United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

Y.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 17-0461 

Issued: July 11, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On December 28, 2016 appellant, through counsel, filed a timely appeal from an 

October 19, 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. 

ISSUES 

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

wage-loss compensation and medical benefits, effective May 13, 2014; and (2) whether appellant 

 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

met her burden of proof to establish that she had continuing employment-related disability or 

residuals after May 13, 2014. 

FACTUAL HISTORY 

On April 4, 2008 appellant, then a 46-year-old part-time flexible carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on that date she fractured her left leg in the performance 

of duty. OWCP accepted the claim for a closed left lateral malleolus fracture of the ankle, a 

closed nonunion fracture of the left ankle, arrest of bone development or growth of the left ankle, 

and post-traumatic left ankle arthritis. Appellant stopped work on April 5, 2008 and received 

compensation for total disability beginning May 20, 2008.3 She returned to limited duty on 

August 8, 2009, but was placed back on FECA compensation on August 11, 2009 and later on 

the periodic rolls. 

A computerized tomography (CT) scan obtained September 22, 2008 found incomplete 

healing of a fracture of a distal fibular “with a persistent fracture line and cortical break along the 

lateral margin.” On March 10, 2009 appellant underwent an open reduction and internal fixation 

of the left ankle. She then underwent removal of left ankle hardware and a sinus tarsectomy on 

March 18, 2010.4

 A magnetic resonance imaging (MRI) scan of the left ankle dated 

December 10, 2010 revealed an old fracture union and degenerative bone cysts/geodes in the 

subarticular tibia and lateral malleolus.5

 

Dr. Armen Kelikian, a Board-certified orthopedic surgeon, performed an arthroscopic 

debridement of the left ankle on February 23, 2011. He diagnosed impingent syndrome of the 

ankle after a fracture and ankle arthrosis of the distal tibia. 

An OWCP medical adviser, on December 12, 2011, recommended expansion of 

appellant’s claim to include post-traumatic arthritis of the ankle, noting that it was a “wellrecognized” result of an ankle fracture. OWCP, on January 5, 2012, expanded acceptance of the 

claim to include post-traumatic left ankle arthritis, a left nonunion fracture, and the left arrest of 

bone development or growth. 

 3

 Appellant returned to modified work on August 8, 2009, but filed a claim for recurrence (Form CA-2a) 

beginning August 10, 2009. In a March 10, 2010 decision, OWCP denied a recurrence of disability beginning 

August 10, 2009. On April 1, 2010 it denied a claim for compensation from August 11, 2009 to March 1, 2010. On 

April 12, 2010 OWCP found that appellant had established a recurrence of total disability beginning 

March 18, 2010. In a May 27, 2010 decision, it denied her claim for compensation from March 3 to 17, 2010. 

4

 In a report dated August 25, 2010, Dr. Paul Belich, a Board-certified orthopedic surgeon and an impartial 

medical examiner, diagnosed a healed left distal fibula fracture and a resolved mild lumbar strain. He opined that 

appellant had no residuals of her ankle fracture. Dr. Belich noted that she was receiving treatment from a back 

specialist due to a June 30, 2010 motor vehicle accident and further noted that on June 6, 2009 she fractured her left 

shoulder when she was mugged. 

5

 OWCP referred appellant to Dr. Jaroslaw B. Dzwinyk, a Board-certified orthopedic surgeon, for an impartial 

medical examination. In a May 17, 2010 report, Dr. Dzwinyk diagnosed a resolved back strain/contusion, status 

post open reduction internal fixation of a left distal tibia fracture, and status post hardware removal. He found that 

appellant’s back condition and closed ankle fracture had resolved, but that she had continued symptoms due to her 

hardware removal, which should resolve within a few months. Dr. Dzwinyk opined that appellant could perform 

limited-duty work until June 18, 2010, when she could resume her usual work. 
3

A May 9, 2012 left ankle MRI scan showed irregularities in the posterior distal tibia 

possibly showing post-traumatic changes or early osteoarthritis and mild inflammatory changes. 

