United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer 

__________________________________________ 

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Docket No. 17-0025 

Issued: July 6, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 October 7, 2016 appellant filed a timely appeal from a May 23, 2016 merit decision 

and a September 20, 2016 nonmerit 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 of proof to terminate appellant’s 

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

established that she continued to suffer residuals or disability due to her accepted lumbar sprain 

condition after April 2, 2014; and (3) whether OWCP properly denied further merit review of 

appellant’s case pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On October 19, 2012 appellant, then a 34-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she sustained mild arthritic changes in her 

lower back as a result of her employment duties. She first became aware of her condition and 

realized that it resulted from her employment on August 21, 2012. Appellant stopped work on 

August 28, 2012. 

OWCP accepted appellant’s claim for lumbar sprain. It paid disability compensation and 

placed her on the periodic rolls, effective December 4, 2012. Appellant continued to receive 

medical treatment.2

In a May 22, 2013 report, Suzanne Meeks, a nurse practitioner, indicated that she had 

evaluated appellant for back pain and headache related to a workers’ compensation claim from 

August 2012. She explained that appellant had sustained a back injury in 2005 as a result of 

lifting a mail tub at work and was off work for three and a half years. Ms. Meeks related that 

appellant returned to modified duty, but injured her back again due to the repetitive movements 

of her job. She reported that physical examination of appellant’s back demonstrated decreased 

range of motion to the lumbosacral spine with no swelling or erythema. Ms. Meeks diagnosed 

back pain and radiculopathy. 

On August 27, 2013 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and a copy of the record, to Dr. Allan Brecher, a Board-certified orthopedic surgeon and 

a second opinion examiner, to determine whether she still suffered residuals and remained 

disabled due to her work-related injury. 

In an October 14, 2013 report, Dr. Brecher indicated that he had reviewed the SOAF and 

appellant’s history. He discussed her employment duties as a mail processing clerk and her 

medical records. Dr. Brecher noted that a December 4, 2011 magnetic resonance imaging (MRI) 

scan of the lumbar spine showed moderate arthritic changes of the lower lumbar facet joints and 

slight disc degeneration at L5-S1. Upon physical examination of appellant’s lumbar spine, he 

observed tenderness along the right greater than left paraspinous muscles and some tenderness 

less than that over the sacroiliac (SI) joints. Straight leg raise testing was negative. Dr. Brecher 

opined that appellant’s back pain was more subjective than objective and diagnosed low back 

pain. He concluded that she had no residuals of her work-related lumbar sprain and that she was 

able to return to full-time work. Dr. Brecher included a work capacity evaluation form (Form 

OWCP-5), which clarified that appellant was capable of performing her regular, full-duty job. 

On February 20, 2014 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits because her work-related injury had resolved. It found that the weight of 

medical evidence rested with the October 14, 2013 second opinion report of Dr. Brecher, who 

found that her work-related lumbar condition had ceased and that she was no longer disabled as a 

result of her accepted injury. Appellant was afforded 30 days to submit additional evidence or 

argument, in writing, if she disagreed with the proposed termination. 

 2

 Appellant had a prior work injury on June 21, 2005 which was accepted for lumbar sprain under OWCP File 

No. xxxxxx420. Benefits were terminated for this injury on January 25, 2008. 
3

In a February 28, 2014 electromyography and nerve conduction velocity (EMG/NCV) 

study reports, Dr. Ryan Unger, a physical medicine and rehabilitation specialist, indicated that 

the motor and sensory NCV could not be obtained due to significant background interference, 

but that the EMG study was abnormal and revealed evidence suggestive of a right L5-S1 

radiculopathy (possibly L4 as well), which appeared chronic in nature. 

Appellant also sought treatment from Dr. Barry S. Ring, a pain management and 

anesthesiology specialist. In a March 11, 2014 note, Dr. Ring indicated that she was off work for 

ongoing symptoms of pain from her lumbar spine injury. He provided handwritten examination 

notes dated February 25 and March 1, 2014. 

In a March 19, 2014 new consultation report, Dr. Ring related that appellant had a workrelated accident on or about August 21, 2012, which she described as an aggravation of her old 

work injury. He related that she continued to complain of low back pain and he noted that she 

had not returned to work. Dr. Ring provided examination findings and diagnosed lower back 

pain, lumbar disc syndrome, and multiple areas of trigger point pain. He recommended 

continued pain management treatment and that appellant remain off work. 

