United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Hightstown, NJ, Employer

__________________________________________

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Docket No. 19-0296

Issued: July 25, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 26, 2018 appellant, through counsel, filed a timely appeal from a June 18, 

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 June 18, 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 additional 

evidence for the first time on appeal. Id. 
2

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective August 25, 2017, as he had no residuals 

or disability due to the accepted April 3, 2011 employment injury; and (2) whether appellant has 

met his burden of proof to establish continuing employment-related disability on and after

August 25, 2017.

FACTUAL HISTORY

On June 28, 2011 appellant, then a 44-year-old mail clerk, filed an occupational disease 

claim (Form CA-2) alleging that lifting, bending, and pushing while in the performance of duty 

caused his L4-5 herniated disc with radiculopathy. He noted that he first became aware of his 

claimed condition on April 3, 2011 and related it to his federal employment on June 23, 2011. 

Appellant had stopped work on April 2, 2011 and returned to work with restrictions on 

May 31, 2011. OWCP accepted the claim for aggravation of L4-5 herniated disc. It paid appellant 

intermittent wage-loss compensation benefits on the supplemental rolls commencing

April 4, 2011.

4

 By decision dated July 20, 2015, OWCP accepted that he had a recurrence of 

disability effective May 30, 2015.

In a work capacity evaluation (Form OWCP-5c) dated January 26, 2016, Dr. Uday Bhatt, 

a Board-certified physiatrist, indicated that appellant was capable of working four hours per day 

with restrictions.

The employing establishment offered appellant a modified-duty position on February 9, 

2016 working four hours a day as a sales and service associate. Appellant accepted the position 

and returned to part-time work on February 20, 2016 as a sales and service associate.

Appellant submitted a number of reports, treatment notes, and work capacity evaluations 

(Form OWCP-5c) for the period March 18, 2016 to March 10, 2017 from Dr. Bhatt who diagnosed

lumbar herniated disc syndrome and supporting partial disability. 

On September 9 and 23, 2016 OWCP referred appellant for a second opinion evaluation 

with Dr. James A. Charles, a Board-certified neurologist and clinical neurophysiologist, for an 

neurological evaluation and opinion regarding the status of appellant’s accepted conditions and 

his work capacity. 

In an October 11, 2016 report, Dr. Charles, based on a review of the medical evidence, a 

statement of accepted facts (SOAF), and the physical examination, diagnosed lumbar and cervical 

musculoskeletal and ligament strains which he opined were unrelated to the accepted April 3, 2011

employment injury. A review of appellant’s lumbar spine magnetic resonance imaging (MRI)

scan revealed left L4-5 paracentral disc herniation and L3-4 disc fragmentation. Dr. Charles

observed that appellant’s right lower extremity findings were attributable to either malingering or 

a somatoform disorder as the findings were nonphysiologic, nonorganic, and unrelated to the 

accepted April 3, 2011 employment injury. He noted that there was no evidence of cervical spinal 

cord or nerve root injury as appellant sustained a cervical musculoskeletal and ligamentous sprain.

 

4 The evidence of record does not establish when wage-loss compensation benefits paid on the supplemental rolls 

were terminated.
3

Dr. Charles opined that the accepted April 3, 2011 work injury caused no peripheral or central 

nervous system injury.

On January 13, 25, and 30, 2017 OWCP received undated reports from Dr. Bhatt 

diagnosing chronic lumbar radiculopathy which he attributed to lumbar herniated disc syndrome. 

Dr. Bhatt indicated that appellant was capable of working with restrictions. He noted that the 

accepted April 3, 2011 employment injury caused anatomic changes at L3-4 and L4-5 and resulted 

in permanent disability. 

In progress notes dated February 14 and March 4 and 10, 2017, Dr. Bhatt provided 

examination findings and diagnosed lumbar herniated disc syndrome, radiculopathy, and 

congenital spondylolisthesis.

Dr. Bhatt completed several work capacity evaluations (Form OWCP-5c) covering the 

period March 10 to June 9, 2017 indicating that appellant was capable of working four hours per 

day with restrictions, which was increased to eight hours on April 7, 2017. He diagnosed 

aggravation of the L4-5 herniated disc.

