United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.D., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

HOSPITAL PENSACOLA, FAMILY MEDICAL 

CLINIC, Pensacola, FL, Employer

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Docket No. 19-0308

Issued: July 24, 2019

Appearances: Case Submitted on the Record

Ronald S. Webster, 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 November 27, 2018 appellant, through counsel, filed a timely appeal from an 

October 9, 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 October 9, 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 met its burden of proof to terminate appellant’s wageloss compensation, effective August 29, 2016; and (2) whether appellant has met her burden proof 

to establish continuing disability or residuals causally related to her accepted employment injuries 

on or after August 29, 2016.

FACTUAL HISTORY

On January 24, 2011 appellant, then a 53-year-old licensed practical nurse, filed a 

traumatic injury claim (Form CA-1) alleging that on January 19, 2011 she slipped and fell on an 

unmarked wet floor outside her office door while in the performance of duty. She indicated that 

the floor was saturated with floor stripper. Appellant alleged injuries to her neck, back, abdominal 

muscles, right leg, and right foot. She returned to light-duty work on January 20, 2011.

By decision dated May 5, 2011, OWCP accepted appellant’s claim for sacroiliitis. Later,

on June 15, 2011, it expanded acceptance of appellant’s claim to include lumbar sprain.

On August 8, 2011 appellant’s attending physician released her to light-duty work four 

hours per day. On October 28, 2011 appellant’s lumbar magnetic resonance imaging (MRI) scan 

demonstrated superimposed annual tears at L1-2 and L4-5 as well as degenerative disc disease at 

L3-4.

Beginning November 21, 2011, appellant filed claims for wage-loss compensation (Form 

CA-7) due to leave without pay for four hours a day. OWCP authorized wage-loss compensation 

benefits. On May 1, 2012 appellant’s physician found that she was totally disabled. On August 15, 

2012 OWCP entered appellant on the periodic rolls for total disability.

On April 29, 2013 OWCP referred appellant, a statement of accepted facts (SOAF), and a 

list of questions to Dr. Raymond Fletcher, a Board-certified orthopedic surgeon, for a second 

opinion evaluation. Dr. Fletcher completed a report on May 20, 2013, noting appellant’s history 

of injury and medical history. He determined that her lumbar sprain had resolved, but diagnosed 

permanent aggravation of the lumbar spondylosis, and lumbar radiculopathy at L4-5. Dr. Fletcher

found appellant was unable to return to her date-of-injury position as a licensed practical nurse due 

to her current work-related lumbar condition and the need for pain medication. In a June 5, 2013 

addendum, he opined that she had lumbar residuals from the January 19, 2011 work injury and 

that she was currently totally disabled due to the need for pain medication.

On October 3, 2013 OWCP expanded acceptance of appellant’s January 19, 2011 

traumatic injury claim to include urinary complications, permanent aggravation of lumbar 

spondylosis, and lumbar radiculopathy.

On August 18, 2014 OWCP referred appellant, an updated SOAF, and a list of questions 

to Dr. Richard C. Smith, a Board-certified orthopedic surgeon, for a second opinion evaluation. In 

a September 11, 2014 note, Dr. Smith performed a physical examination and diagnosed lumbar 

sprain, sacroiliitis, lumbar radiculopathy, and urinary complication. He completed a report on 

September 15, 2014 and listed his objective findings as tenderness and limited range of motion. 

Dr. Smith found that appellant’s aggravation of preexisting lumbar spondylosis required further 

medical treatment and caused disability for work. He found that appellant was not totally disabled, 
3

but could not return to her date-of-injury position as a licensed practical nurse and suggested a 

functional capacity evaluation (FCE) to assess permanent restrictions. On October 16, 2014 

appellant underwent an FCE which demonstrated that she could work at the sedentary level with 

maximal lifting and carrying up to 10 pounds, frequent lifting and carrying objects of negligible 

weight, sitting primarily with brief and intermittent periods of standing and or walking.

In a letter dated July 23, 2015, OWCP authorized Dr. Jeff Buchalter, Board-certified in 

pain management, to examine appellant due to her request for a change of physicians. In his 

August 26, 2015 report, Dr. Buchalter noted appellant’s history of injury on January 19, 2011 and 

reviewed her diagnosed studies. He diagnosed L1-2 and L4-5 annular tears, L4-5 disc bulge, 

history of sacroiliitis, history of lumbar radiculopathy, and permanent aggravation of lumbar 

spondylosis. Dr. Buchalter found that she could perform sedentary work. On November 4, 2015

he diagnosed chronic pain syndrome, sacroiliitis, spondylitis with radiculopathy, disc degeneration 

of the lumbar region, muscle spasm, and myalgia. On November 9 and 30, 2016 Dr. Fletcher

performed a right lumbar facet injection. On February 24, 2016 appellant underwent a lumbar 

epidural steroid injection at L5-S1. In a March 23, 2016 note, Dr. Buchalter reported that appellant 

received no improvement following her last injection. He prescribed chiropractic treatment and 

massage to improve her pain level.

