United States Department of Labor

Employees’ Compensation Appeals Board

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B.W., Appellant

and

DEPARTMENT OF THE NAVY, JOINT BASE 

PEARL HARBOR -- HICKAM, Honolulu, HI, 

Employer

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Docket No. 20-1033

Issued: November 30, 2020

Appearances: Case Submitted on the Record

Sally F. LaMacchia, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 15, 2020 appellant, through counsel, filed a timely appeal from a December 3, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 The Board notes that, following the December 3, 2019 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

Federal Employees’ Compensation Act3(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 December 3, 2019 as he no longer had residuals or 

disability causally related to his accepted October 1, 2014 employment injury.

FACTUAL HISTORY

On October 14, 2014 appellant, then a 35-year-old pipefitter supervisor, filed a traumatic 

injury claim (Form CA-1) alleging that on October 1, 2014 he strained his lower back when lifting 

a rapper seal while in the performance of duty. OWCP accepted the claim for lumbar sprain. 

Appellant stopped work on October 3, 2014 and returned to full-time, limited-duty work on 

November 17, 2014. On February 9, 2015 he began working four hours per day, five days per 

week in a modified position. OWCP paid appellant wage-loss compensation on the supplemental 

rolls beginning February 9, 2015 and on the periodic rolls beginning April 5, 2015. On August 7, 

2015 appellant resumed full-time modified work. OWCP paid him wage-loss compensation for 

lost night differential.

A magnetic resonance imaging (MRI) scan of the lumbar spine obtained on November 28, 

2014 revealed right more than left facet arthropathy and minimal disc disease at L4-5 without 

significant neural foraminal or spinal canal stenosis. 

An electromyogram (EMG) and nerve conduction velocity (NCV) study dated 

December 5, 2014 showed left sacral plexopathy and/or peripheral neuropathy of the left lower 

extremity.

In a report dated December 29, 2014, Dr. Man Kwan Wong, a Board-certified internist

diagnosed lumbar radiculopathy and lumbar sprain. 

In a report dated February 10, 2014, Dr. Jon F. Graham, a neurosurgeon, obtained a history 

of appellant injuring his back when lifting a box at work on October 1, 2014. He reviewed the 

results of a November 28, 2014 MRI scan and diagnosed multilevel degenerative disc disease with 

mild foraminal stenosis at L2-3, L3-4, and L4-5. 

On July 9, 2015 OWCP referred appellant to Dr. David T. Brough, a Board-certified 

physiatrist, for a second opinion examination. It requested that Dr. Brough address whether 

appellant currently had continued residuals of his accepted employment injury and whether the 

employment injury had caused any additional conditions. 

In a report dated July 9, 2015, Dr. Brough reviewed appellant’s history of an October 1, 

2014 employment injury, noting that appellant had experienced pain in his low back lifting 

industrial cloth from a box. He reviewed the evidence of record, including the results of diagnostic 

 

3 5 U.S.C. § 8101 et seq.
3

testing. Dr. Brough opined that the accepted employment injury had caused lumbago, lumbar 

intervertebral disc derangement, and “likely secondary left lumbosacral radiculopathy, most likely 

at L5 given the decreased left hamstring reflex, weakness of the left extensor hallucis longus 

muscle, and weakness of the left ankle dorsiflexion.” He further noted that appellant likely had 

mild bilateral S1 joint pain and that lumbar radiculopathy had not been ruled out as a diagnosis. 

Dr. Brough provided work restrictions and treatment recommendations, including an EMG to 

evaluate the left lumbosacral paraspinal muscles.

An EMG and NCV testing performed October 16, 2015 revealed moderate chronic left 

radiculopathy at L4-5. 

On February 11, 2016 Dr. Wong opined that the diagnosed conditions of lumbar sprain, 

lumbago, and lumbar radiculopathy were causally related to appellant’s employment injury. He 

advised that objective findings included the EMG test results and examination findings. Dr. Wong 

found that appellant could perform his current duties in a full-time capacity.4

On August 16, 2019 OWCP referred appellant to Dr. WeiChin Chen, a Board-certified 

orthopedic surgeon, for another second opinion examination to determine whether appellant had 

work restrictions or residuals of his October 1, 2014 back strain. It provided Dr. Chen with a 

statement of accepted facts (SOAF) setting forth the accepted condition as a lumbar sprain. The 

SOAF indicated that appellant had worked part-time limited-duty employment since 

February 9, 2015.

