United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Y.A., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

EAST ORANGE VA MEDICAL CENTER, 

East Orange, NJ, Employer

__________________________________________

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Docket No. 21-0698

Issued: February 3, 2022

Appearances: Case Submitted on the Record

James D. Muirhead, Esq., for the appellant1

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 March 31, 2021 appellant, through counsel, filed a timely appeal from a December 29, 

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.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 December 29, 2020 decision, OWCP received additional evidence. 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

ISSUE

The issue is whether OWCP has met its burden of proof to terminate appellant’s medical 

benefits, effective July 18, 2020, as he no longer had residuals of his accepted employment-related 

conditions.

FACTUAL HISTORY

On September 5, 2015 appellant, then a 53-year-old nurse, filed a traumatic injury claim 

(Form CA-1) alleging on that date that he sustained injuries to his lower back, right side of his 

face, and left knee, as well as a headache, after intervening in a struggle with a patient while in the 

performance of duty. OWCP accepted the claim for left shoulder sprain and lumbar strain. 

Appellant did not stop work and OWCP did not authorize payment of any wage-loss compensation. 

On September 17, 2015 appellant was first seen by Dr. Ningning He, a Board-certified 

anesthesiologist and pain medicine physician, for treatment of his September 5, 2015 employment 

injury. Dr. He noted appellant’s history of injury, symptoms, and physical examination findings. 

He diagnosed lumbar and cervical sprain and strain, lumbar/thoracic radiculitis, lumbar and 

cervical facet syndrome/spondylosis, and shoulder pain. In subsequent reports, Dr. He repeated 

diagnoses of lumbar and cervical sprain and stain, lumbar/thoracic radiculitis, lumbar and cervical 

facet syndrome/spondylosis, and shoulder pain.

On November 16, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions, to Dr. Jeffrey Lakin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine the current status of appellant’s 

accepted conditions.

In a report dated December 6, 2018, Dr. Lakin reviewed appellant’s history of injury, the 

SOAF, and the medical record and set forth negative examination findings. He opined that the 

accepted left shoulder and lumbar sprains had resolved. Dr. Lakin reported excellent left shoulder 

and lumbar spine motion and strength and excellent lower extremity strength. As there are no 

active objective findings of a lumbar or left shoulder sprain, he explained that these conditions had 

resolved without residuals or disability. Dr. Lakin also noted that appellant had no additional 

conditions causally related to the accepted employment injury.

On April 10, 2019 OWCP found a conflict in the medical opinion evidence between

Dr. Lakin, the second opinion physician, andDr. He, a treating physician, as to whether appellant’s 

current diagnosed conditions were causally related to the accepted employment injury, and 

whether the accepted conditions had resolved. It referred appellant, together with a SOAF, medical 

record, and list of questions to Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve 

the conflict.4

In a May 9, 2019 report, Dr. Carlson discussed appellant’s history of injury and his current 

complaints of neck, back, and left shoulder pain, and noted his review of the medical record and 

SOAF. He set forth findings based upon appellant’s physical examination and opined that

appellant had no residuals of his accepted September 5, 2005 employment injury. On examination,

4 The case record contains an MEO23 appointment schedule notification dated April5, 2019, which indicates that

Dr. Carlson was selected as the impartial medical examiner (IME).
3

Dr. Carlson found no cervical tenderness or palpable muscle spasm, no lumbar palpable muscle 

spasm, L4-5 diffuse tenderness on palpation, diffuse left shoulder tenderness over the de ltoid 

muscle, and negative Neer and Hawkins signs. Regarding appellant’s lumbar condition,

Dr. Carlson related that appellant’s L2-4 disc bulges on magnetic resonance imaging (MRI) scan

were not pathological, and the L4-5 herniated disc had no corresponding L5 nerve root signs or 

symptoms. Regarding appellant’s left shoulder, he indicated that there was no clinical step off to 

indicate an acromioclavicular (AC) separation. The post-traumatic AC arthrosis seen on MRI scan 

would be due to a more remote injury, since there were degenerative changes of the AC joint on 

the film during the initial examination. Dr. Carlson also reviewed appellant’s cervical x-rays, 

which he found showed normal spacing and alignment. He related that appellant’s voluntary 

restriction of cervical spine movement on physical examination did not indicate pathology as he 

had no spasm or splinting of his cervical muscles. Dr. Carlson diagnosed resolved lumbar, 

cervical, and shoulder strains. He concluded that he agreed with Dr. Lakin’s opinion and disagreed 

with the opinion of Dr. He. 

Dr. He, in a progress notes dated June 10, 2019, diagnosed lumbar sprain and strain, 

lumbar/thoracic radiculitis, lumbar facet syndrome, cervical sprain and strain, cervical radiculitis, 

cervical facet syndrome/spondylosis, and shoulder pain. 

On December 19, 2019 OWCP issued a notice in which it proposed to terminate appellant’s 

wage-loss compensation and medical benefits because his September 15, 2015 work-related injury 

had resolved without residuals or disability. It found that the special weight of medical evidence 

rested with the May 9, 2019 medical report of Dr. Carlson, who found that appellant no longer had 

any residuals causally related to his accepted lumbosacral and left shoulder strains. Based on

Dr. Carlson’s diagnosis of a resolved cervical strain, OWCP expanded the acceptance of the claim 

to include this condition. It afforded appellant 30 days to submit additional evidence or argument, 

in writing, if he disagreed with the proposed notice of termination.

In a letter dated February 27, 2020, appellant, through counsel, objected to the proposed 

notice of termination. Counsel asserted that Dr. Carlson had been improperly selected to resolve 

the conflict in the medical opinion evidence as the record contained no evidence of any bypass 

sheets.