On May 16, 2016 OWCP referred appellant, a SOAF, the medical record, and a list of 

questions to Dr. George Andrew Corbett, a Board-certified orthopedic surgeon, for a second 

opinion evaluation.4 In his May 31, 2016 report, Dr. Corbett noted his review of the SOAF, 

appellant’s history of injury, and her diagnostic test results. He performed a physical examination 

and found brisk reflexes to both the patellar tendon and heel cord. Dr. Corbett found no obvious 

degenerative joint disease or degenerative disc disease on x-rays. He diagnosed low back pain, 

undefined etiology. In response to OWCP’s questions, Dr. Corbett also diagnosed mild residual 

right sacroiliitis, but opined that the original contusion had resolved. He found that based on his 

examination, appellant had no objective findings to support ongoing disability. Dr. Corbett agreed 

that appellant’s work capacity was commensurate with her October 16, 2014 FCE, i.e., sedentary 

work, lifting and carrying up to 10 pounds, frequent lifting and carrying objects of negligible 

weight, sitting primarily with brief and intermittent periods of standing and or walking. He also 

opined that appellant should be able to continue to work in her date-of-injury position as a licensed 

practical nurse based on his examination.

In a July 14, 2016 note, Dr. Buchalter noted appellant’s history of injury and ongoing 

severe back pain. He reported L1-2 and L4-5 annular tears with probable discogenic pain, 

myofascial pain, and narcotic dependence. Dr. Buchalter diagnosed chronic pain syndrome, 

sacroiliitis, spondylitis, panniculitis, muscle spasm and myalgia. He performed trigger point 

injections.

On July 21, 2016 OWCP proposed to terminate appellant’s wage-loss compensation based 

on Dr. Corbett’s opinion. It afforded appellant 30 days to respond if she disagreed with the 

proposed termination. Appellant responded on August 5, 2016 and disagreed with the proposed 

termination. She alleged that her continuing back symptoms prevented her from working. 

Appellant resubmitted test results and a date-of-injury position description, which indicated that 

 

4 The SOAF included a description of the physical duties of appellant’s date-of-injury position listed as extensive 

walking, standing, stretching, lifting, and bending in caring for patients, the ability to physically control or defend 

against emotionally ill or confused patients.
4

(extensive walking, standing, stretching, lifting, and bending in caring for patients was required,

as was the ability to physically control or defend against emotionally ill or confused patients.

By decision dated August 29, 2016, OWCP terminated appellant’s wage-loss 

compensation benefits effective that date based on Dr. Corbett’s opinion that she could return to 

her date-of-injury job. On September 19, 2016 appellant, through counsel, requested an oral 

hearing, in the form of a telephonic hearing, before an OWCP hearing representative.

In a September 13, 2016 note, Dr. Buchalter reviewed appellant’s MRI scan and found 

multilevel lumbar discogenic changes. He performed a discogram and found disc displacement, 

disc degeneration, radiculopathy, and low back pain. Appellant also provided several notes from 

Audrey Sisney, a registered nurse practitioner.

On April 5, 2017 appellant testified before an OWCP hearing representative. She noted 

that she had not worked since “May of 2011.” Appellant described her symptoms of urinary 

incontinence, constant back spasms, and tingling down her right leg. She noted that she continued 

to receive treatment from Dr. Buchalter and Ms. Sisney. Appellant asserted that she could not 

currently perform her date-of-injury position.

On April 24, 2017 appellant resubmitted Dr. Buchalter’s July 14 and September 13, 2016 

notes and provided a September 4, 2013 report regarding her psychiatric condition as well as notes 

from Ms. Sisney. On May 3, 2017 she provided an April 28, 2017 MRI scan which demonstrated 

L1-2 paracentral disc protrusion, mild diffuse disc bulges at L3-4 and L4-5, and minimal annular 

bulging at L5-S1. Appellant also provided physical therapy notes from Kendra Keyes Metcalfe, a 

physical therapist.

By decision dated May 16, 2017, OWCP’s hearing representative affirmed OWCP’s 

August 29, 2016 termination of wage-loss compensation. She determined that Dr. Corbett’s 

reports constituted the weight of the medical opinion evidence.

In a September 8, 2017 note, Dr. Buchalter examined appellant due to right back and 

buttock pain. He found right-sided paraspinal spasms. Dr. Buchalter diagnosed intervertebral disc 

degeneration and lumbar radiculopathy. Appellant submitted an October 6, 2017 note from

Ms. Sisney. On December 15, 2017 Dr. Buchalter noted that appellant received over 50 percent 

relief from her most recent lumbar epidural steroid injection. He continued to diagnose lumbar 

radiculopathy and performed an additional lumbar epidural steroid injection. On January 10, 2018

Dr. Buchalter diagnosed multilevel lumbar spondylosis and annular tears due to her 2011 

employment injury.

On March 7 and May 16, 2018 appellant, through counsel, requested reconsideration of the 

May 16, 2017 decision. Counsel contented that Dr. Corbett’s report was insufficiently detailed 

and well reasoned to constitute the weight of medical opinion evidence.

