United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.L., Appellant

and

TENNESSEE VALLEY AUTHORITY, 

DIVISION OF NATURAL RESOURCE 

OPERATIONS, Norris, TN, Employer

__________________________________________

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Docket No. 17-1969

Issued: April 24, 2018

Appearances: Case Submitted on the Record

Capp P. Taylor, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 21, 2017 appellant, through counsel, filed a timely appeal from an 

August 29, 2017 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 to consider the merits of this case.

 

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.
2

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation effective November 18, 2016; and (2) whether appellant met his burden of 

proof to establish continuing disability after November 18, 2016.

FACTUAL HISTORY

On July 20, 1981 appellant, then a 37-year-old biological associate, filed a traumatic injury 

claim (Form CA-1) alleging that, on July 1, 1981, he sustained lower back and left leg injuries

while loading lumber in the performance of duty. He stopped work on the date of injury. OWCP 

initially accepted the claim for herniated L5-S1 disc, which was subsequently changed to 

acceptance of lumbar intervertebral disc disorder without myelopathy. Appellant underwent

authorized left L5 lumbar discectomy, on August 4, 1981. He returned to limited-duty work as an 

order clerk on September 9, 1982.

Appellant’s August 4, 1981 surgery and subsequent medical care were provided by

Dr. William S. Reid, an attending neurosurgeon.

In work restriction evaluation forms (Form OWCP-5) dated April 15 and July 25, 1983,

Dr. Edward L. Tauxe, an OWCP referral physician, indicated that appellant was capable of 

working with restrictions.

By decision dated October 5, 1983, OWCP issued a loss of wage-earning capacity 

determination reducing appellant’s wage-loss compensation based on his actual earnings in the 

position of order clerk. It found that the restrictions of the order clerk position were within the 

work restrictions found by Dr. Tauxe. Appellant stopped work again in 1986.

In reports dated March 28, 2012, March 14, 2013, May 14, 2014, and March 19, 2015,

Dr. Reid opined that appellant’s condition remained unchanged.

On May 8, 2015 OWCP referred appellant to Dr. Nicholas A. Grimaldi, a Board-certified 

orthopedic surgeon, for a second opinion evaluation on whether appellant’s accepted condition 

had resolved and whether he was capable of returning to his date-of-injury position.

In a June 8, 2015 report, Dr. Grimaldi, based upon a review of the medical evidence, the 

statement of accepted facts (SOAF), and appellant’s physical examination diagnosed L5-S1 

degenerative disc disease and subjective radiculitis. He noted appellant was under the care of

Dr. Reid and was seen annually. A physical examination revealed negative bilateral straight leg 

raising, tenderness on palpation of the lower back, and no muscle spasms. Dr. Reid reported that

appellant ambulated without any assistance. Based on his review of the position description, he 

concluded that appellant would be capable of performing his date-of-injury position. Dr. Reid 

noted the lack of any significant medical treatment since appellant’s surgery. He further observed 

that appellant’s L5-S1 arthritis was not severe enough to limit or preclude work. Dr. Grimaldi 

opined that appellant was unable to perform his date-of-injury position due to appellant’s nonworkrelated conditions of radiation from prostate cancer treatment and age-related arthritis.
3

On June 29, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss 

compensation. It found that Dr. Grimaldi’s opinion that appellant could perform his date-of-injury 

job constituted the weight of the medical opinion evidence.

In a letter dated August 6, 2015, appellant disagreed with the proposal to terminate his 

wage-loss compensation.

By decision dated August 14, 2015, OWCP finalized the termination of appellant’s wageloss compensation.

On August 24, 2015 OWCP received appellant’s request for a telephone hearing before an 

OWCP hearing representative, which was held on April 7, 2016.

By decision dated June 6, 2016, OWCP’s hearing representative reversed the termination 

of appellant’s wage-loss compensation. She found that the SOAF did not contain an adequate 

description of the physical demands and specific levels of physical activities required for the 

biological associate position he held on the date of his injury. In addition, the hearing 

representative found Dr. Grimaldi’s opinion was not based upon a review of the entire medical 

record and he failed to provide sufficient rationale for his opinion. The hearing representative 

instructed OWCP to provide a revised SOAF and all the medical records to Dr. Grimaldi for 

review.

Pursuant to the hearing representative’s instructions, OWCP revised and updated the 

SOAF, which it forward to Dr. Grimaldi for review along with a position description for biological 

associate and relevant medical records not previously provided.

In an updated report dated August 31, 2016, Dr. Grimaldi, based upon a review of the 

revised SOAF, the additional medical records, and a new physical examination, concluded 

appellant continued to have residuals from his L5-S1 degenerative disc disease, which correlated 

with his accepted work injury. He noted x-ray findings confirmed lumbar degenerative disc 

disease with facet spondylosis. Dr. Grimaldi again concluded that appellant was capable of 

performing the biological associate duties from his L5-S1 disc disease perspective. In support of 

his conclusion, he noted that the pain caused by appellant’s degenerative disc disease was not 

severe enough to preclude appellant from performing the physical requirement of the position. 

Dr. Grimaldi opined that any disability appellant had was due to undergoing prostate cancer

radiation. In support of this conclusion, he observed that appellant’s symptoms and pain with his 

feet, legs, and hips developed after undergoing radiation to treat his prostate cancer.

