United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.N., Appellant 

and 

DEPARTMENT OF JUSTICE, FEDERAL 

CORRECTIONAL INSTITUTE, Fort Dix, NJ, 

Employer 

__________________________________________ 

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Docket No. 15-1019 

Issued: March 29, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

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 April 2, 2015 appellant, through counsel, filed a timely appeal from a January 27, 

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 and medical benefits effective July 17, 2014. 

On appeal, appellant’s counsel contends that the weight of the medical evidence is not 

represented by the medical opinion of the impartial medical examiner as it is not well reasoned 

and contains numerous errors. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. On June 9, 2005 appellant, then a 43-

year-old accounting technician, filed a traumatic injury claim (Form CA-1) alleging that, while 

walking back from the employing establishment’s east compound, she twisted her ankle on 

stones that were laying on the sidewalk. OWCP accepted appellant’s claim for sprain/strain of 

the left ankle. It paid wage-loss compensation and medical benefits, but terminated all 

compensation benefits effective June 30, 2012 as it determined that appellant had no residuals of 

the injury-related medical condition. Appellant requested a hearing. By decision dated 

January 11, 2013, an OWCP hearing representative affirmed this decision. 

Appellant appealed to the Board on June 4, 2013.2 By decision dated March 5, 2014 the 

Board reversed the termination of benefits. The Board noted that in terminating appellant’s 

benefits, OWCP relied upon the opinion of the second opinion physician, Dr. Stanley Askin, a 

Board-certified orthopedic surgeon, who opined that appellant was fully recovered from her 

employment injury. However, the Board found that Dr. Askin’s opinion conflicted with the 

opinion of appellant’s treating podiatrist, Dr. Joseph A. Megara, who reported that appellant was 

still being treated for a high-grade ankle sprain and that she should continue in her current 

sedentary position. The Board found that at the time OWCP terminated appellant’s 

compensation there was an unresolved conflict in the medical evidence and that therefore, 

OWCP had not met its burden of proof to terminate appellant’s benefits. The facts as set forth in 

the Board’s prior decision are incorporated herein by reference.3

On April 2, 2014 OWCP referred appellant to Dr. Samuel Epstein, a Board-certified 

osteopath, for an impartial medical examination. In a May 19, 2014 report, Dr. Epstein reviewed 

appellant’s employment and medical history, including prior magnetic resonance imaging (MRI) 

scans and x-rays, and conducted a physical examination noting that there was tenderness to 

palpitation over the lateral collateral ligaments, syndesmosis and deltoid ligaments, tenderness to 

palpation over the Achilles tendon insertion into the calcaneus, and tenderness to palpitation over 

the medial and lateral malleolus. He checked the active range of motion of the ankle and 

provided measurements for range of motion and girth. 

Dr. Epstein diagnosed mild high left ankle sprain which was directly caused by the 

June 9, 2005 employment incident, mild recurrent high left ankle sprain on or about August 6, 

2005 which was a temporary aggravation of the high left ankle sprain, and iliotibial band 

syndrome with trochanteric bursitis of the right hip not related to the June 9, 2005 injury. He 

opined that appellant had fully recovered from the effects of the June 9, 2005 employment 

injury. Dr. Epstein noted that when appellant was unaware of being watched, her gait was 

normal. He noted no calf atrophy to suggest significant functional deficit in the left foot and 

ankle. Dr. Epstein noted that since her gait was normal, she was able to dorsiflex the left ankle, 

despite not dorsiflexing the left ankle when asked during examination. He also noted that x-rays 

of the left ankle taken in the office compared to x-rays previously taken of her right ankle 

showed no significant post-traumatic arthritis and no calcifications within the syndesmotic 

ligament. Dr. Epstein noted that appellant did complain of post-traumatic chronic pain but that 

 2

 Docket No. 13-1438 (issued March 3, 2014). 

3 Id. 
3

this could not be verified due to symptom magnification. He stated that decreased range of 

motion of her left ankle could not be verified due to sub-maximal effort. Dr. Epstein did note 

swelling of the left ankle and left calf, but there was no evidence to support that it was related to 

the employment injury of June 9, 2005. He did not observe tendon injuries or medial or lateral 

collateral ligament injuries on either of the MRI scans. Dr. Epstein opined that no additional 

medical treatment was necessary. He indicated that appellant had reached maximum medical 

improvement by February 6, 2006 (three to six months after recurrent left high ankle sprain). 