In a report dated September 26, 2019, Dr. Chen discussed appellant’s history of injury and 

appellant’s continued complaints of pain in his low back radiating into the bilateral hips and thighs 

and left leg numbness. On examination he found tenderness to palpation of the left paraspinal, 

midline, and S1 joint areas and decreased sensation at L5 and S1 on the left with a negative straight 

leg raise and positive Faber’s test bilaterally. Dr. Chen opined that appellant’s lumbar stain and 

sprain had resolved. He diagnosed degenerative changes of the lumbar spine and advised that 

there was “no objective evidence supporting continued existence of [appellant’s] accepted 

condition.” Dr. Chen related:

“At this time, [appellant] has subjective complaints of axial lumbar pain, 

objectively this could be due to his left paracentral disc extrusion and also facet 

joint arthrosis diffusely throughout his lumbar spine. [He] has on MRI [scan] 

revealing contact with the left S1 nerve root, for which [he] has subjective evidence 

for S1 distribution paresthesia to both light touch and sharp, which is concordant 

with the subjective complaints and his facet arthrosis consistent with subjective 

complaints of his axial lumbar pain. Again, the objective findings are not due to 

[appellant’s] traumatic strain. His traumatic strain at this time has resolved based 

on his MRI [scan] dated April 10, 2017.”

 

4 Dr. Wong continued to submit progress reports describing his treatment of appellant. In a report dated April 4, 

2017, he advised that appellant was unable to return to his regular employment due to continued pain and loss of range 

of motion.
4

Dr. Chen found that appellant required work restrictions and medical treatment due to his 

nonemployment-related conditions.

On October 31, 2019 OWCP advised appellant of its proposed termination of his wageloss compensation and medical benefits as the weight of the evidence established that he no longer 

had any employment-related residuals or disability due to his October 1, 2014 employment injury. 

It afforded him 30 days to submit additional evidence or argument if he disagreed with the 

proposed termination.

Thereafter, OWCP received a September 17, 2019 emergency department report from

Dr. David T. Fujiwara, Board-certified in emergency medicine. Dr. Fujiwara obtained a history 

of appellant injuring his back at work five years earlier. He diagnosed low back pain.

In a progress report dated November 5, 2019, Dr. Wong evaluated appellant for low back 

pain with spasms and diagnosed lumbar sprain.

In an undated report received by OWCP on November 26, 2019 Dr. Wong advised that 

appellant’s initial diagnosis was lumbar sprain, but that electrodiagnostic testing had revealed 

radiculopathy at L4-5. He asserted that lumbar radiculopathy could result in symptoms last for 

years. 

By decision dated December 3, 2019, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective December 3, 2019. It found that the opinion of

Dr. Chen represented the weight of the evidence and established that appellant had no further 

residuals or disability due to his accepted employment injury.

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.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

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective December 3, 2019.

OWCP accepted that appellant sustained lumbar sprain on October 1, 2014. It indicated 

that it was terminating his wage-loss compensation and medical benefits as the September 26, 

 

5 R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

6 A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

7 C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).
5

2019 report from Dr. Chen, an OWCP referral physician, established that appellant had no further 

disability or need for medical treatment due to his lumbar sprain. OWCP provided Dr. Chen with 

a SOAF that indicated that it had only accepted a lumbar sprain due to appellant’s October 1, 2014 

employment injury. 

OWCP, however, had previously referred appellant to Dr. Brough for a second opinion 

examination to determine whether appellant had continued disability or residuals of his accepted 

lumbar sprain and whether appellant had sustained any additional conditions as a result of his 

October 1, 2014 employment injury. In a July 9, 2015 report, Dr. Brough found that appellant had 

sustained lumbago, lumbar intervertebral disc derangement, and likely L5 left lumbar 

radiculopathy due to appellant’s accepted employment injury. Following receipt of his report, 

OWCP failed to either expand acceptance of the claim or further develop the evidence. 

Once OWCP undertakes development of the medical evidence, it has the responsibility to 

do so in a manner that will resolve the relevant issues in the case.8 It failed to fully develop the 

issue of claim expansion to determine whether it should expand acceptance of the claim to include 

the additional conditions diagnosed by its referral physician, Dr. Brough, and whether, if 

established, these conditions resulted in continuing disability from employment or the need for 

medical treatment.

9

 

Additionally, OWCP provided Dr. Chen with a SOAF that indicated that appellant had 

worked four hours per day from February 9, 2015 to the present. Appellant, however, returned to

full-time employment on August 7, 2015. OWCP’s procedures provide that a claimant’s 

employment history is an essential element of the SOAF.10 When a physician renders a medical 

opinion based on an incomplete or inaccurate SOAF, the probative value of the opinion is seriously 

diminished or negated altogether.11

For the above-stated reasons, OWCP has not met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits.12

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective December 3, 2019.

 

8 See R.B., Docket No. 20-0109 (issued June 25, 2020); B.W., Docket No. 19-0965 (issued December 3, 2019).

9 See J.T., Docket No. 19-1723 (issued August 24, 2020).

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.6(a)(2) 

(September 2009).

11 Id. at Chapter 3.600(3) (October 1990). See Y.D., Docket No. 17-0461 (issued July 11, 2017).

12 J.T., supra note 9.
6

ORDER

IT IS HEREBY ORDERED THAT the December 3, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: November 30, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board