United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.E., Appellant

and

DEPARTMENT OF AGRICULTURE, U.S. 

FOREST SERVICE, Washington, DC, Employer

__________________________________________

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Docket No. 19-0404

Issued: July 5, 2019

Appearances: Case Submitted on the Record

Sally L. LaMacchia, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 14, 2018 appellant, through counsel, filed a timely appeal from a 

November 19, 2018 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.3

 

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.

3 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

ISSUE

The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective December 9, 2018.

FACTUAL HISTORY

On May 17, 2016 appellant, then a 57-year-old branch chief, filed a traumatic injury claim 

(Form CA-1) alleging that on April 28, 2016 he sustained injuries to his head and left shoulder 

when he fell while in the performance of duty. He noted that he is paraplegic, and fell while 

transferring from his wheelchair to the toilet. On the reverse side of the claim form the employing 

establishment indicated that appellant stopped work on April 28, 2016 and returned to work on

May 9, 2016.

On August 8, 2016 OWCP accepted appellant’s claim for laceration without foreign body 

of other part of head, and postconcussional syndrome. Appellant received continuation of pay,

beginning April 29, 2016, and OWCP placed him on the periodic compensation rolls effective 

June 16, 2016.

In a letter dated December 12, 2017, Dr. Syed Ahmed, a physical medicine and 

rehabilitation specialist, reported that, beginning December 12, 2017, appellant would be able to 

telework four hours per day, two days per week, and would remain disabled from work for the 

remaining three days a week. He noted that these restrictions were effective until appellant’s 

follow-up evaluation on January 16, 2018.

On February 26, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and his medical record, to Dr. Stuart J. Gordon, a Board-certified orthopedic surgeon, for 

a second-opinion evaluation. Contemporaneously, OWCP referred appellant, along with a SOAF 

and medical record, to Dr. Taghi Kimyai-Asadi, a Board-certified neurologist, for a secondopinion evaluation.

In a March 20, 2018 report, Dr. Kimyai-Asadi reviewed the SOAF and medical record and 

performed an examination. He indicated that appellant had been diagnosed with cerebral 

concussion and scalp laceration. Dr. Kimyai-Asadi related that on evaluation appellant showed 

overt exaggeration and fictitious type of higher cortical dysfunctions, by answering questions 

close, but not to the point of accuracy. He noted that such pattern was highly suggestive of 

malingering, and there was no evidence of significant objective findings to suggest any lingering 

effect of the accepted employment incident and concussion. Dr. Kimyai-Asadi opined that all 

employment-related conditions had resolved, and that appellant’s clinical examination, and his 

demeanor, are highly characteristic of malingering and fictitious disorder. He further opined that 

appellant did not require any additional medical treatment of his accepted employment-related 

injuries, and related that he was able to perform his federal employment duties without restrictions.

In a March 29, 2018 report, Dr. Gordon reviewed the SOAF and medical record and 

preformed an examination. He related that there were no orthopedic issues stated in the SOAF, 

but he was still able to evaluate appellant regarding his case. Dr. Gordon indicated that appellant 

had a computerized tomography (CT) scan of his head on September 21, 2016, which was

negative. He noted that on October 11, 2016 appellant was seen by Dr. Jesse Sadikman, a Board-
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certified family practitioner, for an unrelated shoulder issue. Dr. Gordon indicated that appellant 

had prior complaints involving his alleged shoulder issues. He diagnosed degenerative disease of 

the shoulders, also noted appellant’s preexisting paraplegia, childhood polio, and indicated no 

further orthopedic diagnosis.

In a report dated May 7, 2018, Dr. Ahmed indicated that appellant had persistent symptoms 

of traumatic head injury, and that he was unable to return to work due to memory loss. He further 

noted that appellant was unable to complete the cognitive tasks which were required to perform 

his federal employment duties, and related post-concussion subjective symptoms including brain 

fog, dizziness, headaches, and confusion. Dr. Ahmed diagnosed traumatic brain injury, headache, 

myofascial pain, cervicalgia, chronic pain syndrome, and complete rotator cuff tear, and indicated 

that appellant’s accepted employment-related injuries had not resolved.

On June 21, 2018 OWCP requested that Dr. Gordon provide a supplemental report 

addressing whether appellant had any orthopedic conditions that were caused or aggravated by the 

accepted April 28, 2016 employment incident. It also requested that, if he determined that an 

orthopedic condition was caused or aggravated by the accepted employment incident, he opine 

whether there continued to be residuals of the orthopedic conditions.

In a letter dated July 29, 2018, Dr. Gordon responded to OWCP’s request indicating that 

appellant did not have orthopedic conditions that had been caused or aggravated by the accepted 

April 28, 2016 employment injury. In an accompanying work capacity evaluation (Form OWCP5a), he checked the box marked “yes” when asked whether appellant was capable of performing 

his usual employment duties and also when asked whether appellant had reached maximum 

medical improvement (MMI).

On October 9, 2018 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits based on the weight of the medical evidence establishing 

that he no longer had any residuals of his accepted employment-related medical condition or 

continued disability from work as a result of the accepted April 28, 2016 employment incident. It 

afforded appellant 30 days to submit additional evidence or argument to contest the termination of 

his benefits.

In a statement dated November 8, 2018, counsel disagreed with the findings of both 

Drs. Kimyai-Asadi and Gordon.