On June 12, 2014 OWCP proposed to terminate appellant’s medical and wage-loss 

compensation benefits as the weight of the medical evidence established that appellant no longer 

had any residuals or continued disability from work as a result of the June 9, 2005 employment 

injury. 

By letter dated June 18, 2014, appellant’s counsel objected to the proposed termination. 

By letter dated June 19, 2014, OWCP asked Dr. Epstein to respond to certain questions. 

Dr. Epstein submitted handwritten responses, referring OWCP to appendixes of his report with 

regard to measurements for loss of motion or atrophy. He also responded that the swelling in 

appellant’s left ankle and calf was not due to her injury, noting normal gait and minimal findings 

on her MRI scan. Dr. Epstein further opined that appellant had recovered from her employment 

injury, noting that mild spasms as evinced by MRI scan should heal within three to six months. 

On July 14, 2014 Dr. Epstein submitted typed responses to OWCP’s queries. He again 

referred OWCP to the appendix of his May 19, 2014 report. With regard to the swelling in 

appellant’s left ankle and calf and decreased sensation in her left lower extremity, Dr. Epstein 

provided further rationale to explain why these findings were not the result of her work injury. 

Specifically, he noted the paucity of radiographic findings, the subjectivity of the decreased 

sensation, the lack of the decreased sensation following a specific peripheral nerve distribution, 

and the presence of magnification signs. Dr. Epstein noted that these findings made it more 

likely than not that the swelling was due to other etiologies such as venous or lymphatic issues. 

He also noted decreased sensation due to magnification symptoms or peripheral neuropathy. 

Dr. Epstein concluded that the swelling in the left calf and ankle and decreased sensation are 

more likely than not unrelated to the accident of June 9, 2005 as peripheral neuropathy is not 

caused by trauma. He further explained his conclusion that appellant had recovered from the 

employment injury by noting that mild sprains, such as those indicated by the MRI scan and lack 

of post-traumatic arthritis or calcifications within the syndesmotic ligament (nine years after the 

injury) and by x-rays, fully heal within three to six months after injury. 

By decision dated July 17, 2014, OWCP terminated appellant’s compensation and 

medical benefits effective that date. 

On July 22, 2014 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. At the hearing held on November 24, 2014, appellant’s counsel argued 

that Dr. Epstein tested range of motion passively, not actively. He also argued that Dr. Epstein 

did not indicate that the accepted condition was resolved. Counsel further argued that when 

Dr. Epstein looked at x-rays he noted no significant calcification or significant post-traumatic 

arthritis of the left ankle, which indicates some residuals. He argued that Dr. Epstein gave no 

rationale for his conclusion that the swelling in appellant’s left ankle and calf and decreased 
4

sensation were unrelated to the accident. Counsel concluded that for these reasons, Dr. Epstein’s 

report should not carry the weight of evidence. 

By decision dated January 27, 2015, the hearing representative affirmed OWCP’s 

July 17, 2014 termination of benefits. 

LEGAL PRECEDENT 

Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or 

lessened in order to justify termination or modification of compensation benefits.4

 Following a 

proper termination of compensation benefits, the burden of proof shifts back to claimant to 

establish continuing employment-related disability.5

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

entitlement to compensation for disability.6

 To terminate authorization for medical treatment, 

OWCP must establish that appellant no longer has residuals of an employment-related condition 

which requires further medical treatment.7

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.8

 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 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.9 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.10

ANALYSIS 

OWCP accepted appellant’s claim for a sprain/strain of the left ankle causally related to 

an employment injury that occurred on June 9, 2005. However, it terminated appellant’s medical 

and compensation benefits effective July 17, 2014. The Board finds that OWCP met its burden 

of proof to terminate appellant’s compensation and medical benefits based on the wellrationalized opinion of the impartial medical examiner, Dr. Epstein. 

