United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.R., Appellant

and

DEPARTMENT OF COMMERCE, U.S. 

CENSUS BUREAU, Philadelphia, PA, Employer

__________________________________________

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Docket No. 19-0518

Issued: September 12, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 4, 2019 appellant, through counsel, filed a timely appeal from a November 13, 

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 following the November 13, 2018 decision, OWCP received additional evidence. 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 

evidence for the first time on appeal. Id.
2

ISSUES

The issues are: (1) whether OWCP properly terminated appellant’s wage-loss 

compensation effective April 29, 2018 as she no longer had disability causally related to her 

March 14, 2002 employment injury; and (2) whether she has met her burden of proof to establish 

continuing employment-related disability after April 29, 2018.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

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

follows.

On March 29, 2002 appellant, then a 46-year-old field representative, filed a traumatic 

injury claim (Form CA-1) alleging that on March 14, 2002 she sustained a neck sprain and other 

injuries in a motor vehicle accident while in the performance of duty. OWCP accepted her claim 

for cervical strain, a cervical herniated nucleus pulposus, lumbar strain, and post-traumatic 

headaches.5

Appellant underwent a right carpal tunnel release on November 7, 2002 and a left carpal 

tunnel release on March 20, 2003. On July 17, 2003 she underwent an authorized anterior cervical 

discectomy and fusion at C5-6 and C6-7. On March 3, 2004 appellant underwent an authorized 

right L4-5 discectomy. 

On August 19, 2011 OWCP paid appellant wage-loss compensation for total disability for 

the period from July 17, 2003 through August 2, 2011. In 2013, it paid her wage-loss 

compensation for total disability retroactive to March 1, 2012.6

On January 4, 2017 OWCP referred appellant to Dr. Andrew Newman, an orthopedic 

surgeon, for a second opinion examination. It provided Dr. Newman with a statement of accepted 

facts (SOAF) setting forth the accepted conditions. The SOAF indicated that appellant had 

undergone two cervical discectomies. 

In a report dated January 22, 2017, Dr. Newman discussed appellant’s history of a 

March 14, 2002 employment injury and her complaints of low back and neck pain and bilateral 

 

4 Docket No. 15-0583 (issued August 26, 2015).

5 By decision dated May 23, 2002, OWCP denied appellant’s claim after finding that the medical evidence was 

insufficient to show that she sustained a diagnosed condition due to the accepted employment-related March 14, 2002 

motor vehicle accident. On June 9, 2003 an OWCP hearing representative reversed the May 23, 2002 decision and 

accepted the claim for cervical strain, a cervical herniated disc, lumbar strain, and post-traumatic headaches.

6 By decision dated April 10, 2014, OWCP found that appellant had not established that she sustained bilateral 

carpal tunnel syndrome or disability from March 29 to July 15, 2003 causally related to her March 14, 2002

employment injury. On April 15, 2014 appellant, through counsel, requested an oral hearing before an OWCP hearing 

representative, which was held on August 15, 2014. By decision dated November 5, 2014, an OWCP hearing 

representative affirmed the April 10, 2014 decision. Appellant appealed to the Board. By decision dated August 26, 

2015, the Board affirmed the November 5, 2014 decision. It found that the medical evidence was insufficient to show 

that appellant had sustained bilateral carpal tunnel syndrome or disability from March 29 to July 15, 2003 causally 

related to her March 14, 2002 employment injury. 
3

carpal tunnel syndrome. He noted that she had undergone a right knee replacement which she 

attributed to the employment injury, and also a cervical fusion at C5-6 and C6-7. Dr. Newman 

indicated that appellant had rheumatoid arthritis causing bilateral knee problems. On examination 

of the lumbar spine, he found evidence of symptom magnification. Dr. Newman opined that 

appellant had no further disability or need for medical treatment due to her March 14, 2002

employment injury. He indicated that she had work restrictions as a result of nonemploymentrelated degenerative changes in the cervical and lumbar spine and her right total knee replacement.

In an attending physician’s report (Form CA-20) dated February 27, 2017, Dr. Steven H. 

