United States Department of Labor

Employees’ Compensation Appeals Board

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C.G., SR., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

FEDERAL EMERGENCY MANAGEMENT 

AGENCY, New Orleans, LA, Employer

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Docket No. 20-0808

Issued: April 23, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 2, 2020 appellant, through counsel, filed a timely appeal from a January 31, 

2020 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.

 

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.
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 18, 2019, as he no longer had 

residuals or disability causally related to his accepted September 22, 2008 employment injury; and

(2) whether appellant has met his burden of proof to establish continuing residuals or disability 

causally related to his accepted employment injury on or after August 18, 2019.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On September 22, 2008 appellant, then a 49-year-old temporary database management 

specialist, filed a traumatic injury claim (Form CA-1) alleging that on that date he scraped his right 

knee when he tripped over petition footing. He stopped work that day. OWCP accepted the claim 

for a right leg abrasion or friction burn, and subsequently expanded the acceptance of the claim to 

include a lumbar sprain.4 It paid appellant wage-loss compensation on the supplemental rolls as 

of September 23, 2008 and on the periodic rolls as of March 15, 2009. By decision dated 

January 12, 2010, OWCP finalized the termination of his wage-loss compensation, effective 

February 14, 2010, finding that the weight of the medical and factual evidence established that his 

accepted employment injuries no longer precluded him from performing the duties of his date-ofinjury position. By decision dated June 22, 2010, OWCP’s hearing representative affirmed the 

January 12, 2010 decision, terminating appellant’s wage-loss compensation. On August 5, 2010

appellant, through counsel, appealed to the Board. By decision dated May 13, 2011, the Board 

found that OWCP had not met its burden of proof to terminate appellant’s compensation benefits,

effective February 14, 2010.5

Following the Board’s decision, OWCP paid appellant wage-loss compensation on the 

supplemental rolls from February 14, 2010 through July 2, 2011 and on the periodic rolls beginning 

July 3, 2011. 

Appellant came under the care of Dr. Morteza Shamsnia, a Board-certified neurologist, 

who provided progress reports from April 1, 2010. In a May 17, 2017 progress report,

Dr. Shamsnia related appellant’s continued complaints since 2010 of low back pain and 

paresthesia into the left lower extremity. He reported an impression of lumbosacral and cervical 

radiculopathy, and neuropathy and related that appellant was totally disabled from work.

On August 18, 2017 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), medical record and list of questions, to Dr. Simon Finger, a Board-certified orthopedic 

 

3 Docket No. 10-2039 (issued May 13, 2011).

4 Appellant was terminated from the employing establishment effective September 22, 2008. 

5 Supra note 3.
3

surgeon, for a second opinion examination to determine the current status of appellant’s accepted 

conditions. In a September 19, 2017 report, Dr. Finger noted his review of appellant’s medical 

records and the SOAF, and provided physical examination findings. He diagnosed radiculitis as a 

residual of appellant’s employment injury and noted that the objective findings were consistent 

with radiculitis and nerve conduction velocity studies demonstrated L5-S1 radiculopathies. 

Dr. Finger further opined that the physical examination was inconsistent and, therefore, does not 

provide objective evidence for the claimant’s injury. He opined that appellant’s knee sprain had 

resolved with no residuals and concluded that appellant was capable of working with restrictions 

in a sedentary position.

In a May 2, 2018 report, Dr. Shamsnia diagnosed low back pain, cervical and lumbosacral 

radiculopathies, bilateral tibial neuropathy, left peroneal nerve neuropathy, and periodic limb 

movement disorder. He reported that appellant was seen in a follow-up visit for low back and 

right leg pain, and right lower extremity paresthesia. With regard to the history of the present 

injury, Dr. Shamsnia noted that appellant was status post a work injury wherein appellant sustained 

a low back and knee injury and that he had been involved in an October 2013 motor vehicle 

accident during which his vehicle was rear-ended. He opined that appellant would remain in a nowork status until further notice. 

