United States Department of Labor

Employees’ Compensation Appeals Board

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A.A., Appellant

and

DEPARTMENT OF THE ARMY, FORT 

HAMILTON, DEPARTMENT OF PUBLIC 

WORKS, Brooklyn, NY, Employer

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Docket No. 21-0222

Issued: November 17, 2021

Appearances: Case Submitted on the Record

James D. Muirhead, 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 December 10, 2020 appellant, through counsel, filed a timely appeal from a June 23, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to 

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 appellant submitted additional evidence on appeal. 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

the 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.

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 9, 2015, as he no longer had disability 

or residuals causally related to the accepted December 9, 2013 employment injury; and (2) whether 

appellant has met his burden of proof to establish continuing disability or residuals causally related 

to his accepted December 9, 2013 employment injury on or after February 9, 2015.

FACTUAL HISTORY

On December 18, 2013 appellant, then a 57-year-old general engineer, filed a traumatic 

injury claim (Form CA-1) alleging that on December 9, 2013 he injured his back, coccyx, head, 

right arm, and right leg when he slipped down a flight of steps while in the performance of duty. 

He stopped work on December 9, 2013. On February 3, 2014 OWCP accepted the claim for 

lumbar sprain, sprain of the right leg and knee, cracked tooth, loss of teeth due to trauma, and 

extraction.

On February 4, 2014 appellant underwent a lumbar magnetic resonance imaging (MRI) 

scan which demonstrated multilevel degenerative disc changes in the lumbar spine, 

spondylolisthesis L2-3 with bilateral facet joint hypertrophic arthropathy and moderate central 

canal stenosis, slight retrolisthesis of L4 with respect to L5, annual bulge L4-5 abutting the right 

L5 nerve root, superimposed left lateral/foraminal disc herniation at L4-5, and mild bulging of the 

annulus at L5-S1.

On April 2, 2014 appellant underwent electromyogram and nerve conduction velocity 

(EMG/NCV) studies which were normal with no evidence of radiculopathy.

In a report dated July 1, 2014, Dr. Dean T. Filion, an osteopath, examined appellant due to 

his December 9, 2013 employment injury and noted that he was “very dramatic” and had difficulty 

with functional mobility. He noted that appellant reported diffuse pain across the low back with 

occasional radiation into his legs, but that his EMG/NCV was unremarkable. Dr. Filion found that 

his neurologic examination revealed patchy diminished sensation which did not follow any 

dermatomal pattern. He also noted that appellant had no obvious weakness in motor strength, but 

reported numbness when performing toe raises. Dr. Filion diagnosed L4-5 herniated disc, lumbar 

degenerative disc disease, lumbar degenerative joint disease, and lumbar stenosis. He found that 

appellant was unable to return to work and referred him for surgical evaluation. Dr. Filion noted 

that he exhibited Waddell signs with low back pain with axial cervical compression and less so 

with truncal twisting which was indicative of a nonorganic pain pattern. He discharged appellant 

from care.

On July 3, 2014 Dr. Stanley Knep, a Board-certified neurologist, noted appellant’s history 

of injury and diagnosed degeneration of the thoracic or thoracolumbar intervertebral disc, 

3

5 U.S.C. § 8101 et seq.
3

degeneration of lumbar or lumbosacral intervertebral disc, and lumbosacral root lesions. He 

reported that appellant was experiencing severe thoracic and lumbar pain with radiation down the 

right leg in the L5 distribution, likely secondary to the herniated disc at L4-5.

In an August 27, 2014 note, Dr. Knep diagnosed lumbosacral root lesion, degeneration of 

thoracic or thoracolumbar intervertebral disc, and headache. He found slight weakness of the L5 

innervated muscles with impaired sensation that correlated to the herniated disc at L4-5.

On August 5, 2014 OWCP referred appellant, a statement of accepted facts (SOAF), and a 

series of questionsto Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for a second opinion 

examination.

In his August 15, 2014 report, Dr. Lakin reviewed the SOAF as well as medical records 

and performed a physical examination. He found that appellant’s motor examination was normal 

in the bilateral upper extremities while his thoracic and lumbosacral spine revealed minimal 

tenderness in the paravertebral midline and musculature. Dr. Lakin reported that sensation was 

decreased in the entire right lower extremity as compared to the left while appellant’s motor 

examination in the lower extremities was normal. He diagnosed lumbosacral sprain and sprain of 

the right leg. Dr. Lakin found that his examination of appellant’s right knee was unremarkable 

and that examination of the lumbosacral spine did not follow any anatomic patterns. He 

determined that appellant had no employment-related disability as there was no correlation of 

subjective and objective complaints. Dr. Lakin noted that EMG/NCV testing of the lower 

extremities was normal. He found that appellant had reached maximum medical improvement

(MMI), no longer required further medical treatment, and could return to his date-of-injury 

position without restrictions.

On September 15, 2014 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits based on Dr. Lakin’s report. It afforded him 30 days to respond in writing if 

he disagreed with the proposed termination.

In a September 4, 2014 report, Dr. Arash Emami, a Board-certified orthopedic surgeon,

noted appellant’s fall on December 9, 2013 that resulted in a lumbar spine injury. On physical 

examination, he found mild paraspinal spasms, sensation grossly intact, and present and equal 

reflexes. Dr. Emami reviewed appellant’s MRI scan and found lumbar disc herniation at L4-5 

with impingement of the L5 nerve root. He recommended a lumbar laminectomy, foraminotomy 

at L4-5 and discectomy at L4-5. Dr. Emami found that appellant was totally disabled from work.

