fact that she has no progression of any 

disc-related pathology on any MRI [scan].”

In a September 30, 2016 decision, OWCP found that appellant failed to establish 

disability for intermittent periods commencing November 29, 2005 due to her accepted 

employment injuries. It determined that the weight of the medical evidence regarding this matter 

rested with the August 9, 2016 report of Dr. Kipnis, the IME.

LEGAL PRECEDENT

FECA provides that if there is disagreement between an OWCP-designated physician 

and the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.8 For a conflict to arise the opposing physicians’ viewpoints must be of 

“virtually equal weight and rationale.”

9

 Where OWCP has referred the case to an IME to 

resolve a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well

reasoned and based upon a proper factual background, must be given special weight.10

The IME’s report must actually fulfill the purpose for which it was intended. It must 

resolve the conflict in medical opinion.11 OWCP should ensure that the IME’s report is 

comprehensive, clear, and definite, and that it is based on current information and supported 

by substantial medical reasoning, as well as a review of the case file.12 If the report is vague, 

speculative, incomplete, or not rationalized, it is OWCP’s responsibility to secure a 

supplemental report from the IME to correct any defects.13

ANALYSIS

In December 2007, OWCP accepted appellant’s occupational disease claim for thoracic 

and lumbosacral neuritis/radiculitis, which arose on or about November 1, 2005. It later 

 

7 Dr. Kipnis noted that appellant reported that she suffered a back injury by lifting a box of documents at work on 

May 16, 2006, but the record does not indicate that OWCP has accepted a May 16, 2006 traumatic back injury. 

8 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The district medical 

adviser (DMA), acting on behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).

9 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

10 Gary R. Sieber, 46 ECAB 215, 225 (1994).

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.11d(2) (September 2010).

12 Id.

13 Id.
5

expanded the accepted conditions to include aggravation of degenerative thoracic and lumbar 

disc disease, and aggravation of thoracic and lumbar herniated disc(s) as accepted conditions. 

Appellant filed claims for wage loss for intermittent periods beginning November 29, 2005.

OWCP engaged in extensive development of the medical evidence in order to determine 

whether appellant established employment-related disability for intermittent periods 

commencing November 29, 2005. As part of this development, it referred her to Dr. Ripps for 

an impartial medical examination and Dr. Ripps produced a July 10, 2013 report. In an 

August 8, 2014 decision, the Board remanded the case to OWCP for further development of the 

medical evidence noting that Dr. Ripps’ July 10, 2013 report was not sufficiently rationalized to 

constitute the weight of the medical evidence regarding appellant’s disability claim. 

In an August 24, 2015 decision, the Board again remanded the case for further 

development of the medical evidence, noting that Dr. Ripps’ September 3, 2014 supplemental 

report was not sufficiently rationalized to constitute the weight of the medical evidence. The 

Board directed OWCP to refer appellant to another IME for the purpose of obtaining his or her 

rationalized medical opinion regarding whether appellant had employment-related disability on 

or after November 29, 2005. 

On remand OWCP referred appellant to Dr. Kipnis for an impartial medical examination 

and opinion regarding whether appellant was totally disabled on or after November 29, 2005 due 

to the accepted employment injury. Dr. Kipnis produced an August 9, 2016 report. OWCP then

issued a September 30, 2016 decision denying appellant’s claim for employment-related 

disability commencing November 29, 2005, finding that Dr. Kipnis’ August 9, 2016 report 

constituted the weight of the medical evidence.

The Board finds that Dr. Kipnis’ opinion is not sufficiently well rationalized to constitute 

the weight of the medical opinion evidence regarding whether appellant had disability for 

intermittent periods commencing November 29, 2005 due to her accepted work injuries.14 As 

noted, OWCP accepted appellant’s claim for lumbosacral and thoracic neuritis or radiculitis, 

aggravation of degenerative thoracic and lumbar disc disease, and aggravation of thoracic and 

lumbar herniated disc(s). It instructed Dr. Kipnis to determine whether appellant had disability 

on or after November 29, 2005 due to her accepted work injuries listed in the SOAF. Contrary to 

the SOAF, Dr. Kipnis opined in his August 9, 2016 report that he did not believe that several of 

appellant’s accepted thoracic and lumbar conditions were employment related. He indicated 

that, based upon the results of diagnostic testing, he was unable to provide a well-reasoned 

medical explanation, with supporting objective findings, as to how the work injury of 