Ressler, an anesthesiologist, diagnosed a herniated lumbar disc and provided findings of chronic 

low back and cervical pain after surgery. He checked a box marked “yes” that the condition was 

caused or aggravated by the March 14, 2002 employment-related motor vehicle accident and 

opined that appellant was totally disabled. In a narrative report of even date, Dr. Ressler diagnosed 

employment-related lumbar and cervical radiculopathy due to a herniated nucleus pulposus 

following lumbar and cervical surgery, chronic low back pain, and chronic cervical pain. 

OWCP determined that a conflict existed between Dr. Newman and Dr. Ressler regarding 

appellant’s current condition and the extent of any employment-related disability. It referred 

appellant to Dr. Thomas O’Dowd, a Board-certified orthopedic surgeon, for an impartial medical 

examination. OWCP sent the referral letter to her counsel at his address of record.

In a report dated July 11, 2017, Dr. O’Dowd reviewed the history of appellant’s March 14, 

2002 employment injury and her subsequent medical treatment, including surgery on her lumbar 

and cervical spine. He discussed her complaints of neck pain radiating into both arms and low 

back pain with intermittent radiation into the right side. Dr. O’Dowd noted that appellant had no 

significant complaints of headaches. He found some evidence of enhancement on physical 

examination. Regarding the cervical spine, Dr. O’Dowd related:

“I find no evidence of significant residual neck pain that could be related to the 

accident in March of 2002.

“[Appellant] has no significant objective neurological abnormalities in the upper 

extremities that could be related to this. Her cervical spine exam[ination] is 

variable and benign and I find no objective evidence of ongoing symptom complex 

related to her accepted cervical sprain and strain and herniation in the cervical 

spine.”

Dr. O’Dowd concluded that appellant’s accepted cervical condition had “completely 

resolved” and that she required no further medical treatment. 

Dr. O’Dowd further determined that appellant had no ongoing lumbar symptoms, noting 

that an examination revealed “no objective abnormalities.” He found that she required no further 

treatment. Dr. O’Dowd related, “It is not clear that [appellant’s] surgical treatment was related to 

that motor vehicle accident from 2002, but there is no residual compression as of the 2013 

[magnetic resonance imaging] MRI [scan] that I personally reviewed.” He advised that she 

required no further medical treatment. Dr. O’Dowd concluded that he was unable to address

whether appellant had a preexisting lumbar or cervical spine condition. He related, “However, I 

can state [appellant] has subjective symptoms only with no objective abnormalities in the cervical 

and lumbar spine that would require further treatment.” Dr. O’Dowd found that appellant had no 
4

further disability due to her March 14, 2002 employment injury. He related that she could return 

to her usual employment, but should limit extensive walking due to her nonemployment-related 

knee condition. In a work capacity evaluation (OWCP-5c), Dr. O’Dowd determined that appellant 

could not climb or kneel and should change positions from sitting every two hours. He opined that 

she could return to her usual employment.

On March 6, 2018 OWCP advised appellant of its proposed termination of her wage-loss 

compensation and medical benefits as the evidence established that she no longer had employmentrelated residuals or disability due to her March 14, 2002 employment injury. It afforded her 30 

days to submit additional evidence or argument if she disagreed with the proposed termination.

On March 14, 2018 counsel noted that OWCP had not provided him with the 

correspondence scheduling the examination with Dr. O’Dowd and had failed to provide him with 

the SOAF until after the examination. He asserted that the SOAF failed to indicate that she 

underwent authorized lumbar surgery. Counsel noted that Dr. O’Dowd had indicated that he did 

not have medical records from before appellant’s employment injury and had not reviewed MRI 

scans obtained following the injury. 

In a report dated April 17, 2018, Dr. Ressler discussed appellant’s history of a cervical 

fusion in 2003 and lumbar discectomy in 2004. He advised that she had radiculopathy of the 

bilateral extremities treated with injections and nerve blocks. Dr. Ressler diagnosed cervical and 

lumbar facet disease causally related to the March 14, 2002 employment injury. He indicated that 

appellant had an “inability to return to meaningful employment as a result of the work[-]related 

injury and subsequent treatments for her ongoing cervical and lumbar ailments.” Dr. Ressler 

advised that she also had left knee and right shoulder pain unrelated to her March 14, 2002 

employment injury that disabled her from her usual employment duties. He indicated that at most 

appellant could perform sedentary work, but could not drive or perform more than limited walking 

due to her knee condition. 

