United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.S., Appellant

and

DEPARTMENT OF AGRICULTURE, 

U.S. FOREST SERVICE, Albuquerque, NM, 

Employer

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Docket No. 17-1181

Issued: November 14, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 21, 2017 appellant, through counsel, filed a timely appeal from a December 27, 

2016 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 benefits, effective December 28, 2016, as he no longer had residuals or disability 

due to his accepted lumbar and left hip conditions.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 21, 2013 appellant, then a 48-year-old forestry technician, filed an 

occupational disease claim (Form CA-2) alleging that he sustained back problems as a result of 

his federal employment duties. He first became aware of his condition on August 3, 2010 and 

realized it resulted from his employment on August 10, 2010. OWCP accepted appellant’s claim 

for lumbar degenerative disc disease and left hip sprain.

Appellant stopped work on October 24, 2013 and filed various claims for wage-loss 

compensation (Form CA-7). OWCP paid medical and wage-loss compensation benefits on the 

supplemental rolls from October 24, 2013 through March 8, 2014. It placed appellant on the 

periodic rolls effective March 9, 2014.

On April 9, 2014 appellant underwent left hip arthroscopy with debridement of labrum 

surgery.

OWCP referred appellant’s case, along with a statement of accepted facts (SOAF) and a 

copy of the record, to Dr. Kirpal S. Sidhu, a Board-certified orthopedic surgeon and second

opinion examiner, on April 11, 2016 to determine whether he still suffered residuals and 

remained disabled due to his work-related injury.

On April 11, 2016 OWCP issued a letter to appellant and his then-counsel informing him 

that an appointment was made for him to obtain a second opinion assessment of his work-related 

condition. It also notified him that a surveillance video for the dates April 27, 30, May 15 to 16, 

and June 24 to 26, 2015 was being sent to the physician for review as part of his second opinion 

evaluation.

In a May 6, 2016 report, Dr. Sidhu indicated that he had reviewed the SOAF and 

appellant’s history. He discussed appellant’s employment duties as a forestry technician and his 

medical records. Dr. Sidhu noted that appellant’s left hip had improved, but he still complained 

of worsening lower back pain radiating down the right lower extremity. Upon physical 

examination of appellant’s cervical spine, he reported tenderness in the right transverse processes 

and brachial plexus. Deep tendon reflexes were positive on both sides. Dr. Sidhu indicated that 

examination of appellant’s thoracic lumbar spine showed tenderness in the L5 spinous process 

and in the lower lumbar paraspinal muscles. He provided range of motion findings and 

subjective sensation dullness in appellant’s right foot and leg. Examination of appellant’s left

hip showed mild tenderness in the muscle of the upper lateral thigh. Dr. Sidhu diagnosed 

degenerative disc disease of the lumbar spine, spondylolisthesis at L5-S1 with status post left hip 

surgery, right shoulder post rotator cuff repair, and left shoulder impingement decompression, 

well functioning.

Dr. Sidhu reported that appellant’s left hip condition had resolved and that appellant 

reached maximum medical improvement (MMI) at 12 weeks from the date of injury. He noted

that appellant’s accepted degenerative disc condition at L4-5 was still present, although it was 

just “part of a generalized degenerative disc disease of [the] spine.” Dr. Sidhu noted that the 

July 9, 2015 lumbar spine computerized tomography (CT) myelogram report confirmed 

objective findings of L4-5 degenerative disc disease. He explained that appellant’s degenerative 
3

disc disease was “just part of a generalized degenerative disc disease which is present at other 

levels also and it is a progressive disease with varying consequences.” Dr. Sidhu opined that 

appellant was able to perform the duties of a forestry technician from the point of view of the 

accepted conditions as listed in the SOAF. He noted, however, that appellant had nonworkrelated conditions of generalized degenerative disc disease, spondylolisthesis at L5-S1, and pars 

defect at L5. Dr. Sidhu indicated that some people could function well with these conditions, but 

others could have a lot of symptoms. He related that, according to the surveillance video, 

appellant was capable of handling fairly tough situations so he should be able to work. Dr. Sidhu 

noted, however, that appellant’s nonwork-related condition of spondylolisthesis could produce 

symptoms of sciatica, which at times could make it difficult to work in hazardous conditions. He 

provided a work capacity evaluation form which indicated that appellant was capable of working 

with limitations. Dr. Sidhu indicated that appellant’s limitations were for his nonaccepted 

conditions.