OWCP finalized the termination of appellant’s wage-loss compensation and medical 

benefits, effective April 2, 2014 in a decision of that same date. It found that the weight of 

medical evidence rested with Dr. Brecher, the second opinion physician, who had determined, in 

an October 14, 2013 report, that she no longer had any residuals of the work-related lumbar 

strain and could perform the duties of her date-of-injury job without restrictions. OWCP further 

determined that the reports by Dr. Ring, appellant’s treating physician, were of little probative 

value and were insufficient to establish a conflict in medical opinion evidence. 

On October 7, 2014 OWCP received appellant’s request for reconsideration. In an 

attached statement appellant explained that, if she were to return to work her job duties would 

only aggravate and worsen her back injury. She alleged that she submitted paperwork which 

supported her claim that she still had residuals of her on-the-job injury. 

Appellant submitted a report dated March 14, 2014 by Ms. Meeks, a nurse practitioner, 

who had examined her for continued complaints of back pain. Ms. Meeks reviewed appellant’s 

history and provided findings upon physical examination. She diagnosed back pain and muscle 

spasticity. 

On May 5, 2014 appellant was treated in the emergency room by Charity Donahue, a 

nurse practitioner. In discharge records, Ms. Donahue noted diagnoses of back pain and 

lumbosacral radiculopathy. 

Dr. Ring continued to treat appellant. In April 15 and May 7, 2014 reports, he related 

appellant’s complaints of progressively worsening lower back pain, which began in 2012. Upon 

physical examination, Dr. Ring reported positive Kemp’s, Facets, Lasegues, Fabere’s, Bragard’s, 

and trigger points on the left and right of appellant’s lumbar spine. He diagnosed low back pain, 

lumbar disc syndrome without myelopathy, and cervical disc syndrome with myelopathy. 

Dr. Ring recommended that appellant remain off work until further notice. 
4

In a June 19, 2014 MRI scan of the lumbar spine, Dr. Ayis Pyrros, a diagnostic 

radiologist, observed normal lumbar lordosis and no abnormalities of alignment. He diagnosed 

stable minimal spondylitic changes of the lumbar spine with no significant interval progression, 

mild bilateral L5-S1 foraminal stenosis with mild disc desiccation and loss of distal height at L5-

S1, mild facet arthropathy seen at L4-5 and L5-S1, slightly advanced bilateral SI joint arthrosis, 

and preserved vertebral body heights. 

Appellant received treatment from Dr. Michael J. Spence, Board-certified in physical 

medicine and rehabilitation. In a September 12, 2014 report, Dr. Spence related her complaints 

of ongoing lower back pain since an August 2012 work-related injury. He reviewed appellant’s 

history and observed tenderness and limited lumbar range of motion of the lumbar spine. 

Dr. Spence diagnosed L4-5, L5-S1 facet arthritis with stenosis with sacroilitis and lumbar strain 

and lumbar facet pain. He reported that residuals of appellant’s work-related injury included 

lumbar facet pain. Dr. Spence opined that there was insufficient medical evidence available to 

assess work capacity and recommended a comprehensive functional capacity examination. 

By decision dated January 5, 2015, OWCP denied modification of its April 2, 2014 

termination decision. It found that the new medical evidence submitted was insufficient to 

overcome the weight of medical evidence given to Dr. Brecher, the second opinion examiner, 

who opined in his October 14, 2013 report that appellant no longer had residuals of her workrelated lumbar injury and was capable of returning to work. 

Appellant again requested reconsideration on June 10, 2015. She included an October 8, 

2012 lumbar spine MRI scan report by Dr. Pyrros who reported mild spondylitic changes of the 

lumbar spine with no significant interval progression, mild bilateral L5-S1 foraminal stenosis 

with mild disc desiccation and loss of disc height at L5-S1, and mild facet arthropathy scan at 

L4-5 and L5-S1. Appellant also resubmitted Dr. Unger’s February 28, 2014 EMG/NCV report. 