By decision dated April 24, 2018, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective April 29, 2018. It found that the opinion of Dr. O’Dowd, the 

impartial medical examiner (IME), represented the special weight of the evidence and established 

that she had no further residuals or disability due to her accepted employment injury.

On April 30, 2018 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. 

An oral hearing was held on August 28, 2018. Counsel contended that Dr. Newman’s 

opinion was not probative as he relied upon a SOAF which indicated that she had undergone two 

cervical discectomies, rather than a cervical fusion and lumbar discectomy. He further asserted 

that Dr. O’Dowd had not reviewed all of the MRI scans or early medical records, yet he had 

attributed her condition to preexisting conditions. Counsel contended that both physicians failed 

to address whether appellant had limitations due to her accepted post-traumatic headaches.

On October 3, 2018 the employing establishment related that upon its review the operative 

reports were not of record. It noted, however, that Dr. Newman had reviewed appellant’s history 

of surgeries. 
5

On October 18, 2018 counsel submitted the July 17, 2003 and March 3, 2004 operative 

reports. He asserted that Dr. O’Dowd had failed to review the diagnostic studies and that

Dr. Newman relied upon a SOAF that failed to indicate that appellant underwent a lumbar 

discectomy on February 2, 2004. 

By decision dated November 13, 2018, OWCP’s hearing representative affirmed in part

and reversed in part the April 24, 2018 decision. He found that OWCP properly terminated 

appellant’s wage-loss compensation based on the opinion of Dr. O’Dowd, but that it had not met 

its burden of proof to terminate entitlement to medical benefits. The hearing representative 

instructed OWCP to obtain all the diagnostic studies, update the SOAF to include all surgeries, 

and obtain a supplemental report from Dr. O’Dowd regarding whether she had residuals of her 

accepted employment injury such that she required further medical treatment. 

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.7 After it has determined that an employee 

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

compensation without establishing that the disability has ceased or that it is no longer related to 

the employment.8 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.9

Section 8123(a) of FECA provides in pertinent part: “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.”

10

 In situations where 

there exist opposing reports of virtually equal weight and rationale and the case is referred to an 

impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist, 

if sufficiently well rationalized and based on a proper factual and medical background must be 

given special weight.11

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly terminated appellant’s wage-loss compensation

effective April 29, 2018 as she no longer had disability causally related to her March 14, 2002 

employment injury.

OWCP accepted that appellant sustained cervical strain, a cervical herniated nucleus 

pulposus, lumbar strain, and post-traumatic headaches causally related to her March 14, 2002 

employment injury. Appellant underwent an authorized cervical discectomy and fusion at C5-6 

 

7 M.M., Docket No. 17-1264 (issued December 3, 2018).

8 E.B., Docket No. 18-1060 (issued November 1, 2018).

9 G.H., Docket No. 18-0414 (issued November 14, 2018).

10 5 U.S.C. § 8123(a); J.K., Docket No. 18-1250 (issued June 25, 2019).

11 20 C.F.R. § 10.321; T.D., Docket No. 17-1011 (issued January 17, 2018).
6

and C6-7 on July 17, 2003 and an authorized right L4-5 discectomy on March 3, 2004. OWCP 

paid appellant wage-loss compensation beginning July 17, 2003.

OWCP properly determined that a conflict in medical opinion existed between appellant’s 

attending physician, Dr. Ressler, and Dr. Newman, a second opinion examiner, regarding whether 

she had further employment-related disability or residuals due to her accepted employment injury. 

In order to resolve the conflict, it referred her to Dr. O’Dowd, a Board-certified orthopedic 

surgeon, for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a).

The Board finds that the special weight of the evidence is represented by the thorough, 

well-rationalized opinion of Dr. O’Dowd, the IME selected to resolve the conflict in medical 

opinion.12 In his July 11, 2017 report, Dr. O’Dowd reviewed appellant’s factual and medical 

history, including her history of cervical and lumbar surgeries, and provided detailed findings on 

physical examination. He indicated that she had no significant complaints of headaches. 