In a letter dated October 27, 2014, appellant, through counsel, objected to the proposed 

termination of wage-loss and medical benefits.

On October 28, 2014 OWCP requested a supplemental report from Dr. Lakin addressing 

whether the acceptance of appellant’s claim should be expanded to include other medical 

conditions and whether the findings on the MRI scan were due to his accepted employment injury.

In a January 28, 2015 report, Dr. Lakin opined that the findings on the MRI scan were 

degenerative age-related changes which preexisted appellant’s accepted employment injury. He 

further noted that appellant’s subjective and objective findings did not correlate based on his 

physical examination. Dr. Lakin found that appellant had no objective signs of radiculopathy on 
4

examination or from EMG/NCV testing which did not correlate with the MRI scan findings. He 

concluded that appellant had no disability from work and there was no need for further medical 

treatment.

By decision dated February 25, 2015, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective February 9, 2015, based on the reports from

Dr. Lakin. On March 4, 2015 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

A hearing was held on October 16, 2015.

In a report and treatment notes dated November 4, 2015, Dr. Ki Soo Hwang, a Boardcertified orthopedic surgeon, noted appellant’s history of falling in the performance of duty. He 

performed a physical examination and diagnosed lumbar spinal stenosis with right lower extremity 

radiculopathy. Dr. Hwang noted that appellant’s lower back pain with radiculopathy began shortly 

after his fall in 2013. He opined that the slip and fall injury was the direct cause of his debilitating 

pain. Dr. Hwang recommended spine surgery.

By decision dated January 28, 2016, OWCP’s hearing representative affirmed the 

February 25, 2015 termination decision and found that appellant had not established continuing 

disability or residuals causally related to his accepted employment injury.

On March 3, 2016 appellant, through counsel, requested reconsideration of the January 28, 

2016 decision. Counsel provided a February 18, 2016 report from Dr. Emami, who reviewed

Dr. Lakin’s reports and disagreed with his conclusions. Dr. Emami opined that, while appellant’s 

MRI scan findings of stenosis and retrolisthesis could be a preexisting condition, the disc 

herniation at L4-5 would be most likely as a result of the work-related accident. He recommended 

spine surgery.

By decision dated May 31, 2016, OWCP denied modification of its prior decisions.

On June 7, 2016 appellant, through counsel, requested reconsideration.

By decision dated June 23, 2020, OWCP denied modification of its prior decisions.

LEGAL PRECEDENT

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

termination or modification of an employee’s benefits.4 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 

4

See R.P., Docket No. 17-1133 (issued January18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.6

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

entitlement for disability compensation.7 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.8 

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 who shall make an examination.9 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.10 In situations where there exist 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. 11

ANALYSIS

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective February 9, 2015.

The evidence of record establishes that, as of February 9, 2015, the date OWCP terminated 

appellant’s wage-loss compensation and medical benefits, there was disagreement between

Dr. Lakin, OWCP’s second opinion physician, and Dr. Emami, appellant’s treating physician, as 

to whether appellant had continuing disability and residuals from his accepted employment injury 

and accepted condition of lumbar sprain.

OWCP relied upon the second opinion findings of Dr. Lakin in determining that appellant 

had no continuing residuals or disability warranting further wage-loss compensation or medical 

benefits. Dr. Lakin noted in his August 15, 2014 and January 28, 2015 reports that appellant had 

no objective signs of radiculopathy on examination or on EMG/NCV testing which did not 

5

S.P., Docket No. 20-0196 (issued June 24, 2020); R.P., id.; JasonC. Armstrong, 40 ECAB 907 (1989); Charles E. 

Minnis, 40 ECAB 708 (1989); VivienL. Minor, 37 ECAB 541 (1986).

6

S.P., id.; M.C., Docket No. 18-1374 (issued April23, 2019); Del K. Rykert, 40 ECAB 284, 295-96(1988).

7 R.P., supra note 4; T.P., 58 ECAB 524 (2007); KathrynE. Demarsh, 56 ECAB 677 (2005); see also A.P.,Docket 

No. 08-1822 (issued August 5, 2009); Furman G. Peake, 41 ECAB 361, 364 (1990).

8

See R.P., supra note 4; James F. Weikel, 54 ECAB 660 (2003); PamelaK. Guesford, 53 ECAB 727 (2002); 

Furman G. Peake, id.

9

5 U.S.C. § 8123(a); see R.P., supranote 4; 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).

10 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

11 See R.P., supra note 4; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
6

correlate with his MRI scan findings. He concluded that appellant had no disability and no need 

for further medical treatment.

On September 4, 2014 Dr. Emami reviewed appellant’s MRI scan and found lumbar disc 

herniation at L4-5 with impingement of the L5 nerve root. He noted positive findings including 

mild paraspinal spasms and recommended a lumbar laminectomy, foraminotomy at L4 -5 and 

discectomy at L4-5 finding that appellant was totally disabled. 

As Dr. Lakin concluded that appellant was able to resume his date of injury position 

without restrictions and Dr. Emami concluded that appellant remained totally disabled for work, 

there is an unresolved conflict in the medical evidence. OWCP should have resolved the conflict

of medical opinion evidence before terminating compensation.12 As it failed to resolve the conflict

of medical opinion evidence, the Board finds that OWCP did not meet its burden of proof to 

terminate appellant’s wage-loss compensation and medical benefits, effective February 9, 2015.

CONCLUSION

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective February 9, 2015.13

12 K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued June 4, 2018).

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

IT IS HEREBY ORDERED THAT the June 23, 2020 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: November 17, 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