United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.Y., Appellant

and

DEPARTMENT OF THE AIR FORCE, TINKER 

AIR FORCE BASE, OK, Employer

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Docket No. 19-1683

Issued: March 16, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 6, 2019 appellant filed a timely appeal from a March 14, 2019 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

 

1 The Board notes that following the March 14, 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.
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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

ISSUES

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

wage-loss compensation and medical benefits, effective May 27, 2018, as he no longer had 

residuals or disability due to his accepted October 18, 2011 employment injury; and (2) whether 

appellant has met his burden of proof to establish continuing employment-related disability or 

residuals on or after May 27, 2018. 

FACTUAL HISTORY

On November 9, 2011 appellant, then a 37-year-old electrician, filed a traumatic injury 

claim (Form CA-1) alleging that on October 18, 2011 he was helping a coworker lift a tool box 

off a work truck to place it on the floor when he twisted his back while in the performance of duty. 

OWCP accepted the claim for degeneration of lumbar or lumbosacral intervertebral disc and sprain 

of back, left lumbar region. Appellant stopped work on the date of injury and OWCP paid him

wage-loss compensation on the supplemental rolls. He returned to work in a light-duty capacity 

from September 9 through October 16, 2013, and from April 14 through 16, 2014. Appellant

thereafter stopped work again and did not return. OWCP paid him wage-loss compensation on the 

periodic rolls as of May 4, 2014.

Appellant sought medical treatment beginning October 19, 2011, the day following the 

employment incident, and underwent a course of lumbar injections and physical therapy for his 

conditions. A December 12, 2011 magnetic resonance imaging (MRI) scan of the lumbar spine 

revealed a moderate to large central protrusion and borderline extrusion at L4-5, abutting the 

subarachnoid space at the origins of the L5 nerve roots. On November 16, 2012 Dr. Shon Cook, 

a Board-certified neurological surgeon, proposed L4-5 decompression and interbody fusion 

surgery. Appellant declined to undergo back surgery. 

Subsequently, appellant sought treatment with Dr. John W. Ellis, Board-certified in family 

and environmental medicine. In a February 15, 2017 medical report, Dr. Ellis determined that 

appellant’s lumbar strain and degeneration of lumbosacral intervertebral disc were permanent in 

nature. He reported that appellant was unable to work in any capacity and his conditions would 

 

2 5 U.S.C. § 8101 et seq.

3 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, he asserted that oral argument should be granted so that he could have 

the opportunity to explain why he should at least receive the offered training and explain how his injury has affected 

his life and his family. The Board, in exercising its discretion, denies appellant’s request for oral argument because 

this matter requires an evaluation of the medical evidence presented. As such, the arguments on appeal can adequately 

be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay 

issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this 

decision is based on the case record as submitted to the Board.
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continue to deteriorate over time. Dr. Ellis opined that appellant’s disability was a direct result of 

the work-related injuries.

On September 26, 2017 OWCP received a September 20, 2017 report of investigation from 

the employing establishment injury compensation specialist. The employing establishment 

requested that OWCP schedule a second opinion examination to evaluate appellant’s conditions 

and work restrictions, noting that his physician claimed that he was unable to perform chores due 

to his work-related injury. The compensation specialist explained that the employing 

establishment conducted surveillance on appellant from September 7 through 9, 2017, which 

demonstrated his ability to bend, stoop, lift, and walk without limitations or signs of duress as 

evidenced in the accompanying video provided to OWCP. In the video, appellant was seen picking 

up and carrying a child without any limitations, bending down several times to pat a dog, and was 

walking normally without any visible medical aids. 

On October 26, 2017 OWCP referred appellant to Dr. Gregory Zeiders, a Board-certified 

orthopedic surgeon, for a second opinion evaluation and determination regarding whether he had 

any residuals or disability causally related to the October 18, 2011 work-related injury.