On January 8, 2019 OWCP determined that a conflict in medical opinion existed between

Dr. Shamsnia, appellant’s treating physician, and Dr. Finger, OWCP’s referral physician, with 

respect to his employment-related conditions and his disability status. It referred appellant to

Dr. Christopher E. Cenac, Sr., a Board-certified orthopedic surgeon, together with a list of 

questions, medical record, and a SOAF, to resolve the conflict in medical opinion evidence.6

On April 15, 2019 OWCP received an August 3, 2019 report from Dr. Shamsnia wherein 

he reiterated his prior findings. Dr. Shamsnia again diagnosed low back pain, cervical and 

lumbosacral radiculopathies, bilateral tibial neuropathy, left peroneal nerve neuropathy, and 

periodic limb movement disorder. He reported that appellant was seen in a follow-up visit for low 

back and right leg pain, and right lower extremity paresthesia. Under history of present injury,

Dr. Shamsnia noted that appellant was status post work injury where he sustained a low back and 

knee injury and in an October 2013 motor vehicle accident. 

OWCP subsequently received a report dated February 14, 2019, wherein Dr. Cenac

described the September 22, 2008 employment injury, noted that appellant was involved in an 

October 2013 nonemployment-related motor vehicle accident. Dr. Cenac also noted that OWCP 

had an accepted lumbar sprain and right knee abrasion. He reviewed appellant’s medical records 

and noted that x-ray interpretations showed bilateral knee symmetrical mild medial joint space loss 

and no evidence of spondylosis or traumatic lumbar injury. Upon physical examination, Dr. Cenac

reported low back discomfort with left straight leg raising while seated, no low back pain with 

right leg testing, no evidence of sciatica, no sensory deficits, normal bilateral knee and ankle 

reflexes, full flexion, but extension was limited by appellant’s obesity, mild right knee crepitation, 

and no tenderness or instability in either knee joint. He diagnosed “lumbar contusion and 

contusion right knee, resolved.” This patient has no evidence of residual to the lumbar spine or 

 

6 The most recent SOAF was dated August 31, 2012 and related that OWCP had accepted the conditions of lumbar 

region sprain and right knee abrasion due to the accepted September 22, 2008 employment injury. 
4

right knee” due to the accepted September 22, 2008 employment injury. Regarding appellant’s 

disability status, Dr. Cenac related that appellant had no work restrictions due to the accepted 

September 22, 2008 employment injury and, more probably than not, that appellant could return 

to his date-of-injury position.

By notices dated May 8 and 21, 2019, OWCP advised appellant that it proposed to 

terminate his wage-loss compensation and medical benefits based on Dr. Cenac’s February 14, 

2019 impartial medical opinion that the accepted conditions had ceased without residuals. It 

afforded him 30 days to submit additional evidence or argument challenging the proposed action. 

By decision dated August 2, 2019, OWCP finalized the proposed notices of termination of 

appellant’s wage-loss compensation and medical benefits, effective August 18, 2019. It found that

Dr. Cenac’s February 14, 2019 impartial medical report represented the special weight of the 

medical evidence and established that appellant no longer had any disability or residuals due to his 

accepted work-related conditions.

On August 20, 2019 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review. 

OWCP subsequently received an August 6, 2019 attending physician’s report (Form CA20), wherein Dr. Shamsnia diagnosed low back pain, lumbosacral radiculopathy, bilateral 

posterior tibial neuropathy, and left peroneal nerve neuropathy. Dr. Cenac indicated by check 

mark “Yes” that appellant’s condition was caused or aggravated by appellant’s accepted 

employment injury and that his conditions were permanent in nature. 

Appellant also submitted reports dated August 3 and November 6, 2018, and May 14, 

August 8, and November 5, 2019 from Dr. Shamsnia, reiterating the diagnoses and findings from 

his prior reports. 

A hearing was held on December 11, 2019.

By decision dated January 31, 2020, OWCP’s hearing representative affirmed the 

August 2, 2019 termination decision. 