On May 6, 2013 Dr. Ari J. Kaz, a Board-certified orthopedic surgeon, performed a 

debridement of extensive scar tissue of the left ankle, a curettage of an osteochondral lesion, and 

debridement of two microfractures. He diagnosed an “osteochondral lesion of the talar dome 

with abundant scar tissue.” 

In a disability certificate dated June 17, 2013, Dr. Anatoly Rozman, a Board-certified 

physiatrist, advised that appellant was unable to work as she was recovering from left ankle 

surgery. In a duty status report dated July 5, 2013, Dr. Rozman found that she could not work. 

OWCP, on July 25, 2013, referred appellant to Dr. Allan M. Brecher, a Board-certified 

orthopedic surgeon, for a second opinion evaluation, to determine appellant’s work capacity. 

Dr. Kaz, in a report dated August 15, 2013, noted that it had been 10 weeks since 

appellant’s “left ankle arthroscopy with debridement and osteochondral lesion of the talus 

microfracture.”6

 He recommended a weight-bearing program and continued physical therapy. 

Dr. Kaz advised that appellant could perform “sit-down work only.” 

In a September 16, 2013 work capacity evaluation (OWCP-5c), Dr. Rozman diagnosed a 

left ankle fracture and found that appellant could work eight hours per day with restrictions, 

including no walking or driving and sitting and standing up to two hours per day. 

In a report dated October 30, 2013, Dr. Brecher discussed the medical evidence of record 

and found swelling and tenderness of the medial malleoli of the ankle and “paresthesias on 

tapping the medial calcaneal region.” He diagnosed residual arthritis after an ankle fracture. 

Dr. Brecher attributed the diagnosed condition to the work injury and related, “[Appellant] 

clearly had an ankle fracture related to her work-related injury in 2008 and is now going on to 

arthritic changes.” He found that she could perform sedentary employment with walking and 

standing for one hour per day. 

Dr. Kaz, in a report dated November 14, 2013, related that a left ankle MRI scan obtained 

November 4, 2013 showed four “low-grade osteochondral lesions in the talar dome, with mild 

surrounding marrow edema: and “an associated kissing lesion on the tibial plafond....” He 

diagnosed improving ankle pain after a debridement. Dr. Kaz reviewed the MRI scan with 

appellant and noted that she had “numerous osteochondral lesions which were visualized at the 

time of surgery.” 

On December 2, 2013 Dr. Rozman advised that her MRI scan “confirmed signs of severe 

arthritis in the left ankle.” He opined that appellant could perform sedentary work, but was off 

work pending treatment by Dr. Kaz. On January 3, 2014 Dr. Rozman found that she was totally 

disabled until February 2, 2014 due to a left ankle fracture and lumbar stenosis. 

 6

 On October 17, 2013 Dr. Kaz noted that physical examination findings did not “correlate with her history or her 

areas of subjective complaints.” He recommended additional physical therapy and opined that she was possibly in a 

cycle of pain preventing physical therapy. 
4

OWCP found a conflict in the medical evidence between Dr. Rozman, for appellant, and 

Dr. Brecher, for OWCP. On January 28, 2014 it referred appellant to Dr. G. Klaud Miller, a 

Board-certified orthopedic surgeon, for an impartial medical examination. It provided Dr. Miller 

with a November 25, 2013 statement of accepted facts (SOAF) indicating that it had accepted the 

April 4, 2008 work injury for an unspecified closed fracture of the left ankle. 

Dr. Rozman, in a report dated March 3, 2014, advised that appellant continued to have 

mobility issues due to her ankle and might require arthrodesis. He advised that she could not 

return to her usual employment due to her left ankle impairment. In a disability certificate, 

Dr. Rozman found appellant disabled from employment. 