On June 2, 2016 OWCP proposed to terminate appellant’s wage-loss compensation 

because he no longer had continuing disability from work. It found that the weight of medical 

evidence rested with the May 6, 2016 report of Dr. Sidhu who found that his work-related 

lumbar and hip condition had ceased and that he was no longer disabled from all work as a result 

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

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

In a June 29, 2016 report, Dr. Robert W. Macht, a general surgeon, indicated that 

appellant worked for the employing establishment from 1998 to 2004. He related appellant’s 

complaints of continued moderate back pain, numbness about the right great toe and occasionally 

the entire foot, and mild left hip pain. Dr. Macht indicated that appellant could not lift more than 

10 pounds, had problems with prolonged sitting and walking, could only drive for 1 hour, and 

could only walk for 30 minutes. Upon physical examination, he reported that appellant walked 

with a mild-to-moderate limp, favoring the right leg. Examination of appellant’s lumbar spine 

showed tightness and slight pain with motion of his back. Dr. Macht noted that range of motion 

of appellant’s back showed limited flexion to 30 degrees, extension to 6 degrees, and lateral 

bending to 1.5 degrees bilaterally. Straight leg raise testing was negative. Dr. Macht reported 

decreased sensation to light touch about the right great toe. He indicated that examination of 

appellant’s left hip showed pain with resistance against active motion and minimal weakness. 

Dr. Macht diagnosed musculoligamentous sprain of back with spondylolisthesis and 

degenerative disc disease.

Dr. Macht opined that there was a causal connection between appellant’s degenerative 

disc disease, spondylosis, and spondylolisthesis with his work-related activities. He explained 

that it was frequently noted in literature that frequent back stress could lead to degenerative disc 

disease, spondylosis, and spondylolisthesis. Dr. Macht indicated that appellant had repetitive 

stress on his back due to his work activities, including prolonged walking and standing, and 

worked with a 45-pound fire pack. He found that appellant was permanently and totally disabled 

from his federal employment as a fire forestry technician. Dr. Macht noted that there were no 

restrictions which would enable him to perform his work activities. He related that a reported 

video showed him doing certain work activities, which would not change the concept of the 

cause or etiology of appellant’s medical condition.
4

On July 1, 2016 OWCP received a brief from appellant’s then-counsel who noted that it 

was unlawful for special investigators employed by an agency’s Office of the Inspector General 

(OIG) to ask physicians about a claimant’s work tolerance limitations. He indicated that special 

investigators could not discuss investigations and share evidence with doctors. Counsel argued 

that when a surveillance video is offered for the purpose of gaining a medical opinion, the 

employee must be notified, provided a copy if requested, and offered an opportunity to explain 

the events depicted. He alleged that OWCP did not provide notice of the surveillance video to 

appellant before providing it to Dr. Sidhu, nor provide an opportunity for appellant to obtain a 

copy of the unedited video and make a response. Counsel contended that the fact that OWCP did 

not inform appellant of the existence of this video, but sent it immediately to the SECOP was an 

indication that OWCP intentionally sought to evade honoring appellant’s legal rights. He 

reported that the Board had repeatedly reversed proposed terminations based on video 

surveillance as part of an OIG investigation and cited to previous Board decisions.

Counsel also asserted that Dr. Sidhu’s April 6, 2016 second opinion examination and 

report was insufficient to establish that appellant’s accepted lumbar and left hip conditions had 

resolved. He noted that there was no discussion in Dr. Sidhu’s report of the medical evidence to 

support his opinion. Counsel alleged that Dr. Sidhu’s comments strongly indicate that his 

opinion was due solely to reviewing the undisclosed video, and not a result of any objective 

medical tests or examination. He further reported that he was providing a new report from

Dr. Macht that was in direct contrast to Dr. Sidhu’s medical opinion. Counsel asserted that

Dr. Macht provided a detailed explanation for his conclusion that appellant was permanently 

disabled as a result of his work-related conditions.

In a July 3, 2016 letter, counsel noted that appellant’s employing establishment was 

falsely claiming or implying that he was not a firefighter. He indicated that he was attaching 

copies of appellant’s official government records, which showed that appellant performed 

firefighting duties at all times prior to developing his current disabilities. Counsel explained that 

there was no job title in the forest service called a “firefighter,” but that all firefighters were 

considered forestry technicians and were trained to perform such functions. He provided training 

requirements, competency descriptors, and position descriptions for a fire engine supervisor, 

engine module supervisor, and supervisory fire engine operator.

Appellant received medical treatment from Dr. Clement K. Jones, an orthopedic surgeon. 

