United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Houston, TX, Employer 

__________________________________________ 

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Docket No. 15-0538 

Issued: September 23, 2016 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, 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 January 20, 2015 appellant, through counsel, filed a timely appeal from a 

December 29, 2014 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 the case. 

ISSUE 

The issue is whether OWCP properly terminated appellant’s wage-loss compensation 

effective March 10, 2013. 

 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

FACTUAL HISTORY 

This case has previously been before the Board.3 On February 13, 1998 appellant, an 

acting supervisor, was reporting for work at 3:50 a.m. when a man grabbed her purse, causing 

her to fall to the ground. OWCP accepted the claim for left knee contusion, cervical strain, and 

situational stress. Appellant stopped work that day. After a brief return to work in July 1998, 

appellant stopped work again on July 20, 1998 and did not return. She was placed on the 

periodic compensation rolls. 

By report dated March 21, 2012, Dr. Jorge Raichman, an OWCP referral physician, noted 

appellant’s complaint of extensive paranoia since the 1998 work incident, social isolation, 

becoming angry easily, insomnia and nightmares, and decreased activities to the degree that she 

was a recluse. On mental status examination appellant was hesitant and stuttered, appeared 

depressed, suspicious, and paranoid. Dr. Raichman diagnosed psychosis, post-traumatic stress 

disorder by history, and mixed personality disorder. In response to questions posed by OWCP, 

he noted that appellant had significant anxiety that translated into paranoia and that, seemingly, 

no improvement had occurred in the 14 years since the 1998 incident, which was difficult to 

understand. He found appellant’s prognosis to be poor, advised that she was unable to return to 

work as a supervisor in the customer service area, and recommended part-time work. On 

May 30, 2012 Dr. Raichman provided a sworn statement in which he noted that he had been 

interviewed by an employing establishment Office of Inspector General (OIG) special agent. 

Dr. Raichman indicated that the agent reported that appellant had been employed in multiple, 

different capacities with different employers continuously and successfully for many years, 

although she denied this when he interviewed her on March 21, 2012. He advised that, based on 

this information, appellant was capable of working at her previous capacity with the employing 

establishment and that her symptom presentation represented malingering for monetary gain. On 

May 30, 2012 Dr. Raichman completed a revised a work capacity evaluation (Form OWCP 5a) 

indicating that appellant could work eight hours a day at any job, beginning that same day. 

In reports dated March 31, June 20, and September 19, 2011, Dr. Harvey A. Rosenstock, 

an attending Board-certified psychiatrist, advised that appellant continued to suffer from anxiety, 

depression, panic, and post-traumatic stress disorder due to the employment injury. It found that 

she could not return to the date-of-injury work and was only capable of very low stress part-time 

employment. 

OWCP found a conflict of medical opinion between the opinions of Dr. Rosenstock and 

Dr. Raichman. Accordingly, it scheduled a medical appointment with Dr. Andrew Brylowski, a 

referee physician, to resolve the conflict in medical evidence. Dr. Brylowski found that all 

employment-related disability had ceased. 

On December 21, 2012 OWCP issued a notice of proposed termination of appellant’s 

compensation based on the opinion of Dr. Brylowski. 

 3

 Docket Nos. 13-2019 and 14-310 (issued June 18, 2014). 
3

In a February 14, 2013 decision, OWCP terminated appellant’s wage-loss compensation 

benefits, effective March 10, 2013, based on the opinion of Dr. Brylowski.4 Medical benefits 

were not terminated. On September 10, 2013 following a request for reconsideration OWCP 

denied modification of the termination decision. Appellant timely requested a hearing before a 

hearing representative. 

By decision dated September 10, 2013, an OWCP hearing representative affirmed the 

February 14, 2013 termination decision. Appellant appealed this decision to the Board. 

In a June 18, 2014 decision, the Board determined that OWCP had properly found a 

conflict of medical evidence between appellant’s treating physician and OWCP’s referral 

physician, that OWCP had properly referred the record to Dr. Brylowski to resolve the conflict in 

medical evidence as to appellant’s work capacity. OWCP had met its burden of proof to 

terminate appellant’s wage-loss compensation effective March 10, 2013 as she had no 

employment-related disability.5 The facts and the circumstances set forth in the previous appeal 

are incorporated herein by reference. 