Dr. Bruce J. Montella, an orthopedic surgeon, began to treat appellant. In a May 22, 

2015 narrative report, he noted her complaints of bilateral low back pain following an August 21, 

2012 employment injury. Dr. Montella reviewed appellant’s history and provided findings on 

physical examination of her lumbar spine. He observed mild tenderness and lumbar spasm upon 

palpation of the lower spine. Dr. Montella reported diminished range of motion in flexion and 

extension with pain. Strength testing was 5/5 bilaterally and straight leg raise testing was 5/5 

bilaterally. Dr. Montella diagnosed work-related lumbar disc herniation. 

In a June 9, 2015 letter, Dr. Montella indicated that he initially examined appellant on 

May 22, 2015 for a work-related lumbar spine injury. He noted that she worked as a mail 

processing clerk, which required repetitive heavy lifting, bending, squatting, twisting, turning, 

and reaching. Dr. Montella indicated that examination findings of appellant’s lumbar spine 

revealed mild tenderness and spasms with no evidence of a mass. He reported that range of 

motion was diminished and painful. Straight leg raise testing was positive bilaterally. 

Dr. Montella noted that a lumbar spine MRI scan dated October 8, 2012 revealed a lumbar disc 

herniation at the L4-5 level and a February 28, 2014 EMG/NCV showed multiple disc 

herniations. He opined that appellant sustained a work-related injury due to the repetitive work 

and heavy lifting required by her job. Dr. Montella recommended that she remain off work. 
5

By decision dated September 28, 2015, OWCP denied modification of its January 5, 2015 

decision. It found that the weight of medical evidence rested with the October 14, 2013 report of 

Dr. Brecher, the second opinion physician, who found that appellant no longer had any residuals 

of her work-related lumbar strain and was capable of working full duty. OWCP found that 

Dr. Montella’s medical opinion was of little probative value because it was not based on a 

complete and accurate medical history. 

On December 29, 2015 appellant again requested reconsideration. 

In a letter dated September 28, 2015, Dr. Montella noted that appellant had a workrelated lumbar strain and he believed that a second diagnosis of lumbar disc herniation should 

accompany the lumbar strain diagnosis. He reported that he reviewed Dr. Brecher’s October 14, 

2013 second opinion evaluation and disagreed with his conclusions. Dr. Montella explained that 

appellant had objective evidence of work-related injury in the form of her history, physical 

examination findings, radiographs, clinical course, and responses to treatment. He opined that 

she suffered lumbar disc herniation and lumbar strain conditions from her employment injury 

and that she had ongoing residuals. Dr. Montella noted that it would be unreasonable for 

appellant to participate at work in any way. 

Dr. Montella continued to reiterate in an October 25, 2015 letter that appellant sustained 

an accepted lumbar sprain injury due to her duties as a mail processing clerk. He reported that 

there was an abundance of objective medical evidence, including physical examination findings, 

radiographs, clinical course, response to treatment, and serial examinations in support of the 

opinion that her lumbar disc injury/herniation was directly related to the August 21, 2012 work 

injury. Dr. Montella indicated that appellant was going to try to return to light-duty work. 

In a December 15, 2015 MRI scan of appellant’s lumbar spine, Dr. Matthew J. Evon, a 

diagnostic radiologist, reported low-grade generalized lumbar spondylosis without high-grade 

spinal stenosis. He indicated that there was early degenerative desiccation of the L5-S1 disc, but 

the other discs remained decently hydrated. 

In a December 16, 2015 letter, Dr. Montella reviewed appellant’s history of injury for her 

lumbar strain and her duties as a mail processing clerk. He indicated that he reviewed 

Dr. Brecher’s October 14, 2013 report and a December 15, 2015 MRI scan report. Dr. Montella 

reported that he disagreed with Dr. Brecher’s conclusions. He explained that, although appellant 

had ongoing residuals from her prior injury, her lumbar condition was substantially worsened by 

her most recent August 21, 2012 employment injury. Dr. Montella indicated that her prior 

lumbar sprain and more recent lumbar disc herniation were similar as they both included her 

lumbar spine and were both work-related injuries. He noted that both injuries caused past and 

ongoing problems to date. Dr. Montella explained that while sprains got better slowly over time 

disc herniations tended to linger on. He opined that appellant sustained a work-related injury on 