LEGAL PRECEDENT -- ISSUE 1

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

modification or termination of an employee’s benefits.7 It may not terminate compensation 

without establishing that the disability ceased or that it was no longer related to the employment 

 

7

J.T., Docket No. 19-1723 (issued August 24, 2020); S.P., Docket No. 19-0196 (issued June 24, 2020); S.F., 59 

ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

injury.8 OWCP’s burden of proof in terminating compensation includes the necessity of furnishing 

rationalized medical opinion evidence based on a proper factual and medical background.9

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

entitlement to compensation for disability.10 To terminate authorization for medical treatment, 

OWCP must establish that the employee no longer has residuals of an employment-related 

condition that require further medical treatment.11

Section 8123(a) of FECA12 provides that, if there is disagreement between the physician 

making the examination for OWCP and the employee’s physician, the Secretary shall appoint a 

third physician, known as a referee physician or impartial medical examiner (IME), who shall 

make an examination.13 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.14 

Where there exist opposing medical reports of virtually equal weight and rationale and the case is 

referred to an IME for the purpose of resolving conflict, the opinion of such specialist, if 

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.15

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 18, 2019.

Appellant’s attending physician, Dr. Shamsnia, opined that appellant was totally disabled 

from work and had ongoing residuals. OWCP referred appellant for a second opinion with

Dr. Finger who opined that appellant had no residuals of his employment injury and could perform 

sedentary work duties. Due to the conflict between Dr. Shamsnia and Dr. Finger, it properly 

 

8 See S.P., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); 

Charles E. Minnis, 40 ECAB 708 (1989).

9 S.P., supra note 7; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-

96 (1988).

10 S.P., supra note 7; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued 

February 27, 2019).

11 D.G., Docket No. 19-1259 (issued January 29, 2020); L.S., Docket No. 19-0959 (issued September 24, 2019); 

R.P., Docket No. 18-0900 (issued February 5, 2019).

12 Supra note 2 at § 8123(a) 

13 Id.; L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

14 20 C.F.R. § 10.321.

15 D.G., supra note 11; D.W., Docket No. 18-0123 (issued October 4, 2018); Gloria J. Godfrey, 52 ECAB 486 

(2001); Gary R. Sieber, 46 ECAB 215, 225 (1994).
6

referred appellant for an impartial medical examination with Dr. Cenac to resolve the conflict in 

the medical opinion evidence, pursuant to 5 U.S.C. § 8123(a).

In a February 14, 2019 report, Dr. Cenac noted that he had reviewed the SOAF and the 

medical record and opined that appellant had no residuals of the accepted September 22, 2008 

employment condition, that appellant had no work restrictions, and more probably than not could 

return to the date-of-injury position. He concluded that appellant had resolved right knee contusion 

and lumbar contusion. Based on this report, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective August 18, 2019.

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

the medical evidence accorded an IME as it is not based on an accurate factual background. 

Dr. Cenac acknowledged that the SOAF provided by OWCP indicated that it had accepted 

appellant’s September 22, 2018 traumatic injury claim for right leg abrasion and lumbar sprain. 

However, he did not follow that acceptance in rendering his medical opinion. Instead, Dr. Cenac 

related that appellant had resolved “right knee and lumbar contusions.” 

The Board has long held that the report of an IME who disregards a critical element of the 

SOAF is defective and insufficient to resolve the existing conflict of medical opinion evidence.16 

The Board finds that Dr. Cenac’s report is, therefore, not entitled to the special weight as an IME 

and is insufficient to meet OWCP’s burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits. 

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 18, 2019.17

 

16 See W.F., Docket No. 18-0653 (issued September 26, 2019); B.B., Docket No. 18-1121 (issued January 8, 2019);

V.C., Docket No. 14-1912 (issued September 22, 2015).

17 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
7

ORDER

IT IS HEREBY ORDERED THAT the January 31, 2020 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: April 23, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board