United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, New York, NY, Employer

__________________________________________

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Docket No. 17-1992

Issued: September 12, 2018

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 September 25, 2017 appellant filed a timely appeal from a July 6, 2017 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 to 

consider the merits of the case.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 20, 2017; and (2) whether appellant has 

met her burden of proof to establish any continuing disability or medical residuals on or after 

March 20, 2017 causally related to her January 20, 1993 employment injury.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as presented 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On January 21, 1993 appellant, then a 33-year-old ultrasound technician, filed a traumatic 

injury claim (Form CA-1) alleging that, on January 20, 1993, she injured her right shoulder, and 

her thoracic and cervical spine while transferring a patient from his bed to a wheelchair. By 

decision dated February 11, 1993, OWCP accepted her claim for right shoulder strain, cervical 

radiculitis, and lumbar sprain. 

Appellant filed a notice of recurrence of disability (Form CA-2a) on July 5, 1994 alleging 

that she sustained a recurrence of low back pain, leg pain, and neck pain causally related to her 

January 20, 1993 employment injury on March 8, 1994. She stopped work on April 3, 1994. 

Appellant returned to work and filed a second notice of recurrence on July 19, 1994. OWCP 

accepted her recurrences of disability on July 17, 1995 and she received wage-loss compensation 

for all periods of temporary total disability.

The employing establishment provided appellant with a job offer in November 1996. 

Appellant declined the job offer on November 6, 1996, claiming that she was totally disabled from 

work. In a letter dated January 9, 1997, OWCP informed her that the job offered by the employing 

establishment was suitable work under 5 U.S.C. § 8106(c), informed her of the consequences of 

this penalty provision, and afforded her 30 days to accept the position or provide her reasons for 

refusal. By decision dated March 11, 1997, it terminated appellant’s wage-loss compensation and 

entitlement to schedule award benefits.

Appellant appealed the March 11, 1997 decision to the Board. In its April 22, 1999 

decision,3the Board reversed the March 11, 1997 OWCP decision, finding that OWCP failed to 

meet its burden of proof to terminate appellant’s wage-loss compensation and entitlement to 

schedule award benefits, effective March 11, 1997. Following the Board’s April 22, 1999 

decision, OWCP reentered appellant on the periodic rolls, effective March 30, 1997.

On August 12, 1999 appellant underwent electromyogram (EMG) and nerve conduction

velocity (NCV) studies which demonstrated chronic left C6, right L3-4, and right L5-S1 

radiculopathy. Beginning on August 30, 1999 and continuing through March 25, 2008, appellant’s 

attending physician, Dr. Richard A. Pearl, a neurologist, provided a series of medical reports 

diagnosing chronic cervical and lumbosacral radiculitis and radiculopathy as well as chronic 

cervical and lumbosacral sprains due to her accepted January 20, 1993 employment injury. He 

opined that appellant was totally disabled and that appellant’s June 18, 2001 magnetic resonance 

imaging (MRI) scan was unremarkable.

 

2 Docket No. 97-1711 (issued April 22, 1999).

3

Id.
3

On April 27, 2009 and continuing through December 10, 2013, Dr. Pearl repeated his 

diagnoses of cervical and lumbosacral radiculopathy and his finding of total disability. He 

described appellant’s January 20, 1993 employment injury and her ongoing conditions of chronic 

cervical and lumbosacral radiculopathy. Dr. Pearl opined that appellant was totally disabled from 

work and noted that she could potentially become worse and develop a degenerative condition of 

the spine.

In a letter dated December 27, 2013, OWCP referred appellant, a SOAF, and list of 

questions, for a second opinion evaluation with Dr. Leon Sultan, a Board-certified orthopedic 

surgeon to determine the status of appellant’s accepted conditions and disability. In his January 14, 

2014 report, Dr. Sultan reviewed the SOAF and discussed appellant’s history of injury. He 

performed a physical examination and found that appellant had no findings on physical 

examination in her cervical spine, right shoulder, or lumbar spine. Dr. Sultan concluded that 

appellant had no objective work-related disability. He completed a work restriction evaluation 

(Form OWCP-5) and found that appellant could work eight hours a day without restrictions.

On June 17, 2014 Dr. Pearl completed a narrative report and found that appellant had 

normal motor examination, gait, and sensory examination. He found pain on palpation of the 

paraspinal muscles in the cervical lumbosacral region. Dr. Pearl noted that a cervical spine MRI 

scan demonstrated a herniated disc at C5-6 and a bulging disc at C4-5. He diagnosed chronic 

cervical and lumbosacral radiculopathy. Dr. Pearl opined that appellant’s condition was causally 

related to her accepted employment injury and found that she was totally disabled. He continued 

to support these diagnoses from September 2014 through July 1, 2015. 