 4 Mohamed Yunis, 42 ECAB 325, 334 (1991); see also J.P., Docket No. 13-1049 (issued August 16, 2013). 

5 John F. Glynn, 53 ECAB 155 (2001). 

6 See T.P., 58 ECAB 524 (2007). 

7 See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005). 

8

 5 U.S.C. § 8123(a).

9

 20 C.F.R. § 10.321. 

10 Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001). 
5

When issuing the March 5, 2014 decision reversing the termination of benefits, the Board 

found that the relevant and probative medical evidence was in equipoise, that OWCP should 

have referred appellant’s case to an impartial medical examiner, and that as OWCP failed to 

resolve the conflict in medical evidence, it did not meet its burden of proof in terminating 

appellant’s wage-loss compensation and medical benefits. 

Upon return of the case record, OWCP referred appellant to Dr. Epstein to resolve the 

conflict in the evidence. Dr. Epstein reviewed appellant’s employment history and medical 

record, including prior x-rays and MRI scans and submitted responses to questions asked by 

OWCP. He diagnosed mild high left ankle sprain directly caused by the employment injury and 

mild recurrent high level ankle sprain on or about August 6, 2005 which was a temporary 

aggravation of the existing mild high left ankle sprain. Dr. Epstein opined that no further 

medical treatment was necessary for appellant’s related condition. He also opined that appellant 

had fully recovered from the effects of the June 9, 2005 employment injury. In support of his 

conclusions, Dr. Epstein noted that when appellant was unaware that she was being watched, her 

gait was normal. He noted no calf atrophy to suggest significant functional deficit in the left foot 

and ankle. Dr. Epstein also reviewed appellant’s x-rays of the left ankle and found no significant 

post-traumatic arthritis and no calcifications within the syndesmotic ligament. He opined that 

the swelling in appellant’s left ankle and calf and decreased sensation in her left lower extremity 

was unrelated to the employment injury. In further support of his conclusion that appellant had 

recovered from her employment injury, Dr. Epstein noted that mild sprains, such as those 

evinced by appellant’s objective tests, fully heal within three to six months after the injury. 

When a case is referred to an impartial medical examiner to resolve a conflict, the 

resulting medical opinion, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.11 The Board finds that OWCP properly deferred to 

Dr. Epstein’s findings in concluding that appellant’s compensation and medical benefits should 

be terminated. The impartial medical examiner provided a well-reasoned report based on a 

proper factual and medical history. Additionally, Dr. Epstein conducted a thorough physical 

examination of appellant, and his reports included detailed findings and medical rationale 

supporting his opinion.12 As the impartial medical examiner, Dr. Epstein’s opinion was entitled 

to special weight.13

Counsel’s arguments that Dr. Epstein’s opinion is insufficient to represent the weight of 

the evidence are unpersuasive. Counsel contends that Dr. Epstein only measured passive loss of 

motion in the left ankle. Dr. Epstein did take range of motion measurements, but noted that 

appellant provided a sub-maximal effort on examination. His statement that the x-rays showed 

no significant post-traumatic arthritis or calcifications does not logically infer that there was 

some residuals. Furthermore, Dr. Epstein clearly noted in his reports that appellant had no posttraumatic arthritis and that the employment injury would have resolved within three to six 

months based on appellant’s diagnostic tests. Finally, contrary to counsel’s assertions, he 

explained his conclusions as to why the swelling in appellant’s left ankle and calf and decreased 

sensation in her left lower extremity were not the result of the employment injury when he noted 

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

12 See D.S., Docket No. 13-1326 (issued November 8, 2013). 

13 Supra note 11. 
6

that paucity of radiographic findings, the subjectivity of decreased sensation, and the presence of 

magnification issues. Dr. Epstein opined that all of these factors made it more likely that these 

symptoms were due to other etiologies such as venous or lymphatic issues. He also explained 

that the swelling was more likely unrelated to the employment injury as peripheral neuropathy is 

not caused by trauma. Dr. Epstein also indicated that appellant’s injury occurred in 2005 and 

that her injuries would have been expected to have resolved within three to six months. 

Dr. Epstein, the impartial medical examiner, provided a rationalized medical opinion in 

this case. Therefore, the Board finds that OWCP met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits as Dr. Epstein concluded that no further medical 

treatment was necessary and that appellant had fully recovered from the effects of the June 9, 

2005 injury. 

CONCLUSION 

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

compensation and medical benefits effective July 17, 2014. 

ORDER 

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

Compensation Programs dated January 27, 2015 is affirmed. 

Issued: March 29, 2016 

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