In a report dated March 6, 2014, Dr. Miller noted that appellant had a disability rating for 

her time in the service for “headaches from a residual traumatic brain injury, lumbar spine 

sprain, degenerative disc disease, a cervical spine strain, and postconcussion syndrome.” He 

advised that he had reviewed the medical evidence provided, including the results of imaging 

studies. Dr. Miller noted that appellant was mugged on December 6, 2009 causing a left 

shoulder fracture and that she was in a motor vehicle accident on June 30, 2010. On examination 

of the right ankle, he found tenderness over the “osteromedial joint line, the proximal calf, the 

Achilles’ tendon, the distal half of the fibula, the medial malleolus, the whole posterotibial 

tendon, the peroneal tendons just distal to the tip of the fibula, the sinus tarsi, the whole anterior 

joint line, and the first metatarsal. There was a palpable spur over the first metatarsal.” 

Dr. Miller found no ligament instability and noted pain with dorsiflexion and plantar flexion. He 

related that after appellant left his office he observed her walking with “almost no limp.” 

Dr. Miller found that appellant had a “nondisplaced lateral malleolus fracture” due to her work 

injury which he had only seen “gone on to a nonunion one time.” He noted that, in his 

experience, he had “never seen arthritis as a result of this injury.” Dr. Miller advised that 

appellant’s fracture “healed uneventfully” and her continued complaints of pain “could have 

been nothing more than her residual back problems.” He noted that a CT scan “did show some 

equivocal evidence for a nonunion,” but surgery did not help her pain. Dr. Miller advised, 

“Giving [appellant] the benefit of the doubt, she had an ankle fracture” that “healed without any 

symptoms whatsoever by May 17, 2010.” He found that treatment after that date resulted from 

preexisting back pain. Dr. Miller opined that appellant had no disability for work due to her 

employment injury as of August 21, 2008. 

OWCP, on March 26, 2014, notified appellant of its proposed termination of her wageloss compensation and medical benefits. It noted that it had determined that a conflict existed 

between Dr. Brecher and Dr. Rozman regarding work restrictions, necessitating an impartial 

medical examination. OWCP found that Dr. Miller’s opinion represented the weight of the 

evidence and established that she had no further employment-related disability. 

Dr. Kaz, in a report dated April 10, 2014, related that he had treated appellant since 

March 2013 for ankle pain. He advised that arthroscopic surgery performed May 2013 “showed 

numerous osteochondral lesions of her talar dome. Appellant’s history, physical, and imaging 

studies including an MRI [study] from November 5, 2013 clearly demonstrates numerous 

osteochondral lesions in the talus as well as articular damage.” Dr. Kaz opined that she “clearly 

has left ankle arthritis.” He diagnosed post-traumatic left ankle arthritis and recommended 

further surgery. Dr. Kaz noted that appellant did not have problems before her injury on April 4, 

2008, which was treated with casting and surgery. 
5

By decision dated May 20, 2014, OWCP terminated appellant’s wage-loss and medical 

benefits effective May 13, 2014. It found that the opinion of Dr. Miller as the impartial medical 

examiner constituted the weight of the evidence and supported that she had no further 

employment-related condition or disability. 

In a June 9, 2014 report, Dr. Rozman questioned Dr. Miller’s findings given the “multiple 

imaging studies, which are objective findings supporting [her] claim for nonunion fracture of the 

left ankle....” 

Appellant, on June 16, 2014, requested a review of the written record. In a statement 

dated June 25, 2014, she advised that she had left ankle surgery on June 20, 2014. Appellant 

also asserted that her April 4, 2008 injury aggravated a preexisting back condition. 

In a report dated June 26, 2014, Dr. Kaz related: 

“In brief, [appellant] injured her ankle in April 2008, while at work. This led to a 

chain of events that involved casting of her ankle, subsequent surgeries, and 

eventually post-traumatic ankle arthritis. [Appellant] has had numerous imaging 

studies including radiographs and MRI [studies] that support the diagnosis of 

ankle arthritis. She has also had two ankle arthroscopies by me, one in May 2013 

and one in June 2014, both of which document ankle arthritis. It is clear based on 

her history, physical, imaging studies, and findings at the time of surgery, that 

[appellant] has ankle arthritis which is directly related to her injury from 

April 2008.” 