By decision dated November 19, 2018, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective December 9, 2018. It found that the weight of 

medical evidence rested with Drs. Kimyai-Asadi and Gordon, and supported that appellant no 

longer had residuals of or disability from the accepted April 28, 2016 employment injury.
4

LEGAL PRECEDENT

According to FECA,

4 once OWCP accepts a claim and pays compensation, it bears the 

burden of proof to justify modification or termination of benefits.5 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 disability has ceased or that it is no 

longer related to the employment.6 OWCP’s burden of proof includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.7

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

entitlement to compensation for disability.8 To terminate authorization for medical treatment, 

OWCP must establish that the employee no longer has residuals of an employment-related 

condition that require further medical treatment.9

ANALYSIS

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

compensation and medical benefits, effective December 9, 2018.

In his March 20, 2018 report, Dr. Kimyai-Asadi noted appellant’s accepted conditions, but 

related that his evaluation showed overt exaggeration and fictitious type of higher cortical 

dysfunctions, which was highly suggestive of malingering. He explained that there was no 

evidence of objective findings to suggest lingering effects of the accepted employment-related 

conditions. Dr. Kimyai-Asadi opined that all employment-related conditions had resolved, and 

that appellant’s clinical examination, and his demeanor, are highly characteristic of malingering 

and fictitious disorder. He further opined that appellant did not need further medical treatment of 

his accepted employment-related injuries, and related that he was able to perform his federal 

employment duties without restrictions. 

While OWCP did not accept that appellant sustained an orthopedic condition as a result of 

his April 28, 2016 employment injury, it referred appellant to Dr. Gordon for evaluation of his 

orthopedic status. In his March 29, 2018 report, Dr. Gordon indicated that appellant had a CT scan 

of his head on September 21, 2016, which came back negative. He noted that on October 11, 2016 

appellant was seen by Dr. Jesse Sadikman, a Board-certified family practitioner, for an unrelated 

shoulder issue. Dr. Gordon indicated that appellant had degenerative disease of the shoulders, but 

 

4 Supra note 2.

5 N.G., Docket No. 18-1340 (issued March 6, 2019); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 

(2005); Paul L. Stewart, 54 ECAB 824 (2003).

6 S.B., Docket No. 18-0700 (issued January 9, 2019); see R.P., Docket No. 17-1133 (issued January 18, 2018);

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

7 N.G., supra note 5; see Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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

56 ECAB 677 (2005).

9 S.B., supra note 6; see R.P., supra note 6; James F. Weikel, 54 ECAB 660 (2003).
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that his shoulder issues were unrelated to the accepted April 28, 2016 employment incident. In his 

supplemental report, he indicated that appellant did not have any orthopedic conditions that were 

caused or aggravated by the accepted April 28, 2016 employment incident. In an accompanying 

work capacity evaluation (Form OWCP-5a), Dr. Gordon checked the box marked “yes” when 

asked whether appellant was capable of performing his usual employment duties and also when 

asked whether appellant had reached MMI.

The Board finds that OWCP properly accorded the weight of medical opinion with 

Drs. Kimyai-Asadi and Gordon who reported that appellant no longer had residuals or disability 

as a result of the April 28, 2016 employment injury. Drs. Kimyai-Asadi and Gordon based their 

opinions on a proper factual and medical history and physical examination findings and provided 

medical rationale for their opinion that appellant did not have a current residual injury or work 

limitations. They opined that appellant’s current symptoms were either malingering or fictitious, 

or unrelated to the April 28, 2016 employment incident. The Board finds that Drs. Kimyai-Asadi 

and Gordon provided well-rationalized opinions based on their examinations and the medical 

evidence of record that appellant’s accepted conditions had resolved and he was no longer disabled 

from his April 28, 2016 employment injury. Accordingly, OWCP properly relied on their 

March 20 and 29, 2018 second-opinion reports in terminating appellant’s wage-loss compensation 

and medical benefits for the April 28, 2016 employment injury.10

In his May 7, 2018 report, Dr. Ahmed indicated that appellant had persistent symptoms of 

traumatic head injury, and that he was unable to return to work due to memory loss. He further 

noted that appellant was unable to complete the cognitive tasks that he needed in his federal 

employment capacity, and related post-concussion subjective symptoms including brain fog, 

dizziness, headaches, and confusion. Dr. Ahmed diagnosed traumatic brain injury, headache, 

myofascial pain, cervicalgia, chronic pain syndrome, and complete rotator cuff tear, and indicated 

that his accepted employment-related incident had not resolved. However, he did not opine 

through rationalized medical opinion evidence, that appellant continued to have residuals or 

disability due to his accepted April 28, 2016 employment injury. Where an employee claims that 

a condition not accepted or approved by OWCP was due to an employment injury, he or she bears 

the burden of proof to establish that the condition is causally related to the employment injury.11 

Dr. Ahmed’s opinion regarding causation is conclusory in nature as he failed to explain how the 

April 28, 2016 employment injury resulted in additional diagnosed conditions.12 The Board finds, 

therefore, that this medical evidence is insufficient to overcome the weight of the medical evidence 

given to the second-opinion evaluations in terminating appellant’s wage-loss compensation and

medical benefits for the April 28, 2016 employment injury.13

 

10 N.G., supra note 5; see A.F., Docket No. 16-0393 (issued June 24, 2016).

11 D.H., Docket No. 18-1159 (issued February 15, 2019).

12 K.K., Docket No. 18-1209 (issued March 7, 2019).

13 See N.G., supra note 5; see also J.P., Docket No. 16-1103 (issued November 25, 2016).
6

CONCLUSION

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

compensation and medical benefits, effective December 9, 2018.

ORDER

IT IS HEREBY ORDERED THAT the November 19, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 5, 2019

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