On September 30, 2014 appellant, through counsel, again requested reconsideration of 

the termination decision, stating that the request was based on new legal arguments not 

previously advanced regarding the termination of monetary compensation.6

On reconsideration, counsel contended that he was providing new legal arguments.7

 He 

argued: (1) that the second opinion report from Dr. Raichman lacked rationale sufficient to 

create a conflict in medical evidence; (2) that the second opinion report was based on 

impermissible direct interference from the employing establishment; (3) that Dr. Brylowski’s 

report could not be given special weight as there was no conflict at the time of referral; (4) that 

Dr. Brylowski’s report could not be used as a second opinion physician as appellant had not 

provided an opportunity to bring a physician with her to his examination; and (5) that 

Dr. Brylowski’s report lacked rationale. 

In a merit decision dated December 29, 2014, OWCP reviewed the legal arguments 

proffered by counsel and found that the opinion of Dr. Brylowski was entitled to the special 

 4

 In a January 11, 2013 decision, OWCP found that appellant forfeited her right to wage-loss compensation 

because she knowingly failed to report or underreported self-employment. It also found, by decision dated July 29, 

2013 that appellant had an overpayment of compensation in the amount of $127,142.08 because she failed to 

provide information which she knew or should have known to be material. Those decisions were also appealed to 

the Board and affirmed. Id. The forfeiture and overpayment decisions are not presently before the Board. 

5 Supra note 3 

6

 A right to reconsideration within one year accompanies any subsequent merit decision. This includes ... any 

merit decision by the Board. See Federal (FECA) Procedure manual, Part 2 -- Claims, Reconsiderations, Chapter 

2.1602.4(a) (October 2011). 

7

 The Board notes that since March 25, 2010, appellant has authorized three different attorneys to handle her case. 

On March 25, 2010 appellant authorized Jeffrey P. Zeelander, Esq. to represent her case before OWCP, on 

March 25, 2012 appellant authorized Alan J. Shapiro, Esq., as his attorney, and finally on August 1, 2014 appellant 

authorized Steven E. Brown, Esq. as his attorney. The current representative, Mr. Brown, made his first appearance 

in the case on August 1, 2014. 
4

weight accorded an impartial examination and determined that the evidence presented on 

reconsideration was not of sufficient probative value to modify the June 18, 2014 decision. 

LEGAL PRECEDENT 

Once OWCP has accepted a claim and pays compensation, it bears the burden to justify 

modification or termination of benefits.8

 Having determined that an employee has a disability 

causally related to his or her federal employment, OWCP may not terminate compensation 

without establishing either that the residuals have ceased or that they are no longer related to the 

employment injury.9

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.10 In situations where there are 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 on a proper factual background, must be given the 

special weight.11

ANALYSIS 

In its June 18, 2014 decision, the Board found that OWCP met its burden of proof to 

terminate appellant’s wage-loss compensation effective March 10, 2013. The Board issued its 

decision on the basis of the evidence of record at that time. 

Following the Board’s decision, on September 13, 2014 appellant, through counsel, 

thereafter requested reconsideration of the termination decision.12 No new medical evidence was 

presented, but new legal arguments were proffered. Issues addressed and resolved by the Board 

in a final decision are res judicata and not subject to further review by the Board absent further 

review by OWCP.13 In this case, as OWCP has now reviewed these new legal arguments and 

issued a new merit decision on them, the matters are not barred for review by the Board under 

res judicata.

14 

 8 Bernadine P. Taylor, 54 ECAB 402 (1990). 

9 Id.

10 5 U.S.C. § 8123(a). 

11 Nathan L. Harrell, 41 ECAB 401 (1990). 

12 Supra note 6. 

13 David E. Newman, 48 ECAB 305 (1997); Hugo A. Mentink, 9 ECAB 628 (1958). A decision of the Board is 

final upon the expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d). 

14 T.B., Docket No. 15-0001 (issued July 1, 2015); Hugo A. Mentink, id. 
5

The only issue on appeal before the Board is whether OWCP, in its December 29, 2014 

decision, properly denied modification of its termination of appellant’s wage-loss compensation 

effective March 10, 2013. The Board finds that counsel’s new legal arguments are insufficient to 

require modification of the termination. 

Counsel argued that: (1) the second opinion report from Dr. Raichman lacked sufficient 

rationale to create a conflict in medical evidence; (2) that the second opinion report was based on 

impermissible direct interference from the employing establishment; (3) that Dr. Brylowski’s 

report could not be given special weight as there was no conflict at the time of referral; (4) that 

Dr. Brylowski’s report could not be converted to a second opinion report as appellant had not 

been provided an opportunity to bring a physician with her to his examination; and (5) that 

Dr. Brylowski’s report lacked rationale. 