Dr. Kaz disagreed with the impartial medical examiner’s finding that appellant did not have 

ankle arthritis, noting that it was “clear beyond a reasonable degree of doubt that her injury from 

April 2008 has led to the development of ankle arthritis.” 

On June 30, 2014 Dr. Rozman found that appellant was disabled as she was recovering 

from surgery on her left foot. 

Dr. Kaz, on December 11, 2014, advised that appellant was permanently disabled from 

standing and walking at work. 

By decision dated January 23, 2015, an OWCP hearing representative affirmed the 

May 20, 2014 decision, finding that the weight of medical evidence rested with Dr. Miller. 

Dr. Rozman, in a report dated January 5, 2015, discussed appellant’s history of 

arthroscopic surgeries and her continued difficulty walking due to her left ankle condition. He 

found that she was unable to perform her work duties. Dr. Rozman advised that appellant’s 

lumbar radiculopathy and disc disease contributed to her condition. 

On January 26, 2015 Dr. John E. Mayer, a psychologist, indicated that he was treating 

appellant for a physiological condition arising from her traumatic ankle injury. He diagnosed 

depression, anxiety, post-traumatic stress disorder, headaches, and a sleep disorder. 

On May 26, 2015 appellant requested that OWCP accept her claim for a back injury. On 

June 5, 2015 she sought reconsideration of the termination of compensation. 
6

Dr. Charles Slack, an orthopedic surgeon, on June 8, 2015, noted appellant’s complaints 

of radiating left leg pain worsened by a changed gait due to a work-related ankle condition. He 

diagnosed lumbar spondylosis and degenerative disc disease and indicated that it appeared her 

2008 work injury aggravated preexisting degenerative lumbar disc disease. 

In a report dated June 10, 2015, Dr. Robert Fink, an orthopedic surgeon, obtained a 

history of appellant injuring her back in the military.7

 Appellant was asymptomatic until she 

experienced a work injury. Dr. Fink diagnosed a lumbar disc protrusion at L5-S1. 

Dr. Estella Hernandez, Board-certified in family practice, in a September 17, 2015 report, 

evaluated appellant for left ankle and foot pain exacerbated with standing and walking for 

extensive periods. She diagnosed secondary osteoarthritis of the foot and ankle, an arrest of 

bone development, a nonunion left ankle fracture, a closed fracture of the lateral malleolus, and 

low back pain with sacroiliac joint dysfunction. 

In a January 17, 2016 report, Dr. Fink discussed appellant’s April 4, 2008 work injury 

and subsequent treatment. He recommended further surgery and found that the treatment was 

necessary due to her accepted employment injury. 

By decision dated March 14, 2016, OWCP denied modification of its January 23, 2015 

decision. It found that appellant had not submitted evidence showing disabling residuals of her 

April 4, 2008 work injury. 

On May 4, 2016 Dr. Fink advised that appellant could not perform her usual work due to 

a back condition and traumatic ankle fracture. 

In a report dated May 24, 2016, Dr. Roberto Ramirez, a Board-certified internist, noted 

that appellant sustained an ankle fracture and aggravation of lumbar disc disease and 

radiculopathy at L4-5 and L5-S1 due to an April 4, 2008 employment injury. He found that she 

was permanently disabled from working on her feet. 

On June 9, 2016 appellant, through counsel, requested reconsideration. She submitted a 

November 23, 2015 MRI study of the left ankle, which showed “[p]rominent arthritic 

changes....” 

In a decision dated October 19, 2016, OWCP denied modification of its March 14, 2016 

decision. It found that the medical evidence of record was insufficient to overcome the weight 

afforded Dr. Miller as impartial medical examiner. 

