United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.B., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

CORRECTIONAL INSTITUTION,

Greenville, IL, Employer

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Docket No. 18-1121

Issued: January 8, 2019

Appearances: Case Submitted on the Record

Daniel M. Goodkin, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 14, 2018 appellant, through counsel, filed a timely appeal from a February 23, 

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 to consider the merits of the 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 February 23, 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

ISSUE

The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective February 23, 2018.

FACTUAL HISTORY

On December 18, 2008 appellant, then a 43-year-old sports specialist, filed a traumatic 

injury claim (Form CA-1) alleging that, on November 28, 2008, a soccer ball struck her on the left 

side of her face while she was supervising a soccer tournament while in the performance of duty. 

She experienced headaches and ear and neck pain. Appellant stopped work and returned to lightduty work on January 12, 2009. On May 11, 2009 OWCP accepted appellant’s claim for 

aggravation of cervical disc disease at C4-5, headache, and unspecified head injury. It paid

appellant wage-loss compensation on the periodic rolls commencing February 16, 2010.4

OWCP proposed to terminate appellant’s wage-loss compensation and medical benefits on 

September 25, 2012. It afforded appellant 30 days to respond. 

On November 12, 2012 appellant provided additional medical evidence. In a report dated 

February 8, 2011, Dr. Naseer diagnosed C4-5 disc protrusion and radiculopathy, hearing loss, and 

postconcussive syndrome as causally related to the November 28, 2008 employment injury. He 

also indicated that the November 28, 2008 employment injury had aggravated appellant’s 

underlying depression. Dr. Naseer found that appellant was totally disabled due to her workrelated injuries.

By decision dated November 14, 2012, OWCP terminated appellant’s wage-loss 

compensation and medical benefits as she no longer had residuals from her November 28, 2008 

employment injury.

On December 11, 2012 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. In a letter dated March 11, 2012, she asked that the 

request for an oral hearing be amended to a review of the written record. By decision dated 

May 30, 2013, OWCP’s hearing representative found that OWCP had not met its burden of proof 

to terminate appellant’s wage-loss compensation and medical benefits. 

 

4

In a report dated November 25, 2009, appellant’s physician, Dr. Riaz A. Naseer, a Board-certified neurologist, 

opined that appellant had developed a new bulging disc in her neck at C4-5 based on a cervical spine magnetic 

resonance imaging (MRI) scan, and diagnosed cervical radiculopathy and subjective tinnitus. He recommended 

permanent light-duty restrictions.

On May 18, 2012 OWCP referred appellant for a second opinion evaluation with Dr. Patrick A. Hogan, neurologist. 

In his June 12, 2012 report, Dr. Hogan concluded that appellant could return to her date-of-injury position without 

restrictions. In a letter dated August 9, 2012, OWCP informed appellant that there was a conflict of medical opinion 

evidence between Drs. Naseer and Hogan. It referred her for an impartial medical examination with Dr. Panduranga 

Kini, a Board-certified neurologist. In his September 14, 2012 report, Dr. Kini diagnosed degenerative disc disease 

and found that this was not related to her November 28, 2008 employment injury. He opined that appellant could 

return to her date-of-injury position without restrictions.
3

On August 15, 2013 OWCP reentered appellant on the periodic rolls for wage-loss 

compensation, effective June 30, 2013.5

In reports dated January 23 and February 19, 2014, Dr. Naseer opined that appellant’s 

diagnosed conditions of cervical radiculopathy, headache, tinnitus, hearing loss in the left ear, left 

ear pain, and postconcussion syndrome were medically connected to the employment injury on 

November 28, 2008. He also found that the work injury aggravated her preexisting injuries which 

involved the back, neck, and head. Dr. Naseer opined that appellant was totally disabled due to 

the November 28, 2008 employment injury.

In notes dated May 12 and December 2, 2015 as well as October 24, 2016, Dr. Naseer, 

reviewed electrodiagnostic testing and found that disc protrusion was attributed to head jerk when 

she sustained trauma to her head with the soccer ball on November 28, 2008. He again opined that 

appellant was totally disabled. Dr. Naseer completed a report on March 1, 2017 and diagnosed 

cervical radiculopathy, headache, tinnitus, hearing loss in the left ear, left ear pain, and 

postconcussion syndrome. He opined that these conditions were all medically connected to the 

November 28, 2008 employment injury by direct cause. Dr. Naseer also found that the 

employment injury aggravated her concentration issues, memory problems, and cognitive abilities. 

He found that appellant was totally disabled due to her November 28, 2008 employment injury.

On June 8, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. Charles Mannis, a Board-certified orthopedic surgeon. In his July 3, 2017 report, Dr. Mannis 

reviewed appellant’s 2008 and 2012 MRI scans. He noted appellant’s history of injury on 

November 28, 2008 and reported that, during his physical evaluation, appellant would not perform 

range-of-motion exercises as she was afraid of resulting pain. Dr. Mannis found sensory 

examination of the left hand was diffusely diminished to pinprick in all dermatomal spheres. He

diagnosed chronic cervical syndrome with degenerative arthritis. Dr. Mannis noted that appellant 

had no objective findings and that symptoms were markedly disproportionate to the objective 

complaints. He concluded that being struck by the soccer ball on November 28, 2008 may have 

caused some cervical myositis, but was not responsible for any of the radiographic findings. 

Dr. Mannis determined that appellant had recovered from the injury with no work restrictions.

OWCP found a conflict of medical opinion evidence between Drs. Naseer and Mannis

regarding appellant’s ongoing work-related disability and residuals. In a letter dated October 2, 

2017, it referred appellant, a SOAF, and a list of questions for an impartial medical examination 

with Dr. R. Peter Mirkin, a Board-certified orthopedic surgeon.

