United States Department of Labor

Employees’ Compensation Appeals Board

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M.H., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL AIR MARSHAL SERVICE, 

College Park, GA, Employer

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Docket No. 19-0782

Issued: September 9, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 26, 2019 appellant filed a timely appeal from a January 18, 2019 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 has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective January 19, 2019, as he no longer had residuals or 

disability causally related to his accepted November 7, 2016 employment injury.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 9, 2016 appellant, then a 47-year-old federal air marshal, filed a traumatic 

injury claim (Form CA-1) alleging that on November 7, 2016 he unexpectedly twisted his back 

while holding a roller board suitcase at shoulder level while in the performance of duty. He

stopped work on November 8, 2016 and received continuation of pay (COP). On December 1, 

2016 OWCP accepted appellant’s claim for lower back (lumbar) strain. Appellant received COP 

through December 23, 2016, and OWCP paid wage-loss compensation for temporary total 

disability beginning December 24, 2016.

2

Appellant received medical treatment from Dr. Edward K. Kahn, a Board-certified 

orthopedic surgeon. In an April 11, 2017 report, Dr. Kahn indicated that appellant was being 

evaluated for complaints of back pain following a work-related injury. He diagnosed lumbar 

strain. Dr. Kahn reported that appellant’s subjective complaints far outweighed any objective 

findings and opined that there was a “significant amount of symptom magnification going on.”

OWCP referred appellant, along with a statement of accepted facts (SOAF) and a copy of 

the record, to Dr. Michael A. MacKay, a Board-certified orthopedic surgeon, for a second-opinion 

evaluation regarding the status of his work-related November 7, 2016 employment injury and work 

capacity. In a May 11, 2017 report, Dr. MacKay reviewed appellant’s history of injury and noted 

that appellant’s claim was accepted for lumbar sprain. Upon physical examination of the lumbar 

spine, he observed mild tightness in the hamstrings with increased lower back pain on straight leg 

raise bilaterally and tenderness in the midline, paraspinal lumbosacral, and sacroiliac (SI) regions. 

Dr. MacKay opined that appellant still suffered residuals of his lumbar sprain injury. He 

recommended that appellant begin a work hardening program to expedite his return to work.

On December 21, 2017 OWCP referred appellant along with a statement of accepted facts 

(SOAF) and a copy of the record and a series of questions to Dr. Nicholas A. Grimaldi, a Boardcertified orthopedic surgeon, for another second-opinion evaluation regarding the status of his 

work-related November 7, 2016 employment injury and work capacity. In a January 29, 2018 

report, Dr. Grimaldi reviewed the SOAF and the medical evidence of record. He described the 

November 7, 2016 employment incident and noted that appellant’s claim was accepted for lumbar 

sprain. Upon examination of appellant’s lumbar spine, Dr. Grimaldi observed exquisite tenderness 

upon palpation of the low back. He related that appellant was very guarded upon palpation and 

that he cried out in pain. Dr. Grimaldi reported range of motion of 65 degrees forward flexion and 

20 degrees back extension. He related that straight leg raise testing elicited pain in appellant’s 

back. Dr. Grimaldi opined that appellant had “symptom magnification appreciated by his exquisite 

tenderness to palpation to his lumbar facet joints.” He noted that appellant had negative Faber’s 

test over the sacroiliac joint, negative Gaenslen’s test, and his magnetic resonance imaging (MRI)

scan findings were negative for any significant type of operative pathology.

In response to OWCP’s questions, Dr. Grimaldi reported that there were no physical 

examination findings to support that appellant continued to have a lumbar sprain and opined that 

he had symptom magnification with demonstrated weakness to his bilateral legs. He explained 

 

2 Effective June 25, 2017, OWCP placed appellant on the periodic compensation rolls.
3

that strains of the lumbar region typically resolve within two to three months of conservative care. 

Dr. Grimaldi reported that appellant should be able to return to work without any restrictions, but 

recommended that appellant undergo a functional capacity evaluation (FCE) to determine his work 

capability because he was at a high risk of malingering.

In a February 27, 2018 report, Dr. Samuel A. Yoakum, Board-certified in physical 

medicine and rehabilitation, treated appellant for complaints of sacroiliac (SI) joint pain. Upon 

examination of appellant’s lumbar spine, he observed decreased extension and rotation to the right 

due to right upper buttock pain. Gaenslen’s and SI joint compression tests were significantly 

positive on the right. Dr. Yoakum diagnosed SI joint pain and thoracolumbar scoliosis and 

completed a work status note indicating that appellant could work limited duty.

On March 26, 2018 appellant underwent a functional capacity evaluation (FCE), which he 

was unable to complete due to elevated blood pressure.