August 21, 2012 due to the repetitive work and heavy lifting that her job required and that it 

would be unsafe for her to return to any kind of work at this time. Dr. Montella also requested 

that appellant’s claim be accepted for lumbar disc herniation as related to her work injury on 

August 21, 2012. He noted that the lumbar disc herniations were proven through symptoms, 

examinations, and MRI scans. Dr. Montella indicated that appellant’s duration of disability was 

unknown at this time. 
6

OWCP determined that Dr. Montella’s opinion was sufficient to create a conflict in 

medical opinion with Dr. Brecher, the second opinion physician. It referred appellant to 

Dr. Donald W. Kucharzyk, D.O, a Board-certified orthopedic surgeon and impartial medical 

examiner, to resolve the conflict in medical opinion regarding whether she continued to suffer 

residuals of her accepted lumbar sprain condition and was capable of returning to work. OWCP 

also requested that he opine whether her claim should be expanded to include lumbar disc 

herniation at L4-5 and L5-S1. 

In a May 1, 2016 report, Dr. Kucharzyk indicated that he reviewed appellant’s medical 

records and provided an accurate description of her duties as a mail processing clerk. He noted 

that she tried to return to work on January 16, 2016, but was unable to continue to work due to 

the increasing intensity of pain. Dr. Kucharzyk related that appellant continued to complain of 

back pain along with soreness, stiffness, and weakness radiating into both lower extremities. 

Upon physical examination of appellant’s lumbar spine, he observed tenderness over the 

posterior-superior iliac spine, iliac crest, and over the SI joints. Dr. Kucharzyk noted normal 

alignment and no evidence of any scoliosis. He provided range of motion findings. 

Dr. Kucharzyk reported that, based upon his evaluation, clinical examination, and review of 

appellant’s history, she suffered from “preexisting degenerative joint disease with degenerative 

facet arthropathy preexisting with degenerative SI joint arthritis preexisting that were 

exacerbated by the August 21, 2012 injury.” He noted that MRI scan reports from 2011, 2014, 

and 2015 all consistently showed no acute changes with no evidence of any herniated nucleus 

pulposus. Dr. Kucharzyk indicated that appellant sustained “an acute exacerbation of facet 

arthropathy and SI joint arthritis that [wa]s now quiescent (inactive).” He opined that she had 

completely recovered from these conditions and could return to full-duty work with no 

restrictions. Dr. Kucharzyk indicated that there was no indication for any surgical intervention, 

but that appellant could benefit from injections and anti-inflammatories. 

In a decision dated May 23, 2016, OWCP denied modification of its September 28, 2016 

decision. It found that the special weight of the medical evidence rested with Dr. Kucharzyk, the 

referee medical examiner, who opined in a May 1, 2016 report that her work-related conditions 

had resolved and that she was capable of returning to full-duty work. 

On May 31, 2016 appellant again requested reconsideration. She asserted that she 

continued to suffer from preexisting degenerative joint disease with degenerative facet 

arthropathy and degenerative joint arthritis, which were exacerbated by the August 21, 2012 

employment injury. 

In a June 3, 2016 report, Dr. Montella provided an accurate description of appellant’s 

October 19, 2012 work injury and her duties as a mail processing clerk. He indicated that he had 

initially evaluated appellant on May 22, 2015 for complaints of continued back pain. 

Dr. Montella noted that previous diagnostic examination showed clear evidence of lumbar facet 

injury at L5-S1 and L4-5 and pointed out that lumbar disc herniations were different than a 

lumbar sprain. He explained that lumbar sprains improved overtime, but a lumbar disc injury 

tended to cause recurrence and ongoing problems. Dr. Montella also indicated that disc 

herniation was consistent with appellant’s examination findings of loss of range of motion and 

tenderness and spasms in her lumbar spine. He reported that there was an abundance of 

objective medical evidence to support that her work injury caused the injuries as shown on the 
7

MRI scan findings. Dr. Montella noted that he disagreed with the impartial medical examiner 

that appellant’s lumbar conditions were degenerative in nature, and not related to her 

employment. He noted that her history and examination findings were consistent with the 

traumatic nature of her injuries as reported on the MRI scans. Dr. Montella opined that appellant 

still suffered residuals of her prior lumbar sprain and more recent lumbar disc herniation. He 

also reported that it would be unreasonable and unwise for her to return to any level of work. 