In a report dated October 23, 2017, Dr. Mirkin described appellant’s November 28, 2008 

employment injury of being struck in the face with a soccer ball. He reviewed appellant’s 

diagnostic studies and medical treatment. Dr. Mirkin reported that on physical examination 

 

5 Following the hearing representative’s directives, OWCP referred appellant to Dr. Hogan on August 9, 2013. 

Dr. Hogan completed a supplemental report dated August 26, 2013. He opined that appellant had no evidence of a 

neurological disorder, that she might have sustained a mild facial contusion on November 28, 2008, and that no 

permanent conditions were involved. On November 13, 2013 OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits based on Dr. Hogan’s report. On March 11, 2015 it referred appellant, a statement 

of accepted facts (SOAF), and list of questions to Dr. Anthony Collins, a Board-certified neurologist, for an impartial 

medical examination. Dr. Collins completed a report on April 17, 2015 and found that appellant’s current symptoms 

were not related to her November 28, 2008 employment injury and that she had no residuals of her accepted 

employment injury and required no treatment for any of the accepted conditions.
4

appellant walked with an exaggerated antalgic gait and complained of pain when he lightly touched 

her head or neck, both of which are Waddell signs. He also found that she exhibited only five 

percent of normal cervical range of motion, that deep tendon reflexes were intact, and that motor 

and sensory examinations revealed no deficits. Dr. Mirkin diagnosed multilevel spondylitic 

disease based on x-rays. He opined that appellant’s November 28, 2008 employment injury

resulted in a strain injury to her cervical spine. Dr. Mirkin further noted that she developed 

degenerative disease “over the years” which was not related to her employment injury. He found 

no indication that appellant had disability as a result of her accepted employment injury and 

determined that she could return to work in her date-of-injury position without restrictions.

On December 21, 2017 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits based on Dr. Mirkin’s report. It afforded her 30 days to submit additional 

evidence or argument if she disagreed with the proposed termination.

Counsel responded on January 2, 2018 and contended that Dr. Mirkin’s report was not 

based on an accurate factual history as he did not rely on OWCP’s acceptance of aggravation of 

cervical disc disease at C4-5, headache, and unspecified head injury, instead finding that she 

sustained a cervical strain. He further contended that Dr. Mirkin did not provide medical rationale 

in support of his opinion that appellant had no continuing disability or medical residuals as a result 

of her accepted November 28, 2008 employment injury.

By decision dated February 23, 2018, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective February 23, 2018. It found that Dr. Mirkin’s report 

was entitled to the special weight of the medical evidence and established that appellant had no 

medical residuals or disability for work causally related to her November 28, 2008 employment 

injury.

LEGAL PRECEDENT

According to FECA, once OWCP accepts a claim and pays compensation, it has the burden 

of proof to justify termination or modification of an employee’s benefits.6 OWCP may not 

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

related to the employment.7 Its burden of proof includes the necessity of furnishing rationalized 

medical opinion evidence based on a proper factual and medical background.8 The right to medical 

benefits for an accepted condition is not limited to the period of entitlement for disability 

compensation.9 To terminate authorization for medical treatment, OWCP must establish that 

 

6 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).

7 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).

8 See R.P., id.; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9 See R.P., id.; 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).
5

appellant no longer has residuals of an employment-related condition which require further 

medical treatment.10

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.11 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.12 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.13

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 23, 2018.

Appellant’s attending physician, Dr. Naseer, continued to support her disability for work 

and ongoing medical treatment due to her accepted employment injuries and additional conditions. 

OWCP referred appellant for a second opinion evaluation with Dr. Mannis. In his July 3, 2017 

report, Dr. Mannis found that appellant had no ongoing medical residuals or disability due to her 

November 28, 2008 employment injury. The Board finds that, due to the disagreement between 

Drs. Naseer and Mannis, OWCP properly referred appellant for an impartial medical examination 

with Dr. Mirkin to resolve the conflict of medical opinion evidence. 

On October 23, 2017 Dr. Mirkin described appellant’s November 28, 2008 employment 

injury and reviewed her medical history. He provided findings on physical examination and 

diagnosed multilevel spondylitic disease based on x-rays. Dr. Mirkin concluded that appellant’s 

November 28, 2008 employment injury resulted only in a strain injury to her cervical spine. He

further noted that she developed degenerative disease “over the years” which was not related to 

her employment injury. Dr. Mirkin found that appellant had no disability as a result of her 

accepted employment injury and that she could return to work in her date-of-injury position 

without restrictions.

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

the medical evidence as it is not based on an accurate factual background and does not contain 

medical reasoning supporting the conclusions made in the report. He noted a diagnosis of cervical 

strain as a result of the accepted November 28, 2008 employment injury. However, as noted 

above, OWCP accepted appellant’s claim for aggravation of cervical disc disease at C4-5, 

 

10 See R.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); Furman G. 

Peake, id.

11 5 U.S.C. § 8123(a); see R.P., id.; 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).

12 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

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

headache, and unspecified head injury. Dr. Mirkin did not explain why or how he believed that 

appellant’s accepted conditions had resolved or were no longer related to the accepted employment 

injury. He did not accept the facts as presented in the SOAF in rendering his medical opinion. 

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.14 As such,

Dr. Mirkin’s opinion is of insufficient probative value to carry the special weight of the medical 

evidence as an impartial medical examiner.15

The Board thus finds that OWCP erred in relying on his opinion as the basis to terminate 

wage-loss compensation and medical benefits for the accepted employment conditions. 

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 23, 2018.

ORDER

IT IS HEREBY ORDERED THAT the February 23, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: January 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

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

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