In an August 5, 2016 progress note, Dr. Jones reviewed the medical treatment appellant had 

received for his accepted lumbar and left hip conditions and noted that appellant’s chief 

complaint was of low back pain and right leg sciatic pain. Upon examination of appellant’s 

lumbar spine, he reported slight tenderness to palpation in the midline and paraspinally on the 

right thoracolumbar spine and painful percussive tenderness. Dr. Jones provided range of 

motion findings and noted that appellant’s gait was functionally normal, but with a slight limp on 

the right. Bilateral lower extremity muscle strength revealed no obvious deficit except for 

subjectively reported increased back pain. Dr. Jones indicated that seated active straight leg raise 

and slump test were positive bilaterally and supine passive straight leg raise test was positive on 

the right. He diagnosed spondylolisthesis at L5-S1 level, spondylolysis of the lumbosacral 

region, spondylosis of the lumbar region, lumbar disc degeneration, retrolisthesis, and chronic 

pain disorder. Dr. Jones recommended updated diagnostic tests.
5

In a December 9, 2016 electromyography and nerve conduction velocity (EMG/NCV) 

study report of appellant’s bilateral lower extremities, Dr. Kevin M. Satow, Board-certified in 

physical medicine and rehabilitation, noted normal latency and amplitude responses, normal 

distal latencies, amplitudes, and conduction velocity responses, normal insertional activity, and 

no sustained fibrillations or positive sharp waves noted. He explained that there were 

electromyography findings consistent with early axonopathy in the mid and lower paralumbar 

region, but no active denervation noted in the lower extremity.

OWCP finalized the termination of appellant’s wage-loss compensation benefits,

effective December 28, 2016, in a decision dated December 27, 2016. It found that the weight of 

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

in a May 6, 2016 report, that appellant no longer had any residuals of or disability due to the 

work-related lumbar and left hip conditions.

LEGAL PRECEDENT

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.2 OWCP may not 

terminate compensation without establishing that the disability had ceased or that it was no 

longer related to the employment.3 Its burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.4

ANALYSIS

OWCP accepted that appellant sustained lumbar degenerative disc disease and left hip 

sprain as a result of his repetitive duties as a forestry technician. It terminated his wage-loss 

compensation, effective December 28, 2016, based on the May 6, 2016 second opinion report of

Dr. Sidhu. The Board finds, however, that OWCP did not meet its burden of proof to terminate 

appellant’s wage-loss compensation because Dr. Sidhu’s opinion was not sufficiently 

rationalized.5 

In a May 6, 2016 report, Dr. Sidhu indicated that he had reviewed the SOAF and 

appellant’s history. He provided physical examination findings and diagnosed degenerative disc 

disease of the lumbar spine, spondylolisthesis at L5-S1 with status post left hip surgery, right 

shoulder post rotator cuff repair, and left shoulder impingement decompression, well

functioning. Dr. Sidhu reported that appellant’s left hip condition had resolved, but indicated 

that his degenerative disc condition at L4-5 was still present. He explained that appellant’s 

degenerative disc disease was “just part of a generalized degenerative disc disease which is 

present at other levels also and it is a progressive disease with varying consequences.” The 

 

2

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

3

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

ECAB 541 (1986).

4

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

5

See L.P., Docket No. 08-1648 (issued August 28, 2009). 
6

Board finds that Dr. Sidhu did not unequivocally conclude that appellant no longer had residuals 

of his accepted lumbar degenerative disc condition. On the contrary, Dr. Sidhu reported that 

appellant’s accepted lumbar condition was still present. Although he attributed appellant’s 

degenerative disc disease to a generalized and progressive disease, the Board finds that he did 

not provide a definitive, well-rationalized conclusion to establish that appellant’s accepted 

lumbar condition had ceased and that he no longer had residuals of or disability related to his 

work-related lumbar condition. Medical evidence that states a conclusion, but does not offer any 

rationalized medical explanation regarding the cause of an employee’s condition is of limited 

probative value on the issue of causal relationship.6 Dr. Sidhu did not provide any reasoning to 

support his brief statement that appellant’s work-related disability had ceased.7

The Board finds, therefore, that OWCP erred by terminating appellant’s wage-loss 

compensation benefits, effective December 28, 2016, based on the second opinion report of

Dr. Sidhu. The Board shall reverse OWCP’s decision terminating appellant’s wage-loss 

compensation benefits. 

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation benefits. 

 

6

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

7

See A.R., Docket No. 12-0443 (issued October 9, 2012).
7

ORDER

IT IS HEREBY ORDERED THAT the December 27, 2016 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: November 14, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board