On August 5, 2014 OWCP found a conflict of medical opinion evidence between Dr. Pearl 

and Dr. Sultan regarding appellant’s ongoing conditions and disability. In a letter of even date, it

referred appellant, a SOAF, and a list of questions for an impartial medical examination with

Dr. Richard Parker, a Board-certified orthopedic surgeon. 

In a letter dated July 28, 2015, the employing establishment noted that appellant was 

scheduled for an impartial medical examination on August 20, 2014, but that there was no evidence 

in the file that this examination was ever performed. On November 5, 2015 OWCP responded to 

the employing establishment and alleged, “Due to a computer error the appointment has not been 

scheduled.” However, the report of Dr. Parker’s independent medical August 20, 2014 

examination was not received by OWCP until approximately one year later, on 

November 10, 2015. 

In that report dated August 20, 2014, Dr. Parker described appellant’s history of injury, 

reviewed her medical records and diagnostic studies, and also performed a physical examination. 

He diagnosed chronic cervical and lumbar derangement and myofascial strain, as well as disc 

herniations in the cervical and lumbar spine. Dr. Parker opined that appellant could return to light 

duty with no lifting, pushing, or pulling in excess of 15 pounds. He concluded that appellant could 

perform a sedentary job if given the opportunity to get up every 30 minutes for 5 minutes to walk 

and stretch. Dr. Parker opined that there was a direct causal relationship between appellant’s 

cervical and lumbar spine conditions and the January 20, 1993 employment injury.
4

OWCP prepared a new SOAF on December 7, 2015. On December 9, 2015 it referred 

appellant, the December 7, 2015 SOAF, and a list of questions for an additional second opinion 

evaluation examination with Dr. Sultan. In the December 7, 2015 SOAF, OWCP indicated that 

appellant was “under the care of” Dr. Pearl and of Dr. Parker, who was not identified as an IME.

It listed appellant’s other second opinion examinations separately.

In his January 15, 2016 report, Dr. Sultan noted reviewing additional reports from Dr. Pearl 

and Dr. Parker’s August 20, 2014 “independent orthopedic examination.” He further noted that in 

his prior examination on January 14, 2014 he found normal physical findings with respect to her 

cervical and thoracolumbar spine as well as her right shoulder. Dr. Sultan performed an additional 

physical examination and found no muscle spasm in appellant’s neck or back, no trigger points, 

and symmetrical reflexes with normal sensory testing. With regard to appellant’s right shoulder, 

he noted that range of motion was equal with the left and that impingement signs were negative. 

Dr. Sultan concluded that appellant’s accepted conditions had resolved and that appellant had no 

ongoing orthopedic impairments due to these conditions requiring medical treatment. He further 

found no ongoing disability due to the January 20, 1993 employment injury. Dr. Sultan also found 

that appellant could return to her date-of-injury position without residuals.

Dr. Pearl, on May 3, 2016, opined that appellant had loss of range of motion of the cervical 

and lumbar spine as well as pain on palpation of the paraspinal muscles. He diagnosed cervical 

and lumbosacral radiculopathy and opined that these conditions were causally related to her 

employment injury. Dr. Pearl found that appellant could not return to work in her date-of-injury 

position.

In a May 6, 2016 note, the employing establishment offered to return appellant to her dateof-injury position. On May 18, 2016 Dr. Pearl opined that based on his correlation of appellant’s 

history, physical, and abnormal laboratory data, she was unable to return to work. He diagnosed 

the additional condition of chronic pain syndrome and found that appellant was totally disabled.

OWCP, on May 31, 2016, found a conflict of medical opinion evidence between Drs. Pearl 

and Sultan on the issue of whether appellant had any continuing disability or medical residuals as 

a result of her accepted employment injuries. In a letter dated July 1, 2016, it referred appellant, 

the December 7, 2015 SOAF, and a list of questions for an additional impartial medical 

examination with Dr. Bradley White, a Board-certified orthopedic surgeon.

Dr. White completed a report on August 22, 2016 reviewing appellant’s history of injury

and medical history.

4

 He performed a physical examination and found no tenderness of the 

cervical spine, no limitation of cervical motion, and only mild discomfort at extremes of lateral 

bending, extension, and rotation. Appellant presented a normal neurological examination of the 

upper extremities with symmetrical reflexes and no clinical evidence of cervical radiculopathy. 