On appeal counsel argues that OWCP should have expanded acceptance of appellant’s 

claim and that it ignored the evidence of record. 

 7

 By decision dated November 9, 2015, OWCP granted appellant a schedule award for five percent permanent 

impairment of her left lower extremity. 
7

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. It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment.8

 

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.9

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.10 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.11 

OWCP’s procedures provide, “[w]hen the DMA [district medical adviser], second 

opinion specialist or referee physician renders a medical opinion based on a SOAF [statement of 

accepted facts] which is incomplete or inaccurate or does not use the SOAF as the framework in 

forming his or her opinion, the probative value of the opinion is seriously diminished or negated 

altogether.”12

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a closed left lateral malleolus fracture of the 

ankle, a closed nonunion fracture of the left ankle, arrest of bone development or growth of the 

left ankle, and post-traumatic left ankle arthritis due to an April 4, 2008 work injury. It paid her 

compensation for total disability. Appellant underwent numerous left ankle surgeries. 

OWCP determined that a conflict arose between Dr. Rozman, an attending physician who 

found that appellant could perform sedentary employment, and Dr. Brecher, an OWCP referral 

physician who found that she had no restrictions due to her accepted work injury. It referred her 

to Dr. Miller, a Board-certified orthopedic surgeon, for an impartial medical examination. 

Where a case is referred to an impartial medical examiner for the purpose of resolving a 

conflict, the opinion of such specialist, if sufficiently well rationalized and based on a prior 

factual and medical background, must be given special weight.13 The Board, however, finds that 

 8 Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001). 

9 Gewin C. Hawkins, 52 ECAB 242 (2001). 

10 5 U.S.C. § 8123(a). 

11 David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003). 

12 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600(3) 

(October 1990). 

13 See Glen E. Shriner, 53 ECAB 165 (2001). 
8

Dr. Miller’s opinion is of diminished probative value and thus does not represent the special 

weight of the medical evidence. OWCP provided the physician with a SOAF that did not 

include all of the accepted conditions. To assure that the report of a medical specialist is based 

upon a proper factual background, OWCP provides information to the physician through the 

preparation of a SOAF.14 The SOAF indicated that it had accepted appellant’s claim for an 

unspecified closed fracture of the left ankle. It did not include the accepted conditions of a 

closed nonunion fracture of the left ankle, arrest of bone development or growth of the left ankle, 

and post-traumatic left ankle arthritis. 

In his March 6, 2014 report, Dr. Miller found that appellant sustained a nondisplaced 

ankle fracture due to her work injury, noting that he had only once seen nonunion after such an 

injury. He attributed her continued complaints to her back condition. Dr. Miller further advised 

that he had not seen arthritis due to such an ankle fracture. OWCP, however, accepted a left 

nonunion fracture and ankle arthritis due to the work injury. Dr. Miller did not find that 

appellant had no residuals from these conditions, but instead found that she had not experienced 

such conditions due to her work injury. As noted, when a physician renders a medical opinion 

based on an incomplete or inaccurate SOAF, the probative value of the opinion is seriously 

diminished or negated altogether.15 Dr. Miller relied upon a SOAF that did not accurately reflect 

the conditions OWCP accepted as employment related. Consequently, his opinion is of 

diminished probative value and insufficient to resolve the conflict in medical opinion. 

CONCLUSION 

The Board finds that OWCP improperly terminated appellant’s compensation benefits, 

effective May 13, 2014.16

 14 See supra note 12. 

15 See supra note 12; see also A.C., Docket No. 07-2423 (issued May 15, 2008). 

16 In view of the Board’s determination that OWCP improperly terminated appellant’s compensation benefits, the 

issue of whether appellant has established continuing disability or residuals after May 13, 2014 is moot. 
9

ORDER 

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

Compensation Programs dated October 19, 2016 is reversed. 

Issued: July 11, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board