In a report dated February 19, 2018, Dr. Buchalter opined that appellant’s work-related low 

back injuries continued to require treatment including injective therapy. He further opined that 

appellant’s FCE established her work restrictions. On May 14, 2018 Dr. Buchalter diagnosed disc 

degeneration and radiculopathy lumbar region. He provided an injection and medications. 

Appellant also submitted March 26, and April 27, 2018 notes from Donna L. Garrett, a certified 

registered nurse practitioner.
5

By decision dated May 31, 2018, OWCP denied modification of the May 16, 2017 

decision. It found that Dr. Corbett’s reports were entitled to the weight of the medical evidence 

and established that appellant had no disability causally related to her accepted January 19, 2011 

employment injuries.

In a note dated August 1, 2018, Dr. Buchalter diagnosed lumbar spondylosis with 

degenerative disc changes and disc protrusion. He indicated that there was no change in 

appellant’s work restrictions. On June 7, 2018 Ms. Garrett completed a treatment note.

On September 13, 2018 appellant, through counsel, requested reconsideration of the 

May 31, 2018 merit decision. He alleged that there was a conflict of medical opinion evidence 

requiring an impartial medical evaluation.

In a September 10, 2018 note, Dr. Buchalter diagnosed disc degeneration, lumbar 

radiculopathy, spondylosis, and sacrococcygeal disorders. He performed a caudal epidural steroid 

injection.

By decision dated October 9, 2018, OWCP denied modification of the May 31, 2018 merit 

decision.

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.5 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.6 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.7

ANALYSIS -- ISSUE 1

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation, effective August 29, 2016.

OWCP accepted appellant’s January 19, 2011 employment injury for sacroiliitis, lumbar 

strain, urinary complications, permanent aggravation of lumbar spondylosis, and lumbar 

radiculopathy. By decision dated August 29, 2016, OWCP terminated wage-loss compensation 

benefits for the accepted back conditions, finding that the weight of the medical evidence rested 

with the second opinion physician, Dr. Corbett.

In his May 31, 2016 report, Dr. Corbett noted reviewing the SOAF, which included the 

physical requirements of her date-of-injury position as a licensed practical nurse, appellant’s 

history of injury, and her medical test results. Dr. Corbett diagnosed low back pain, undefined 

 

5 R.P., Docket No. 17-1133 (issued January 18, 2018); D.A., Docket No. 18-0476 (issued October 10, 2018); S.F.,

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

6 R.P., id; D.A., id.; I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7 R.P., supra note 5; D.A., supra note 5; J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).
6

etiology. In response to OWCP’s questions, he also diagnosed mild residual right sacroiliitis, but 

opined that the original contusion had resolved. Dr. Corbett found that based on his examination, 

appellant had no objective findings to support ongoing disability. He noted that he agreed with 

appellant’s work capacity as detailed in her October 16, 2014 FCE, i.e., sedentary work, including 

lifting no more than 10 pounds. Dr. Corbett also determined that appellant could accommodate 

those work restrictions and return to her date-of-injury position as a licensed practical nurse based 

on his examination. 

The Board finds that Dr. Corbett did not provide any medical reasoning or explanation of

how he could find both that appellant could only work in accordance with her FCE restrictions and 

at the same time could return to her date-of-injury position as a licensed practical nurse. The FCE 

provided that appellant had a lifting restriction of 10 pounds and could perform a sedentary 

position primarily sitting with brief and intermittent periods of standing and or walking. 

Alternatively, appellant’s date-of-injury position, a licensed practical nurse, required extensive 

walking, standing, stretching, lifting, and bending in caring for patients, as well as the ability to 

physically control or defend against emotionally ill or confused patients.8 

The Board finds that Dr. Corbett’s opinions on disability are inconsistent and conclusory 

in nature and lack sufficient medical rationale to support the termination of appellant’s wage-loss 

compensation benefits.9 Dr. Corbett offered no supporting medical rationale to support either of 

his opinions regarding appellant’s ability to work. Due to the internal inconsistencies in

Dr. Corbett’s report, the Board cannot determine whether it was his considered opinion that 

appellant could return to her date-of-injury position as a licensed practical nurse.10 Because his 

second opinion report failed to provide medical rationale in support of his divergent conclusions,

Dr. Corbett’s opinion is of diminished probative value and is insufficient to OWCP to meet its 

burden of proof to justify the termination of appellant’s wage-loss compensation benefits.11 

The Board thus finds that OWCP has not met its burden of proof to establish that appellant 

no longer had residuals or disability due to the accepted conditions.

12

CONCLUSION

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation, effective August 29, 2016.

 

8 S.B., Docket No. 18-0700 (issued January 9, 2019).

9

Id.

10 D.A., supra note 5; S.W., Docket No. 18-0005 (issued May 24, 2018).

11 S.B., supra note 8; A.R., Docket No. 12-0443 (issued October 9, 2012); see also P.F., Docket No. 13-0728 (issued 

September 9, 2014); T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report consisting solely of 

conclusory statements without supporting rationale is of little probative value).

12 In light of the disposition of the first issue, the second issue regarding appellant’s continuing residuals or disability 

is rendered moot. M.R., Docket No. 17-0634 (issued July 24, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the October 9, 2018 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: July 24, 2019

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