By decision dated September 20, 2016, OWCP denied appellant’s May 31, 2016 

reconsideration request. It found that she had not submitted any evidence to warrant further 

merit review of her claim under 5 U.S.C. § 8128(a). OWCP determined that Dr. Montella’s 

June 3, 2016 report was cumulative and substantially similar to his previous letters, which were 

previously considered by OWCP. 

LEGAL PRECEDENT -- ISSUE 1 

According to FECA, once OWCP accepts a claim and pays compensation, it has the 

burden of justifying termination or modification of an employee’s benefits.3

 OWCP may not 

terminate compensation without establishing that the disability had ceased or that it was 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 compensation.6

 To terminate authorization for medical treatment, OWCP must 

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

require further medical treatment.7 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a lumbar strain as a result of her repetitive 

duties as a mail processing clerk. It terminated her wage-loss compensation and medical 

benefits, effective April 2, 2014 based on the October 14, 2013 second opinion report of 

Dr. Brecher. The Board finds that OWCP met its burden of proof to terminate appellant’s 

compensation on April 2, 2014. 

OWCP properly determined that Dr. Brecher’s second opinion report dated October 14, 

2013 constituted the weight of the medical evidence, as of April 2, 2014. Dr. Brecher related 

that he had reviewed the SOAF and had discussed appellant’s employment duties and her 

medical history with appellant. He noted that a December 4, 2011 MRI scan of her lumbar spine 

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

4 Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 

ECAB 541 (1986). 

5 See Del K. Rykert, 40 ECAB 284, 295-96 (1988). 

6 A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 

677 (2005). 

7 A.P., id; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002). 
8

showed moderate arthritic changes and slight disc degeneration at L5-S1. Dr. Brecher reviewed 

appellant’s examination findings and concluded that her pain complaints were more subjective 

than objective and that she no longer had any residuals of the work-related lumbar sprain. The 

Board finds that his report is entitled to the weight of the medical opinion evidence and that it 

establishes that her employment-related injury and disability had resolved. This report was 

based on a proper history of injury and found that, while appellant had subjective complaints, 

objective findings did not support residuals of the accepted lumbar sprain.8

 

The remaining contemporaneous medical evidence submitted prior to the termination is 

insufficient to overcome the weight afforded to the opinion of Dr. Brecher. Reports from 

treating physician, Dr. Ring noted appellant’s pain complaints, diagnosed lumbar disc syndrome, 

and recommended that she remain off work. He did not, however, relate that she continued to 

have residuals or disability due to the accepted lumbar sprain. As such Dr. Ring’s reports were 

of limited probative medical value.9 

OWCP also received diagnostic studies dated February 28, 2014 from Dr. Unger. While 

Dr. Unger noted that appellant’s EMG was suggestive of a chronic right L5-S1 radiculopathy, he 

again offered no opinion regarding the accepted condition of lumbar sprain.10

OWCP also received evidence from a nurse practitioner, however, this evidence is of no 

probative medical value as nurse practitioners are not considered physicians as defined under 

FECA.11 

LEGAL PRECEDENT -- ISSUE 2 

When OWCP meets its burden of proof to terminate appellant’s compensation, the 

burden shifts to appellant to establish that she has continued disability and medical residuals 

causally related to the accepted employment injury.12 

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.13 The implementing regulations 

provide that, if a conflict exists between the medical opinion of the employee’s physician and 

 8 See A.W., Docket No. 16-1606 (issued January 18, 2017). 

9 See J.P., Docket No. 16-1103 (issued November 25, 2016). In so far as Dr. Ring diagnosed lumbar disc 

syndrome, he offered no opinion on causal relationship between this diagnosis and the accepted employment injury. 

10 Id. 

11 L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P. 

Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not 

competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as 

surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners 

within the scope of their practice as defined by State law). 