By decision dated July 17, 2020, OWCP finalized the notice of proposed termination of 

appellant’s wage-loss compensation and medical benefits, effective July 18, 2020. It found that 

the special weight of medical evidence rested with the opinion of Dr. Carlson, the IME, who 

concluded in his May 9, 2019 report that appellant had no disability or residuals due to his accepted 

September 5, 2015 work-related injury. OWCP also found that the referee selection process was 

proper as Dr. Carlson was the first physician selected by the medical management application 

(MMA) system. 

On August 3, 2020 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review, which was held on October 14, 2020. 

By decision dated December 29, 2020, the hearing representative modified the July 17, 

2020 decision to find that only entitlement to medical treatment was terminated. 
4

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.5

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

entitlement for disability.6 To terminate authorization for medical treatment, OWCP must 

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

require further medical treatment.7

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the 

physician making the examination for the United States and the physician of the employ ee, the 

Secretary shall appoint a third physician who shall make an examination.”

8

 In situations 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 the conflict, the opinion of such specialist, if sufficiently 

well rationalized and based upon a proper factual background, must be given special weight. 9

ANALYSIS

The Board finds that OWCP met its burden of proof to terminate appellant’s medical 

benefits, effective July 18, 2020, as he no longer had residuals of his accepted employment-related 

conditions.

OWCP properly determined that a conflict in medical opinion evidence arose between

Dr. He, appellant’s treating physician, and Dr. Lakin, an OWCP referral physician, regarding

whether the accepted left shoulder and lumbar conditions had resolved. It referred him to

Dr. Carlson for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a).

The Board finds that the special weight of the evidence is represented by the thorough and 

well-rationalized opinion of Dr. Carlson, the IME selected to resolve the conflict in medical 

opinion.10 In a May 9, 2019 report, Dr. Carlson discussed appellant’s complaints of neck, back,

and left shoulder pain, reviewed his history of injury, and analyzed the medical evidence of record. 

He found no cervical tenderness or palpable muscle spasm, no lumbar palpable muscle spasm, 

L4-5 diffuse tenderness on palpation, diffuse left shoulder tenderness over the deltoid muscle, and

negative Neer and Hawkins signs. Dr. Carlson noted that appellant’s left shoulder and cervical 

5 R.V., Docket No. 20-00005 (issued December 8, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 

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

6 R.V., id.; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued 

February27, 2019).

7 R.V., id.; L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued 

February5, 2019).

8

5 U.S.C. § 8123(a).

9 D.G., supra note 5; D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. 

Roberts, 31 ECAB 1010 (1980).

10 M.L., Docket No. 20-1682 (issued June24, 2021); R.P., Docket No. 19-0057 (issued May 16, 2019); R.H., 59 

ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).
5

x-rays revealed normal findings. He opined that appellant’s cervical, lumbar, and left shoulder 

strains had resolved based on the lack of objective findings on examination. Dr. Carlson provided 

a thorough factual and medical history and accurately summarized the relevant medical evidence.11 

He provided rationale for his opinion by explaining that appellant’s findings on examination were

within normal limits and that the diagnostic studies showed no abnormalities, causally related to 

the accepted injury. Dr. Carlson’s opinion, thus, represents the special weight of the evidence and 

establishes that he had no further residuals causally related to his September 5, 2015 employment 

injury.12

The additional evidence submitted subsequent to Dr. Carlson’s May 9, 2019 report, but 

prior to OWCP’s termination of appellant’s compensation, is insufficient to overcome the special 

weight accorded to Dr. Carlson as the IME.

Appellant submitted June 10, 2019 progress reports from Dr. He, who opined that appellant 

continued to suffer from residuals of the September 5, 2015 employment injury. However, Dr. He 

was on one side of the conflict regarding whether appellant had continued residuals. Reports from 

a physician who was on one side of a medical conflict resolved by an IME are insufficient to 

overcome the special weight accorded to the opinion of the IME.13

The Board, therefore, finds that OWCP properly terminated appellant’s medical benefits, 

effective July 18, 2020, as he no longer had residuals causally related to his accepted September 5, 

2015 employment injury.

On appeal, counsel asserts that the IME selection process was flawed and unexplained, as 

there were no bypass reports of record. He has presented no evidence to support his assertion. 

OWCP addressed this assertion noting that Dr. Carlson was the first physician selected and, thus, 

no bypass sheets were created. It uses the MMA with a strict rotational feature to select an IME.

14

 

The record contains an April 5, 2019 MEO23report. As there is no evidence that OWCP bypassed 

physicians before selectingDr. Carlson as the IME, the Board finds that OWCP provided sufficient 

documentation to establish that it properly utilized its MMA system in selecting Dr. Carlson.

CONCLUSION

The Board finds that OWCP met its burden of proof to terminate appellant’s medical 

benefits, effective July 18, 2020, as he no longer had residuals of his accepted employment-related 

conditions.

11 M.L., id.; M.R., Docket No. 19-0518 (issued September 12, 2019); A.G., Docket No. 19-0113 (issued 

July 12, 2019).

12 M.L., id.; A.M., Docket No. 18-1243 (issued October 7, 2019); J.K., Docket No. 18-1250 (issued June25, 2019).

13 D.G., supra note 5; I.J., 59 ECAB 408 (2008).

14 H.W., Docket No. 14-1319 (issued February 3, 2015); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

OWCP Directed Medical Examinations, Chapter 3.500.5(i) (May2013). “The ME023, Appointment Notification 

Report, can only be generated through the [MMA] and serves as documentary evidence that the appointment was 

scheduled through the use of the rotational system in the [MMA]. The medical scheduler should image a copy of the 

ME023 report into the case file to substantiate that the rotational system was used to select the physician.”
6

ORDER

IT IS HEREBY ORDERED THAT the December 29, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 3, 2022

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