On September 30, 2016 OWCP issued a notice proposing to terminate appellant’s wageloss compensation based upon Dr. Grimaldi’s August 31, 2016 opinion that appellant was capable 

of performing his date-of-injury job as a biological associate.

By decision dated November 18, 2016, OWCP finalized the termination of appellant’s 

wage-loss compensation, effective that date, as it found that he had no disability due to the accepted 

work condition and was capable of performing the duties of his date-of-injury job as a biological 

associate.
4

On November 29, 2016 OWCP received appellant’s request for a telephonic hearing before 

an OWCP hearing representative, which was held on June 15, 2017.

In December 29, 2016 report, Dr. Alan L. Whiton, a treating physician, noted appellant’s 

medical and employment injury history. Appellant reported low back pain since the date of injury, 

July 1, 1981. Physical examination findings including ambulating without assistance, decreased 

left lower extremity sensation, L5 spinous process tenderness, normal lumbar spine alignment, 

tenderness at the sacroiliac joint, tenders on palpation of the left iliolumbar region, and limited 

active range of motion. Diagnoses included lumbar spinal stenosis and prolapsed lumbar 

intervertebral disc.

In an August 24, 2017 report, Dr. Whiton reviewed the job description for biological 

associate and opined that residuals from appellant’s accepted work injury precluded his ability to 

perform this position. He disagreed with Dr. Grimaldi’s opinion that appellant’s leg problems 

were due to diabetes as no definitive diagnosis of diabetes had been made by a treating physician. 

Dr. Whiton observed that examination findings from his December 29, 2016 evaluation including 

decreased left lower extremity sensation were consistent with L5-S1 degeneration and continuing 

employment-related residuals.

By decision dated August 29, 2017, the hearing representative affirmed the termination of 

appellant’s wage-loss compensation. She found the medical evidence of record, as represented by

Dr. Grimaldi’s August 31, 2016 opinion established that appellant no longer had any disability due 

to his accepted work condition. The hearing representative further found Dr. Whiton failed to 

provide any medical rationale supporting his opinion that appellant continued to be totally disabled 

due to the accepted work condition. Thus, she found no conflict in the medical opinion evidence 

and the weight of the medical evidence rested with the well-rationalized opinion of Dr. Grimaldi. 

The hearing representative also found that appellant failed to meet his burden of proof to establish 

disability on and after November 18, 2016.

LEGAL PRECEDENT

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

modification or termination of an employee’s benefits.3 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.4 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.5

 

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

4

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5 See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).
5

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation benefits because the medical evidence of record fails to establish that he 

was no longer disabled from work as a result of his accepted July 1, 1981 employment injury.

Dr. Grimaldi, in August 31, 2016 supplemental report, reviewed appellant’s history of 

injury, an updated SOAF, the biological associate position description. He described appellant’s 

physical examination findings and noted objective residuals based on x-ray findings and physical 

examination findings. Dr. Grimaldi further explained that, although appellant had residuals from 

his work injury, they were not disabling to prevent him from performing his usual duties as a 

biological associate as described in the updated SOAF and position description. He noted that 

appellant’s lumbar pain was not sufficiently disabling and that any disability was due to feet, leg 

and hip symptoms which appellant developed after undergoing radiation for prostate cancer.

Dr. Grimaldi opined that appellant was able to return to his date-of-injury position. The 

Board finds that he did not adequately explain with medical rationale why appellant was no longer 

disabled from this position. Dr. Grimaldi did not provide any rationalized medical explanation as 

to why he found that appellant still had residuals from his herniated L5-S1 disc and lumbar 

intervertebral disc disorder without myelopathy, which now correlated with his L5-S1 

degenerative disc disease, but that these conditions were not disabling. According to him,

appellant’s disability from performing the biological associate position was attributable to 

symptoms and pain in the hips, legs, and knees after undergoing prostate cancer treatment. The 

Board has held that medical evidence that states a conclusion, but does not offer any rationalized 

medical explanation is of limited probative value.6 Dr. Grimaldi did not provide any medical 

reasoning, or otherwise detailed analysis, to support his conclusory statements about appellant’s 

ability to perform the duties of a biological associate.

7

 Because he does not support his opinion 

with medical rationale, his report is insufficient to justify termination of appellant’s wage-loss 

compensation benefits.

The weight of medical evidence is determined by its reliability, its probative value, and its 

convincing quality.8 The factors that, comprise the evaluation of medical opinion evidence include 

the opportunity for and thoroughness of examination, the employing establishment or 

completeness of the physician’s knowledge of the facts and medical history, the care of analysis 

manifested, and the medical rationale expressed in support of the physician’s opinion.9 In this 

case, the Board finds that Dr. Grimaldi’s opinion is lacking in medical rationale. Accordingly, his 

opinion has diminished probative value and is not entitled to the weight of medical evidence 

sufficient to justify termination of appellant’s wage-loss compensation. 

 

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).

8 See Nicolette R. Kelstrom, 54 ECAB 570 (2003).

9 See M.D., 59 ECAB 211 (2007).
6

CONCLUSION

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation, effective November 18, 2016.10

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated August 29, 2017 is reversed.

Issued: April 24, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

10 In light of the above findings and conclusion, the second issue is rendered moot.