In a separate letter to appellant also dated October 26, 2017, OWCP advised him that a 

surveillance video submitted by the employing establishment had been provided to the second 

opinion physician as part of the case record.4

On January 29, 2018 Dr. Zeiders evaluated appellant for the purpose of the second opinion 

evaluation. In his February 18, 2018 report, he documented appellant’s physical examination 

findings, discussed his history of injury, and summarized past medical reports and diagnostic 

studies dating back to the October 18, 2011 work-related injury. In addition, Dr. Zeiders discussed 

the surveillance video, which showed appellant engaging in physical activity when he lifted a small 

child from a car seat, and also demonstrated active mobilization in flexion with no antalgic gait, 

both in ambulation as well as lifting. He opined that appellant no longer suffered from residuals 

or disability as a result of the October 18, 2011 employment injury. Dr. Zeiders noted that upon 

examination, appellant was able to ambulate through the hallway with no significant antalgic gait 

or need for assistive devices. He observed flexion, extension, and range of motion (ROM)

measurements, noting that appellant’s complaints were not consistent with his limited physical 

examination findings. Dr. Zeiders opined that there were no ongoing spinal conditions 

permanently worsened by the lifting event due to appellant’s convoluted history, confusing 

subjective complaints, and physical examination findings. He explained that there were no 

examination findings that lent credence to his subjective complaints and no residual disabling 

component to his October 18, 2011 injury. Dr. Zeiders found that no further treatment was needed, 

maximum medical improvement had been reached, and appellant could return to full-duty work 

without restrictions.

In a February 21, 2018 report, Dr. Ellis reported that appellant’s examination revealed 

decreased ROM of the lumbar spine, continued tightness, stiffness, and tenderness in the 

paraspinous muscles of the lumbar spine, and radiculopathy in the legs bilaterally. He reported 

 

4 The record reflects that on November 3, 2017 appellant requested a copy of the surveillance video, which was 

provided to him on November 29, 2017. 
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that any prolonged standing, sitting, and walking increased his pain and symptoms, explaining that 

appellant struggled with everyday activities and chores. Dr. Ellis determined that appellant’s 

lumbar strain and degeneration of lumbosacral intervertebral disc had not resolved and were 

permanent in nature. He found that appellant was unable to work in any capacity and that his 

conditions would continue to deteriorate over time. Dr. Ellis stated that appellant’s disability was 

a direct result of his work-related injuries and that he should continue to follow-up on a monthly 

basis for medication refills and referrals.

By notice dated April 11, 2018, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits because he no longer had any residuals or disability causally 

related to his October 18, 2011 work-related injury. 

In a May 1, 2018 narrative statement, appellant contested the proposed termination arguing 

that Dr. Zeiders did not spend enough time with him during the examination, and therefore, could 

not have properly assessed his medical conditions. 

In support of his claim, appellant submitted a May 7, 2018 report from Dr. Ellis who 

discussed his history of injury and summarized previous medical records. Dr. Ellis noted that 

appellant continued to complain of severe pain in the midline of the low back. While he initially 

reported numbness and weakness down the left leg, appellant was now experiencing these 

symptoms bilaterally. Dr. Ellis reported that appellant had to use a cane because of instability, 

mostly out of his left leg, which gave way on him frequently. He further complained of radicular 

pain shooting into the dorsal and lateral aspects of both feet and into his left knee. Dr. Ellis 

provided findings on physical examination, which revealed spasms in the thoracic and lumbar 

muscles, loss of normal lordotic curvature, and decreased ROM. He diagnosed lumbar sprain and 

lumbosacral disc degeneration that were ongoing conditions, which also resulted in impingement 

to the spinal nerves and bladder dysfunction. Dr. Ellis explained that the injury to appellant’s back 

and the deranged discs were causing more impingement of the right L4, L5, and S1 spinal nerves 

and left L3, L4, L5, and S1 spinal nerves, as well as cauda equine syndrome resulting in decreased 

sexual and bladder dysfunction. He further explained that the chronic pain and sleep deprivation 

had caused neurochemicals in the brain resulting in organic depression. Dr. Ellis opined that the 

additional conditions and ongoing disability were related to appellant’s employment injury. He 

reported that appellant did not need to undergo an FCE and recommended a magnetic resonance 

imaging (MRI) scan of the lumbar spine and an electromyography/nerve conduction velocity 

(EMG/NCV) study. Dr. Ellis concluded that appellant was temporarily totally disabled until the 

diagnostic reports could be evaluated to determine whether he was capable of some type of 

sedentary work. 