Appellant’s shoulders did not demonstrate muscle wasting, swelling, or deformity. Dr. White 

found no clinical signs of impingement or instability in either shoulder. In regard to appellant’s 

thoracic and lumbosacral spines, he found full range of motion with mild discomfort at the 

extremes of extension and lateral bending. Dr. White’s neurological examination of appellant’s 

 

4 Dr. White did not mention Dr. Parker’s impartial medical examination, but referred to appellant’s second opinion 

evaluations as “orthopedic IME report[s].”
5

lower extremities was normal with no lower extremity radicular signs or symptoms. He noted that 

he agreed with Dr. Sultan and found that appellant’s accepted conditions had resolved. Dr. White

opined that there was no indication for further medical treatment due to these conditions. He

concluded that there was no evidence of any ongoing causally-related disability and found that 

appellant should be able to return full time to her date-of-injury position, and again noted that he 

agreed with Dr. Sultan. However, Dr. White added, “The only modification that I would suggest 

in her work environment would be in her reliance in available hospital staff charged with the job 

of transferring patients and seek their assistance in patient transfers.” He completed the work 

capacity evaluation (OWCP-5) and indicated that appellant could perform her usual job without 

restriction for eight hours a day.

In a letter dated September 27, 2016, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits based on Dr. White’s August 22, 2016 report. It afforded 

appellant 30 days for a response if she disagreed with the proposed termination.

Dr. Pearl completed a report on October 6, 2016 and disagreed with Dr. White’s findings 

and conclusions. He noted that appellant had pain in her neck and back to her extremities and 

found Dr. White’s range of motion determinations to be inconsistent with his findings. Dr. Pearl 

noted that Dr. White recommended work modification and home exercises. He further opined that 

appellant’s accepted conditions should include chronic pain syndrome which neither Dr. Sultan 

nor Dr. White addressed. Dr. Pearl continued to submit treatment notes from October 6, 2016 

through January 31, 2017 diagnosing cervical radiculitis and lumbosacral radiculopathy.

By decision dated March 21, 2017, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective March 20, 2017. It found that Dr. White was entitled to the special 

weight of the medical evidence and established that appellant had no ongoing disability or medical 

residuals.

In a letter dated March 30, 2017, appellant disagreed with OWCP’s March 21, 2017 

termination decision and asserted that she remained totally disabled. She requested 

reconsideration on April 4, 2017 and submitted a report from Dr. Pearl dated March 29, 2017 in 

which he opined that appellant was totally disabled due to loss of range of motion of the cervical 

spine as well as pain on palpation of the paraspinal muscles in the cervical and lumbosacral spine.

Dr. Pearl found that appellant had ongoing neurological complaints and objective evidence of 

progressive cervical spine disease as well as chronic pain syndrome with depressive elements. 

Appellant also submitted treatment notes from Dr. Pearl dated March 29, and May 31, 2017.

By decision dated July 6, 2017, OWCP denied modification of its March 21, 2017 

termination decision and found that appellant had not established continuing disability and medical 

residuals on or after that date.
6

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

termination or modification of an employee’s benefits.5 After it has determined that an employee 

has disability causally related to his or her federal employment, it may not terminate compensation 

without establishing 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 for disability compensation.8 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.9

Section 8123(a) of FECA which 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 (known as a referee physician or impartial medical 

specialist) who shall make an examination.10 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.11 When there exists opposing 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.12

ANALYSIS -- ISSUE 1

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

compensation and medical benefits, effective March 20, 2017. 

 

5 See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6 See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. 

Minor, 37 ECAB 541 (1986).

7 See R.P., supra note 5; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8 See R.P., supra note 5; T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 

08-1822 (issued August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).

9 See R.P., supra note 5; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); 

Furman G. Peake, id.

10 5 U.S.C. § 8123(a); see R.P., supra note 5; R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 

08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

11 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

12 See R.P., supra note 5; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
7

OWCP accepted that appellant sustained right shoulder strain, cervical radiculitis, and 

lumbar sprain due to her January 20, 1993 employment injury. It properly determined that a 

conflict arose between Dr. Pearl, appellant’s attending physician, who found that she was totally 

disabled from work due to medical residuals of her accepted condition, and Dr. Sultan, an OWCP 

second opinion physician, who found that she had no disability or medical residuals due to her 

accepted employment injuries. On July 1, 2016 OWCP referred appellant to Dr. White for an 

impartial medical examination. By decision dated March 20, 2017, it terminated appellant’s wageloss compensation and medical benefits, effective March 20, 2017 based on the special weight 

accorded Dr. White’s opinion as the impartial medical examiner. 