By report dated March 21, 2012, Dr. Raichman found that appellant had significant 

anxiety that translated into paranoia and that, seemingly, no improvement had occurred in the 14 

years since the 1998 incident, which was difficult to understand. He stated that appellant’s 

prognosis was poor and advised that she would not be able to return to work as a supervisor in 

the customer service area, and recommended part-time work. On May 30, 2012, however, he 

provided a sworn statement in which he noted that he had been interviewed by an OIG special 

agent of the employing establishment who reported to Dr. Raichman that appellant had been 

employed in multiple different capacities with different employers continuously and successfully 

for many years. This fact had been denied by appellant when he had met with her in 

March 2012. Dr. Raichman advised that, based on this information, appellant was capable of 

working at her previous capacity with the employing establishment and that her symptom 

presentation represented malingering for monetary gain. On May 30, 2012 he completed a 

revised work capacity evaluation indicating that appellant could work eight hours a day at any 

job, beginning that day. 

The Board finds that Dr. Raichman’s supplemental findings were sufficiently 

rationalized, provided an appropriate basis upon which to revise his opinion as to appellant’s 

work capacity, and were in conflict with the treating physician. Dr. Raichman was provided 

accurate information about appellant’s employment history and that information provided a 

sufficient basis upon which to alter his opinion. Alternatively, Dr. Rosenstock found that 

appellant continued to suffer from anxiety, depression, panic and post-traumatic stress disorder 

and could only work a very low stress, part-time employment. 

Counsel further argued that the second opinion physician had been inappropriately 

contacted by the employing establishment’s OIG. 

Counsel relied on the Board decision F.S. to support his contention that Dr. Raichman’s 

report was tainted because it was based on interference by the employing establishment. In F.S. 

the Board reversed a termination of compensation because the employing establishment violated 

regulations forbidding direct contact with a claimant’s treating physicians. The Board found that 

the employing establishment had provided edited video surveillance evidence to the attending 
6

physician which had not been accurately and reliably identified, and that appellant had not 

learned of the video evidence prior to the termination.15

In the case at hand, the employing establishment’s OIG agent did not interview 

appellant’s attending physician. Rather, he interviewed an OWCP referral physician. The agent 

did not show the physician surveillance video evidence, but merely informed him that appellant 

had been employed in multiple capacities since she stopped work at the employing 

establishment. In this case, as evidenced by the forfeiture and overpayment decisions,16 which 

were affirmed by the Board in its June 18, 2014 decision,17 appellant had regularly failed to 

report or underreported her employment status. 

The Board notes that appellant had opportunity to challenge these findings prior to the 

termination of her benefits. OWCP had provided, on June 15, 2012, a copy of Dr. Raichman’s 

supplemental report to appellant’s treating physician, appellant’s counsel at the time 

(Mr. Shapiro),18 and appellant. There was no response from appellant or counsel. OWCP 

received a subsequent report from Dr. Rosenstock on July 31, 2012, after he had been provided a 

copy of Dr. Raichman’s supplemental report. Dr. Rosenstock did not reference Dr. Raichman’s 

supplemental report nor dispute the allegations or findings. Appellant was not referred to 

Dr. Brylowski for an impartial medical examination until October 17, 2012. The Board finds 

that appellant had ample opportunity and, having been ably represented by counsel at that time, 

could have raised a timely objection to the appointment of a referee physician, but no objection 

was raised. The Board finds no flaw in the second opinion report or in using it to create a 

conflict in the medical evidence. 

The Board further finds that OWCP properly found a conflict in medical evidence and 

properly referred appellant to Dr. Brylowski to resolve that conflict. As such, he carries the 

special weight attributed to a referee physician. 

Counsel’s contended that if the Board found Dr. Raichman ineligible to serve as a second 

opinion physician, OWCP could not now revert Dr. Brylowski to a second opinion physician. 

Based on the Board’s finding that Dr. Raichman was sufficient to create a conflict, that argument 

is irrelevant. 

Finally, as to counsel’s argument that the referee report lacks rationale, the Board, in its 

June 18, 2014 decision, carefully weighed Dr. Brylowski’s December 16, 2012 report finding 

that all employment-related disability had ceased and found it to be well rationalized and, 

therefore, entitled to the special weight accorded a referee opinion.19 The Board will not 

reiterate those findings here. 

 15 F.S., Docket No. 11-0863 (issued September 26, 2012), petition for recon. denied (issued May 8, 2014). 

16 Supra note 4. 

17 Supra note 3. 

18 Supra note 7. 

19 Supra note 3. 
7

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

reconsideration to OWCP 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 it burden of proof to terminate appellant’s compensation 

benefits, effective March 10, 2013. 

ORDER 

IT IS HEREBY ORDERED THAT the December 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 23, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board