In a March 22, 2017 report, Dr. Sandro LaRocca, a Board-certified orthopedic surgeon, 

diagnosed recurrent low back pain and right lower radiculopathy. Family, medical, and injury 

histories were discussed and examination findings provided. Dr. LaRocca noted that x-ray 

interpretations performed on June 16, 2016 were essentially normal. He recommended a lumbar 

spine MRI scan based on appellant’s persistent symptoms of radiculopathy. 

On May 18, 2017 OWCP referred appellant to Dr. Gayatri Devi, a Board-certified 

neurologist, pain medicine physician, and psychiatrist, to resolve a conflict in the medical opinion 

evidence between Dr. Bhatt, appellant’s treating physician, and Dr. Charles, an OWCP referral 

physician, regarding whether appellant continued to have residuals and partial disability from his 

accepted employment injury. 

In a report dated June 6, 2017, Dr. Devi, based on a review of appellant’s medical record,

an SOAF, and physical examination concluded that he no longer had residuals or disability due to 

the accepted April 3, 2011 employment injury. He observed that the pain and muscle spasm 

appellant experienced on or about April 3, 2011 may have been due to the accepted work injury. 

In support of this conclusion, Dr. Devi noted appellant’s employment duties differed from his 

description that he was required to lift weights up to 800 pounds. He opined that appellant’s pain 

did not correlate with MRI scan findings in 2011. Dr. Devi further noted that the MRI scans in 

2011 and 2015 revealed some disc disease which possibly occurred at the time of the accepted 

employment injury, but may have been preexisting. He opined that appellant did not have any 

neurological pathology based on his examination findings which included normal reflexes. 

Moreover, Dr. Devi noted appellant’s right lower extremity sensory changes were inconsistent 

with a peripheral neuropathic or radiculopathic pattern. He concluded that appellant was capable 

of performing his date-of-injury employment position with no restrictions.

On June 21, 2017 OWCP issued a notice of proposed termination advising appellant that 

it had determined that he no longer had residuals or disability due to his accepted employment 

injury. In support of this proposed termination it accorded the special weight of the medical 

opinion evidence rested with the opinion of Dr. Devi, an impartial medical examiner. Appellant 

was afforded 30 days to respond. 
4

In response to OWCP’s proposed termination of benefits, appellant submitted a June 29, 

2017 MRI scan and progress notes dated June 9 and July 17, 2017 and work capacity evaluations 

(Form OWCP-5c) dated July 7 and August 8, 2017 from Dr. Bhatt, which were repetitive of prior 

reports and notes.

Dr. LaRocca, in a July 12, 2017 report, detailed examination findings and reviewed a 

June 29, 2017 lumbar spine MRI scan. He reported that appellant complained of low back pain 

radiating into the right lower extremity. Dr. Larocca diagnosed L4-5 disc herniation and L5-S1 

neural foraminal stenosis which he opined might be the cause of the complaints on the right side. 

He recommended further testing and continuing with Dr. Bhatt’s recommendation that appellant 

work four hours per day.

By decision dated August 24, 2017, OWCP finalized the termination of appellant’s 

compensation benefits effective August 25, 2017. 

On August 29, 2017 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. The hearing was held on January 29, 2018.

OWCP received progress notes for the period August 4, 2017 to January 26, 2018 from

Dr. Bhatt. 

In a report dated September 6, 2017, Dr. Nirav K. Shah, a Board-certified neurosurgeon, 

related that appellant was seen for low back pain radiating into his lower extremities. Appellant’s

physical examination revealed right sacroiliac joint tenderness, no lower spinal tenderness, 

positive right straight leg raising, and normal gait. Diagnoses included lumbar radiculopathy, 

cervicalgia, and traumatic lumbar intervertebral disc rupture. Dr. Shah opined that appellant 

continued to suffer residuals of the work-related conditions and that the current part-time work 

restrictions should continue indefinitely.

In a January 15, 2018 report, Dr. Bhatt noted his disagreement with Dr. Devi’s June 6, 

2017 report and his motor neurological examination. He explained that it is difficult to assess 

motor strength when there was a pain component. Dr. Bhatt opined that appellant’s injury caused 

permanent L3-4 and L4-5 anatomic changes and permanent disability. However, he opined that 

appellant was capable of working with restrictions.