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.13 The Board finds that the opinion of Dr. White, a 

Board-certified orthopedic surgeon, selected to resolve the conflict in opinion is based on a proper 

factual14 and medical background and is well rationalized. Dr. White accurately summarized the 

relevant medical evidence, provided detailed findings on examination, and reached conclusions 

about appellant’s condition which comported with his findings.15 He found appellant had a normal 

neurological examination of the upper extremities with symmetrical reflexes and no clinical 

evidence of cervical radiculopathy. Dr. White found no clinical signs of impingement or 

instability in either shoulder. His neurological examination of appellant’s lower extremities was 

also normal with no lower extremity radicular signs or symptoms. Dr. White found that appellant’s 

accepted conditions had resolved. He provided rationale for his opinion by noting that appellant 

had no further objective findings of her accepted conditions. As his report is detailed, wellrationalized, and based on proper factual background, his opinion is entitled to the special weight 

accorded an IME.16

The remaining evidence submitted prior to OWCP’s termination of appellant’s 

compensation is insufficient to show that she had disability or residuals of her accepted work 

injury. Dr. Pearl completed a report on October 6, 2016 and disagreed with Dr. White’s findings 

and conclusions. He further opined that appellant’s accepted conditions should include chronic 

pain syndrome and continued to diagnose cervical radiculitis and lumbosacral radiculopathy.

Dr. Pearl did not, however, provide a rationalized explanation regarding the medical findings and 

reasoning for his opinion. Furthermore, as Dr. Pearl was on one side of the conflict that Dr. White 

resolved, the additional unrationalized report from Dr. Pearl is insufficient to overcome the weight 

accorded Dr. White’s report as the impartial medical specialist or to create a new conflict with it.17 

 

13 S.F., Docket No. 17-1427 (issued May 16, 2018).

14 The Board finds that the failure of the SOAF to identify Dr. Parker as a previous impartial medical examiner was 

harmless error.

15 S.F., supra note 13.

16 S.F., supra note 13; Kathryn E. Demarsh, 56 ECAB 677 (2005).

17 S.F., supra note 13; Dorothy Sidwell, 41 ECAB 857, 874 (1990).
8

LEGAL PRECEDENT -- ISSUE 2

Once OWCP properly terminates the claimant’s compensation benefits, the burden shifts 

to the claimant to establish that he or she has continuing disability after that date related to his or 

her accepted injury.18 To establish causal relationship between any attendant disability claimed 

and the employment injury, an employee must submit rationalized medical evidence based on a 

complete medical and factual background, supporting such causal relationship.19 Causal 

relationship is a medical issue and the medical evidence required to establish a causal relationship 

is rationalized medical evidence.20

ANALYSIS -- ISSUE 2

Following the termination of her wage-loss compensation and medical benefits, appellant 

disagreed with OWCP’s March 21, 2017 termination decision and requested reconsideration on 

April 4, 2017. In support of her request, appellant submitted a report from Dr. Pearl dated 

March 29, 2017 in which he opined that appellant was totally disabled due to loss of range of 

motion of the cervical spine as well as pain on palpation of the paraspinal muscles in the cervical 

and lumbosacral spine. Dr. Pearl found that appellant had ongoing neurological complaints and 

objective evidence of progressive cervical spine disease as well as chronic pain syndrome with 

depressive elements.

The Board finds that Dr. Pearls’ March 29, 2017 report is similar to his October 6, 2016 

report. Dr. Pearl again opined that appellant’s accepted conditions should include chronic pain 

syndrome and cervical and lumbosacral pain on palpation. He did not, however, provide objective 

findings on examination or a rationalized explanation regarding any objective medical findings 

and his diagnoses. Furthermore, as Dr. Pearl was on one side of the conflict that Dr. White 

resolved, the additional unrationalized report from Dr. Pearl is again insufficient to overcome the 

weight accorded Dr. White’s report as the impartial medical specialist or to create a new conflict 

with his opinion.

21

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 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

compensation and medical benefits, effective March 20, 2017. The Board further finds that 

 

18 S.F., supra note 13; Manuel Gill, 52 ECAB 282 (2001).

19 Id.

20 C.W., Docket No. 12-1211 (issued November 15, 2012); Darlene R. Kennedy, 57 ECAB 414 (2006).

21 Supra note 17.
9

appellant has not established continued employment-related disability or residuals after 

March 20, 2017.

ORDER

IT IS HEREBY ORDERED THAT the July 6, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: September 12, 2018

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