By decision dated May 24, 2018, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective May 27, 2018. It found that the weight of the medical evidence 

rested with Dr. Zeiders’ February 19, 2018 opinion, which established that appellant’s accepted 

work-related conditions had ceased and he no longer had any residuals or disability as a result of 

the October 18, 2011 employment injury.

On June 4, 2018 appellant requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review. 
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In a narrative statement received on June 11, 2018, appellant contested the termination 

decision and noted submission of new medical reports, which provided updated examination and 

clinical findings.

Appellant submitted a May 18, 2018 MRI scan of the lumbar spine from Dr. Oliver A. 

Cvitanic, a Board-certified diagnostic radiologist, in support of his claim. Dr. Cvitanic described 

a small circumferential disc bulge at L4-5, which was centered to the left side, but did not cause 

significant epidural encroachment either centrally or laterally. The remainder of the lumbar spine 

had a normal appearance. 

In a May 22, 2018 diagnostic report, Dr. Gabriel Pitman, a Board-certified neurologist, 

provided findings on physical examination and noted review of the May 18, 2018 MRI scan of the 

lumbar spine. He reported that appellant’s EMG/NCV study revealed right L3-4 radiculopathy 

and normal EMG findings of the left lower extremity. Dr. Pitman diagnosed left paracentral disc 

herniation at L4-5, right L3-4 radiculopathy, and traumatic sacral shearing/sacroiliitis.

In a May 31, 2018 addendum report, Dr. Ellis reported that appellant’s MRI scan of the 

lumbar spine revealed a small L4-5 circumferential disc bulge centered to the left, which did not 

cause significant encroachment. He also noted that EMG/NCV testing demonstrated right L3-4 

radiculopathy. Dr. Ellis reported that Dr. Pitman noted a stretching injury, discogenic pain, and 

recommended surgical intervention due to the fact that appellant failed conservative treatments. 

He addressed the May 24, 2018 termination decision arguing that appellant’s medical benefits 

should be restored immediately. Dr. Ellis further recommended a neurosurgeon for surgical 

evaluation to prevent permanent nerve damage from occurring. Appellant also submitted a 

separate medical report from Dr. Ellis dated August 16, 2018, which repeated the findings of his 

May 31, 2018 report.

By decision dated September 18, 2018, OWCP’s hearing representative affirmed, in part, 

the May 24, 2018 decision, finding that OWCP had met its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective May 27, 2018, based on the medical 

opinion of Dr. Zeiders, its second opinion examiner. The hearing representative found, however, 

that the case was not in posture for decision as to whether appellant had continuing residuals or 

disability on or after May 27, 2018 causally related to his accepted employment injury. The 

hearing representative instructed OWCP to remand the case and the newly submitted medical 

evidence to Dr. Zeiders for a supplemental report regarding whether appellant had any continuing 

residuals or disability of his employment injury. 

On February 25, 2019 OWCP referred appellant, the additional medical and diagnostic 

reports, an updated statement of accepted facts (SOAF), and a job description for the position of 

electrician to Dr. Zeiders to determine whether the most recently received medical submissions 

changed his opinion regarding appellant’s medical condition and ability to work.

In his February 25, 2019 report, Dr. Zeiders reviewed and summarized the newly submitted 

medical reports and diagnostic studies. He referenced his prior February 18, 2018 report for a 

history of the October 18, 2011 injury, review of past records, and pertinent examination findings. 

Dr. Zeiders evaluated appellant, provided current findings on physical examination, and reviewed 

the additional medical and diagnostic reports. He reconfirmed his prior opinion that appellant no 
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longer suffered from residuals or disability as a result of the October 18, 2011 work-related injury. 

Dr. Zeiders explained that appellant’s subjective findings were out of proportion to his physical 

examination, which was significantly scattered with regard to positioning, noting that examination 

of the lower extremities and axial spine were inconsistent with his subjective complaints of pain 

and ability to perform the physical movements. He determined that given conflicting findings and 

lack of documentation pertaining to the diagnosis, appellant did not have any type of emergent 

cauda equine. Dr. Zeiders noted that the newly submitted diagnostic studies revealed a relatively 

benign EMG and limited MRI scan findings. He further reported that appellant did not require 

surgery as a result of this injury as his subjective complaints did not match his physical 

examination. Dr. Zeiders concluded that given the changes and variability with the two 

examinations performed, the benign nature of the MRI scan testing from the year before, and the 

relatively benign EMG and limited MRI scan findings from the current diagnostic studies, 

appellant did not have any ongoing spinal condition made permanently worse from his prior injury. 