By decision dated March 5, 2018, OWCP’s hearing representative affirmed the August 24, 

2017 decision terminating appellant’s wage-loss compensation and medical benefits. She found 

the special weight of the medical opinion evidence rested with the opinion of the impartial medical 

examiner, Dr. Devi.

Subsequent to the March 5, 2018 decision, OWCP received progress notes dated July 7, 

2017 and February 23, 2018 from Dr. Bhatt. Dr. Bhatt, in the February 23, 2018 progress note, 

repeated findings and diagnoses from prior reports.

On March 22, 2018 appellant, through counsel, requested reconsideration.

By decision dated June 18, 2018, OWCP denied modification of its prior decision, finding 

that the evidence of record was insufficient to establish that appellant had continuing residuals or 

disability due to the accepted April 3, 2011 employment injury.
5

LEGAL PRECEDENT -- ISSUE 1

Once OWCP has accepted a claim and pays compensation, it bears the burden 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 

Its 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.8 To terminate authorization for medical treatment, OWCP must 

establish that appellant no longer had residuals of an employment-related condition, which would 

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 exist 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 has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 25, 2017.

Appellant’s attending physician, Dr. Bhatt continued to find that appellant was partially 

disabled for work and had ongoing residuals requiring medical treatment due to his accepted 

 

5 H.P., Docket No. 18-0851 (issued December 11, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

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

6

J.D., Docket No. 18-0958 (issued January 8, 2019); I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 

734 (2003).

7 See D.P., Docket No. 18-0038 (issued January 4, 2019); J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 

284 (1988).

8 H.P., supra note 5; T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

J.B., Docket No.17-2021 (issued August 8, 2018); Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 

660 (2003).

10 5 U.S.C. § 8123(a); see B.B., Docket No. 18-1121 (issued January 8, 2019); R.P., Docket No. 17-1133 (issued 

January 18, 2018).

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

12 See R.P., supra note 10; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
6

April 3, 2011 employment injury. OWCP referred appellant for a second opinion evaluation with

Dr. Charles. In his October 11, 2016 report, Dr. Charles found that appellant had no ongoing 

medical residuals or disability due to his accepted April 3, 2011 employment injury. Due to the 

conflict between Drs. Bhatt and Charles, OWCP properly referred appellant for an impartial 

medical examination with Dr. Devi to resolve the conflict of medical opinion evidence.

On October 23, 2017 Dr. Devi described appellant’s April 3, 2011 employment injury and 

reviewed his medical history. He provided findings on physical examination, and noted 

neurological findings. Dr. Devi concluded that appellant’s accepted April 3, 2011 employment 

injury possibly caused a neurologic disability. He further concluded that appellant had no 

continuing disability as a result of his accepted April 3, 2011 employment injury and that he could 

return to work without restrictions.

The Board finds, however, that Dr. Devi’s report is not entitled to the special weight of the 

medical evidence as it is not based on the accepted condition of aggravation of disc herniation at 

L4-5 as set forth in the SOAF. Rather, he opined that appellant had muscle spasm and pain which 

“may have been related to work related injury” and also noted that he had some disc disease “which 

may have been preexisting or possibly incurred at the time of the injury.” Dr. Devi did not accept 

the facts as presented in the SOAF in rendering his medical opinion as he opined that the April 3, 

2011 employment injury possibly caused appellant’s disc disease. OWCP’s procedures and Board 

precedent dictate that when an OWCP medical adviser, second opinion specialist, or referee 

physician renders a medical opinion based on a SOAF which is incomplete or inaccurate or does 

not use the SOAF as the framework in forming his or her opinion, the probative value of the 

opinion is seriously diminished or negated altogether.13 Dr. Devi did not follow the SOAF as to 

the accepted conditions of the claim. As such, his opinion is of insufficient probative value to 

carry the special weight of the medical evidence as an impartial medical examiner.14

The Board thus finds that OWCP erred in relying on Dr. Devi’s opinion as the basis to 

terminate wage-loss compensation and medical benefits for the accepted employment condition

and therefore has not met its burden of proof.

15

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 25, 2017.

 

13 See M.D., Docket No. 18-0468 (issued September 4, 2018).

14 R.D., Docket No. 17-0415 (issued April 13, 2018).

15 In light of the Board’s finding in Issue 1, Issue 2 is rendered moot.
7

ORDER

IT IS HEREBY ORDERED THAT the June 18, 2018 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: July 25, 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