In a March 30, 2018 work capacity evaluation form (Form OWCP-5c), Dr. Grimaldi 

indicated that appellant was capable of performing his usual job without restriction. He further 

noted that appellant needed to see his primary care physician for blood pressure control. 

Dr. Grimaldi additionally commented that appellant knew he needed to take his blood pressure 

medicine prior to the FCE and he did not. He also indicated that appellant did not even take any 

medication for pain. Lastly, Dr. Grimaldi commented that appellant would be placed on regular 

duty until his blood pressure was under control and he could retake the FCE. 

In a May 30, 2018 supplemental report, Dr. Grimaldi opined that appellant’s accepted 

work-related lumbar sprain had resolved based on clinical objective findings. He noted that both,

he and Dr. Kahn, reported findings of symptom magnification. Dr. Grimaldi explained that the 

findings of symptom magnification through light palpation demonstrated that appellant’s 

symptoms were not from a lumbar sprain, and that his symptoms were potentially nonorganic. He 

further commented that appellant had undergone conservative treatment, as well as injections, and 

explained that lumbar sprains typically resolve within two to three months with rest and 

conservative care. In conclusion, Dr. Grimaldi stated that appellant’s “continued symptoms [were]

not due to a lumbar sprain [and were] potentially due to nonorganic causes based on clinical 

objective findings.”

On July 26, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and 

medical benefits because his November 7, 2016 employment injury had resolved. It found that 

the weight of medical evidence rested with the January 29 and May 30, 2018 reports of

Dr. Grimaldi, who found that appellant’s lumbar sprain had resolved and that he was no longer 

disabled from work. OWCP afforded appellant 30 days to submit additional evidence or argument, 

in writing, if he disagreed with the proposed termination.

On September 4, 2018 OWCP received appellant’s response to its proposed termination. 

Appellant noted his disagreement with Dr. Grimaldi’s medical opinion and indicated that another 

physician had agreed with Dr. Yoakum’s findings of nerve inflammation and damage in the right 

facet joint. He related that he had spoken with an OWCP nurse about changing his diagnosis from 

lumbar spine strain to facet joint injury. Appellant asserted that he was not magnifying his 

symptoms and simply wanted his back pain fixed.
4

OWCP also received an April 27, 2017 work status note from a physician with an illegible 

signature.

By decision dated January 18, 2019, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective January 19, 2019. It found that the weight of 

medical evidence rested with Dr. Grimaldi, OWCP’s second-opinion examiner, who concluded in 

reports dated January 29 and May 30, 2018, that appellant had no further residuals or disability 

due to his accepted November 7, 2016 employment injury.

LEGAL PRECEDENT

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

termination or modification of an employee’s benefits.3 It may not terminate compensation 

without establishing that the disability had ceased or that it was no longer related to the 

employment.4 OWCP’s 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

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective January 19, 2019.

OWCP improperly terminated appellant’s wage-loss compensation based on

Dr. Grimaldi’s second-opinion reports as he did not provide sufficient medical reasoning in his 

January 29 and May 30, 2018 reports to establish that appellant’s accepted lumbar sprain had 

resolved and that appellant was able to return to work. Dr. Grimaldi opined that there were no 

physical examination findings to support that appellant still had residuals of his accepted lumbar 

sprain. He explained that appellant had “symptom magnification” and indicated that strains 

typically resolve within two to three months with rest and conservative care. 

In his January 29, 2018 report, Dr. Grimaldi recommended that appellant undergo an FCE 

to determine work capacity. On March 26, 2018 appellant was unable to complete an FCE due to 

elevated blood pressure. Instead of referring appellant for another FCE, however, OWCP 

terminated appellant’s wage-loss compensation and medical benefits based on Dr. Grimaldi’s 

medical opinion. The Board has found that, once OWCP undertakes development of the medical 

 

3 A.G., Docket No. 18-0749 (issued November 7, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

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

4 A.G., id.; see I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003). 

5 R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

6 L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7 R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).
5

evidence, it has the responsibility to do so in a manner that would resolve the relevant issues in the 

case.8 As such, OWCP should have obtained a supplemental report from Dr. Grimaldi after 

appellant successfully completed an FCE and Dr. Grimaldi had an opportunity to review the results 

and provide an opinion regarding appellant’s ability to return to work.9 

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective January 19, 2019. 

ORDER

IT IS HEREBY ORDERED THAT the January 18, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: September 9, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

8 See R.B., Docket No. 14-1043 (issued December 12, 2014); V.H., Docket No. 14-0433 (issued July 3, 2014).

9 See W.J., Docket No. 18-1376 (issued March 29, 2017) (where the Board found that OWCP failed to complete 

the development of the medical record as recommended by a second-opinion examiner who requested updated 

diagnostic testing in order to assess whether appellant’s employment injury and disability had resolved).