By decision dated March 14, 2019, OWCP denied modification of the May 24, 2018 

decision, finding that the weight of medical evidence rested with Dr. Zeiders as the second opinion 

examiner.

LEGAL PRECEDENT -- ISSUE 1

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

termination or modification of an employee’s benefits.5 After it has been determined that, an 

employee has a disability causally related to his or her 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

The right to medical benefits for an accepted condition is not limited to the period of 

entitlement for disability compensation.8 To terminate authorization for medical treatment, OWCP 

must establish that appellant no longer has residuals of an employment-related condition which 

require further medical treatment.9

The Federal (FECA) Procedure Manual provides that the findings of an OWCP referral 

physician or impartial medical specialist must be based on the factual underpinnings of the claim, 

 

5 Z.D., Docket No. 19-0662 (issued December 5, 2019); 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).

6 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).

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

8 Z.D., supra note 5; 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).

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

Peake, id.
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as set forth in the SOAF.10 When OWCP’s referral physician or impartial medical specialist does 

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

opinion is diminished or negated altogether.11

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 May 27, 2018.

OWCP accepted that appellant sustained degeneration of lumbosacral intervertebral disc 

and left lumbar sprain of back as a result of his October 18, 2011 employment injury. By decision 

dated May 24, 2018, it terminated his wage-loss compensation and medical benefits effective 

May 27, 2018, based on the opinion of Dr. Zeiders, the second opinion examiner, who concluded 

in a February 19, 2018 report that appellant’s accepted work-related conditions had resolved and 

he no longer suffered from residuals or disability as a result of the October 18, 2011 employment 

injury. 

The Board finds that Dr. Zeiders’ opinion was not well rationalized and failed to carry the 

weight of the medical evidence.12 In his February 18, 2018 report, Dr. Zeiders provided a 

conflicting history of injury. He indicated that appellant had no ongoing spinal conditions, which 

were permanently worsened from the lifting event due to his convoluted history, confusing 

subjective complaints, and physical examination findings. Dr. Zeiders failed to explain how 

appellant’s history was convoluted as he sought treatment and underwent diagnostic testing 

immediately following the October 18, 2011 employment incident, which OWCP accepted for 

degeneration of lumbosacral intervertebral disc and sprain of back, left lumbar region. 

Furthermore, his opinion does not carry the weight of the medical evidence that appellant’s workrelated conditions and disability had resolved as the physician provided no specific discussion to 

the accepted work-related conditions, only generally noting that appellant had no residual disabling 

component to his previously treated work injury.

13

 This discrepancy casts doubt on Dr. Zeiders’

understanding of the facts of appellant’s claim.14 His opinion that he could return to full-duty work 

was conclusory without sufficient medical rationale to support his findings.15 Given Dr. Zeiders’

failure to acknowledge the accepted employment conditions, his opinion is, therefore, of 

 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.1

(September 2009).

11 Id. at Chapter 3.600.3(10) (October 1990).

12 M.R., Docket No. 17-0634 (issued July 24, 2018).

13 J.S., Docket No. 18-0513 (issued March 1, 2019); K.J., Docket No. 14-1874 (issued February 26, 2015); J.J., 

Docket No. 11-1958 (issued June 27, 2012).

14 S.R., Docket No. 19-1229 (issued May 15, 2020).

15 Id.
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diminished probative value regarding OWCP’s termination of his wage-loss compensation and 

medical benefits.16 

The Board therefore finds that OWCP has not met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits, effective May 27, 2018, as the medical 

evidence of record is insufficient to establish that he no longer had residuals or disability causally 

related to his accepted degeneration of lumbar or lumbosacral intervertebral disc and sprain of 

back, left lumbar region.17

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective May 27, 2018.18

 

ORDER

IT IS HEREBY ORDERED THAT the March 14, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: March 16, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 P.E., Docket No. 19-0837 (issued October 20, 2020). 

17 L.B., Docket No. 20-0692 (issued November 20, 2020).

18 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.