12 See Daniel F. O Donnell, Jr., 54 ECAB 456 (2003). 

13 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 
9

the medical opinion of either a second opinion 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.14 When 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.15

ANALYSIS -- ISSUE 2 

Appellant submitted multiple requests for reconsideration of the termination decision and 

additional medical evidence. OWCP subsequently determined that a conflict in medical opinion 

existed between Dr. Brecher, OWCP second opinion physician who determined that she no 

longer suffered residuals or disability causally related to her accepted lumbar sprain, and 

Dr. Montella, appellant’s treating physician who opined that she continued to suffer residuals 

and disability of her accepted lumbar sprain. It referred appellant to an impartial medical 

examiner, Dr. Kucharzyk, to resolve the conflict. OWCP determined that the report of 

Dr. Kucharzyk was entitled to the special weight in denying her claim for ongoing benefits. 

The Board finds, however, that Dr. Kucharzyk’s opinion was not sufficiently rationalized 

because it was based on an inaccurate background and accordingly, failed to resolve the conflict 

in medical opinion evidence. The Board notes that appellant’s October 19, 2012 occupational 

disease claim was accepted for lumbar sprain. In its referral letter OWCP instructed 

Dr. Kucharzyk to determine whether she had residuals of her accepted work injury. In his 

May 1, 2016 report, however, Dr. Kucharzyk did not offer any opinion regarding appellant’s 

lumbar sprain condition. On the contrary, he reported that she sustained “an acute exacerbation 

of facet arthropathy and SI joint arthritis that is now quiescent (inactive).” Dr. Kucharzyk 

indicated that appellant had completely recovered from these conditions and could return to full 

duty with no restrictions. Because he failed to address her accepted lumbar condition and 

attributed her previous disability to conditions which were not accepted by OWCP, his medical 

opinion is not based on an accurate history and background and is of limited probative value.16 

The Board also notes in this regard that, while OWCP’s referral letter referred to a 

SOAF, the SOAF of record was last updated on August 27, 2013 and was not attached to the 

referral letter. Dr. Kucharzyk did not mention the SOAF in his May 1, 2016 report, nor did he 

mention knowledge of the accepted condition in this case. Furthermore, he also failed to opine 

whether appellant’s claim should be expanded to include lumbar disc herniation or the acute 

exacerbation of facet arthropathy and SI joint arthritis, now quiescent, which he diagnosed. 

 14 20 C.F.R. § 10.321. 

15 V.G., 59 ECAB 635 (2008). 

16 The Board has held that medical reports based on an incomplete or inaccurate factual and medical background 

are of limited probative value. J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 

ECAB 382 (2001). 
10

OWCP procedures provide that accepted conditions must be included in a SOAF and 

further provide that, when a referral physician renders a medical opinion based on a SOAF 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 diminished.17 When OWCP obtains an opinion 

from an impartial medical specialist for the purpose of resolving a conflict in the medical 

evidence and the specialist’s opinion requires clarification or elaboration, it must secure a 

supplemental report from the specialist to correct the defect in his original report.18 

The Board finds that Dr. Kucharzyk’s opinion was insufficient to resolve the conflict in 

medical opinion evidence regarding whether appellant continued to have residuals or disability 

due to her accepted lumbar condition after April 2, 2014.19 OWCP shall prepare an updated 

SOAF and then request that he clarify whether she had residuals of the accepted lumbar sprain 

condition or any other lumbar condition causally related to her accepted employment injury 

which continued to cause disability after April 2, 2014. After such further development as 

necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

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

compensation and medical benefits effective April 2, 2014 and that the case is not in posture for 

decision as to whether she had continuing residuals of the accepted injury after April 2, 2014.20

 17 See T.W., Docket No. 13-1706 (issued January 23, 2014). 

18 J.B., Docket No. 13-1057 (issued November 22, 2013). 

19 See L.A., Docket No. 14-1138 (issued September 9, 2014) (the Board reversed OWCP’s decision terminating a 

claimant’s wage-loss compensation and medical benefits because the referee examiner did not acknowledge the 

claimant’s accepted conditions of lumbosacral neuritis or radiculitis). 

20 Because of the disposition of the second issue, the third issue regarding appellant’s reconsideration request are 

moot. 
11

ORDER 

IT IS HEREBY ORDERED THAT the May 23, 2016 merit decision of the Office of 

Workers’ Compensation Programs is affirmed in part, and set aside in part. The case is 

remanded for further proceedings consistent with this opinion. 

Issued: July 6, 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