Dr. O’Dowd opined that appellant had no neck pain or objective neurological findings of the upper 

extremities due to her cervical sprain or herniation and indicated that the accepted cervical 

condition had resolved. He further found that she had no objective abnormalities related to the 

lumbar spine, noting that a 2013 MRI scan showed no residuals compression. Dr. O’Dowd opined 

that appellant had no further disability causally related to her March 14, 2002 employment injury, 

and that any limitations were related to nonemployment-related conditions. His opinion has 

reliability, probative value, and convincing quality with respect to whether she had further 

employment-related disability. Dr. O’Dowd provided a thorough factual and medical history and 

accurately summarized the relevant medical evidence.13 He provided rationale for his opinion by 

explaining that appellant had no objective findings of cervical sprain, a cervical herniation, or 

lumbar sprain. Dr. O’Dowd further noted that she had no further complaints of headaches. He

reached a reasoned conclusion regarding appellant’s employment-related disability. 

Dr. O’Dowd’s opinion thus represents the special weight of the evidence and establishes that she 

had no further disability causally related to her March 14, 2002 employment injury.14

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

compensation is insufficient to overcome the special weight afforded to Dr. O’Dowd as the IME. 

In an April 17, 2018 report, Dr. Ressler reviewed appellant’s medical history and diagnosed 

cervical and lumbar facet disease as a result of her 2002 employment injury. He found that she 

could perform sedentary work, but could not drive or walk more than limited distances as a result 

of her knee condition. Dr. Ressler also opined that appellant’s employment injury prevented her 

from resuming “meaningful employment.” However, he failed to provide rationale for his opinion 

regarding the extent of her disability or how it was caused or aggravated by her accepted 

employment injury.

15

 Further, Dr. Ressler was on one side of the conflict regarding the extent of 

her employment-related disability. Reports from a physician who was on one side of a medical 

 

12 R.P., Docket No. 19-0057 (issued May 16, 2019).

13 A.G., Docket No. 19-0113 (issued July 12, 2019).

14 See J.K., supra note 10.

15 See P.L., Docket No. 19-0268 (issued July 9, 2019).
7

conflict resolved by an IME are generally insufficient to overcome the special weight accorded to 

the opinion of the IME or to create a new conflict.16

LEGAL PRECEDENT -- ISSUE 2

When OWCP properly terminates compensation benefits, the burden shifts to appellant to 

establish continuing disability after that date causally related to the accepted injury.17 To establish 

causal relationship between the accepted conditions as well as 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.18

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to establish continuing 

employment-related disability after April 29, 2018.

Subsequent to the termination of appellant’s wage-loss compensation, counsel submitted 

copies of her lumbar and cervical surgery reports. He contended that Dr. O’Dowd had failed to 

review all diagnostic studies and that the SOAF was inaccurate as it failed to include appellant’s 

lumbar surgery. Dr. O’Dowd, however, summarized the medical evidence and indicated that he 

had reviewed a 2013 MRI scan. He noted that he had not reviewed medical evidence predating 

the injury. Dr. O’Dowd further discussed appellant’s history of lumbar surgery. As discussed, his 

opinion is detailed and reasoned and thus represents the special weight of the evidence.19

On appeal counsel contends that the SOAF was inaccurate as it failed to specify that 

appellant underwent a lumbar discectomy on March 3, 2004 and did not indicate that it had 

authorized the cervical and lumbar surgeries. He asserts that the opinions of Dr. Newman and

Dr. O’Dowd are consequently of diminished probative value. OWCP procedures, however, 

provide that medical treatment received is an optional element in the SOAF.

20

 Further, as noted,

Dr. O’Dowd discussed appellant’s history of lumbar surgery in his report.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(a) and 20 C.F.R.

§§ 10.605 through 10.607.

 

16 T.D., Docket No. 17-1011 (issued January 17, 2018).

17 L.C., Docket No. 18-1759 (issued June 26, 2019).

18 Id.

19 See supra note 16. 

20 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.6(a)(2) 

(September 2009).

21 See generally M.G., Docket No. 17-0708 (issued August 3, 2017) (finding that appellant had not raised a relevant 

legal argument when the SOAF mischaracterized the accepted condition as the IME properly referred to the correct 

diagnosis).
8

CONCLUSION

The Board finds that OWCP properly terminated appellant’s wage-loss compensation 

effective April 29, 2018 as she no longer had disability causally related to her March 14, 2002 

employment injury. The Board further finds that she has not met her burden of proof to establish 

continuing employment-related disability after April 29, 2018. 

ORDER

IT IS HEREBY ORDERED THAT the November 13, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 12, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board