November 1, 2005 either directly caused, aggravated, precipitated, or accelerated the accepted 

diagnosis of thoracic and lumbosacral neuritis/radiculitis. Dr. Kipnis also advised that he was 

unable to provide a well-reasoned medical explanation, within a degree of medical certainty, as 

to how the work injury of November 1, 2005 directly aggravated a lumbar herniated disc.15

 

14 Gary R. Sieber, supra note 10.

15 Dr. Kipnis noted that appellant’s repetitive lifting of boxes did not cause any material change in her condition 

as evidenced by a lack of any neurologic findings reported on any physical examination, and no evidence of disc 

progression on any subsequent MRI scan.
6

In L.A.,16 the Board reversed OWCP’s termination of the claimant’s wage-loss 

compensation and medical benefits because the IME noted that the claimant merely sustained a 

lumbar sprain and failed to acknowledge the accepted conditions of lumbosacral neuritis or 

radiculitis. OWCP had terminated benefits based on the IME’s opinion that the lumbar sprain 

had resolved. In N.C.,17 the Board reversed OWCP’s termination of the claimant’s wage-loss 

compensation and medical benefits because OWCP had relied on the opinion of the IME who 

determined that the claimant merely sustained soft tissue injuries as a result of two employment 

incidents, instead of the accepted conditions of lumbosacral radiculitis of the lower extremities, 

lumbar acquired spondylolisthesis, and L5 spondylosis. The Board has held that it is well 

established that medical reports must be based on a complete and accurate factual and medical

background; medical opinions based on an incomplete or inaccurate history are of diminished 

probative value.18 

In the present case, OWCP erred in relying on a report from a physician who disregarded 

several accepted conditions listed in the SOAF when providing an opinion regarding whether 

appellant’s accepted conditions caused disability for intermittent periods on or after 

November 29, 2005.19 Because Dr. Kipnis’ August 9, 2016 report was not based on an accurate 

history, his opinion was not well rationalized and should not be given the special weight of 

evidence.20

For the above-noted reasons, Dr. Kipnis’ opinion requires clarification and elaboration. 

Therefore, in order to resolve the conflict in the medical evidence, the case will be remanded to 

OWCP for referral of the case record, a current detailed SOAF and, if necessary, appellant, to

Dr. Kipnis for a supplemental report regarding whether she had disability for intermittent periods 

on or after November 29, 2005 due to her accepted work injuries.21 OWCP should clearly advise

Dr. Kipnis of all of appellant’s accepted conditions and provide him with a detailed description 

of the accepted work factors that caused appellant’s accepted thoracic and lumbar conditions. If 

the IME is unable to clarify or elaborate on his original report or if his supplemental report is 

also vague, speculative or lacking in rationale, OWCP must refer appellant, along with the case 

record and a detailed SOAF, to another IME for the purpose of obtaining a rationalized medical 

 

16 Docket No. 14-1138 (issued September 9, 2014).

17 Docket No. 15-1855 (issued June 3, 2016).

18 See L.A., supra note 16, and N.C., supra note 17.

19 Id.

20 Id. Moreover, the Board notes that Dr. Kipnis’ August 9, 2016 report is of limited probative value on the 

relevant issue of this case for the further reason that he provided an inaccurate history when he discussed a 

November 1, 2005 traumatic injury despite the fact that no such traumatic injury has been accepted by OWCP. See 

supra note 18. Dr. Kipnis also indicated that appellant suffered a “temporary aggravation” causing disability from

November 1, 2005 through April 26, 2006, but he provided an equivocal opinion regarding the nature and cause of 

such an aggravation. The Board has held that an opinion which is equivocal in nature is of limited probative value 

regarding the issue of causal relationship. See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 

193, 195 (1956).

21 See supra note 11.
7

opinion on the issue.22 After completing such further development, OWCP shall issue a de novo

decision regarding appellant’s disability claim.

CONCLUSION

The Board finds that the case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the September 30, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision.23

Issued: January 3, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

22 Harold Travis, 30 ECAB 1071, 1078 (1979).

23 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.