United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

U.S. POSTAL SERVICE, TAHLEQUAH POST 

OFFICE, Tahlequah, OK, Employer

__________________________________________

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Docket No. 22-0492

Issued: August 8, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 18, 2022 appellant filed a timely appeal from a December 14, 2021 merit 

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

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the issuance of the December 14, 2021 decision, OWCP received additional 

evidence. However, the Board’s Rules of Procedureprovides: “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 met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits effective December 14, 2021, as she had no further disability

or residuals causally related to her June 17, 2003 employment injury.

FACTUAL HISTORY

This case has previously been before the Board regarding another issue.

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 June 19, 2003 appellant, then a 52-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on June 17, 2003 she strained her right rotator cuff when she was 

involved in a motor vehicle accident while in the performance of duty. On August 12, 2003 OWCP 

accepted the claim for cervical strain. It subsequently expanded the acceptance of the claim to 

include left shoulder contusion and other afflictions of left shoulder region, aggravation of brachial 

neuritis or radiculitis, cervical sprain, sprain of the right shoulder and rotator cuff, and aggravation 

of degenerative cervical intervertebral and lumbar intervertebral disc disease.

OWCP paid appellant wage-loss compensation on the supplemental rolls, effective 

August 4, 2003, and on the periodic rolls, effective August 8, 2004, based on her loss of wageearning capacity.

In a March 5, 2021 progress report, Dr. M. Stephen Wilson, a specialist in orthopedic 

surgery and pain medicine, noted that appellant was seen for follow up and was experiencing 

additional mechanical low back pain. He reviewed her May 30, 2019 magnetic resonance imaging

(MRI) scan and opined that her pain likely was due to facet disease. Dr. Wilson noted that his 

examination of the cervical spine revealed that range of motion (ROM) was mildly restricted in all 

planes; weakness against resistance was demonstrated in the cervical flexors and extensors; 

decreased sensation to monofilament testing was noted over the bilateral C7 through C8

dermatomes; and no radicular symptoms were found. He noted that his examination of the lumbar 

spine revealed ROM was restricted in all planes, especially flexion and extension; decreased 

sensation to monofilament testing was within normal limits; weakness against resistance was

mildly demonstrated in the bilateral L5 through S1 lumbar flexors and extensors, left greater than 

right; straight leg raising test was negative on the right and positive on the left; deep tendon reflexes 

were 2+ and equal bilaterally; and no radicular symptoms were found. Dr. Wilson found positive 

facet loading pain with extension and lateral bending. His examination of the right shoulder 

revealed ROM was restricted in all planes, there was mild tenderness to palpation over the anterior 

subacromial joint, weakness was present in the shoulder with ROM testing, and weakness against 

resistance was demonstrated in all major muscle groups of the right shoulder. Dr. Wilson 

diagnosed sprain of neck; degeneration of cervical intervertebral disc; degeneration of lumbar or 

lumbosacral intervertebral disc and brachial neuritis or radiculitis not otherwise specified;sprain 

of back, lumbar region; other afflictions of shoulder region; contusion of shoulder and upper arm; 

3 Docket No. 21-0485 (issued December 10, 2021).
3

and sprain of shoulder and upper arm, rotator cuff. He noted that appellant was retired and opined 

that she was at maximum medical improvement (MMI).

On March 16, 2021 OWCP referred appellant, together with the case record and a 

statement of accepted facts (SOAF), to Dr. J. Marcus Heim, an osteopath Board-certified in 

orthopedic surgery, for a second opinion examination to determine whether her accepted medical 

conditions had resolved. The SOAF described the employment injury and set forth the accepted 

conditions.

In a May 12, 2021 report, Dr. Heim noted appellant’s history of injury and medical

treatment. He related that appellant had multilevel cervical, thoracic, and lumbar degenerative 

spondyloarthropathy and rheumatoid arthritis. Dr. Heim opined that appellant’s aggravations of 

the accepted conditions had resolved. He determined that appellant’s disabling conditions were 

not due to the work injury and were degenerative, based upon an MRIscan performed three months 

following her injury. Dr. Heim opined that appellant’s medical conditions caused by the 

mechanism of the work injury had resolved. In a May 15, 2021 work capacity evaluation (Form 

OWCP-5c), he indicated that appellant reached MMI and could work full-time light duty with 

restrictions, due to cervical, thoracic and lumbar spondyloarthropathy with rheumatoid arthritis.

On June 30, 2021 OWCP found a conflict in the medical opinion evidence between

Dr. Heim, the second opinion physician, and Dr. Wilson, the treating physician, with regard to 

whether appellant had any continuing residuals or disability causally related to the accepted 

employment injury, and whether the accepted conditions had resolved. It referred appellant, 

together with a SOAF, the medical record, and a list of questions, to Dr. Robert J. Tomlinson, Jr., 

an orthopedic surgeon, to resolve the conflict.4

In an October 7, 2021 report, Dr. Tomlinson related appellant’s history of injury and 

medical treatment. He also noted his review of the SOAF, and he noted appellant’s accepted 

conditions. Dr. Tomlinson opined that appellant no longer had any disability or residuals related 

to the work injury. He explained that “her current symptoms are related to a natural progression 

of her preexisting condition and her current condition of rheumatoid arthritis.” Dr. Tomlinson

further explained that appellant’s MRI studies of her cervical and lumbar spine two months 

following the injury showed chronic changes that were unrelated to her injury. He opined that

appellant’s aggravation of her preexisting nonwork-related medical conditions had resolved and 

that her disability from work was not due to the work injury. In an October 13, 2021 Form OWCP5c, Dr. Tomlinson indicated that appellant could not return to work due to her nonwork-related 

conditions of cervical and lumbar spondylosis, bilateral shoulder replacement, and rheumatoid 

arthritis.

On November 4, 2021 OWCP notified appellant of its proposed termination of her 

compensation and medical benefits, as the weight of the medical evidence established that she no 

longer had any employment-related disability or residuals of her accepted employment injury. It 

4 The case record contains an MEO23 appointment schedule notification dated August 17, 2021, which indicates 

that Dr.Tomlinson was selected as the impartial medical examiner (IME).
4

afforded her 30 days to submit additional evidence or argument, if she disagreed with the proposed 

termination.

No additional evidence was received.

By decision dated December 14, 2021, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective that date. It found that the special weight of the 

medical evidence rested with the opinion of Dr. Tomlinson, the IME, who opined in his October 7, 

2021 report that appellant had no disability or residuals due to her accepted June 17, 2003 work 

injury.

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 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

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

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

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

require further medical treatment.9

Section 8123(a) 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.10 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.11

5 Y.A., Docket No. 21-0698 (issued February 3, 2022); 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

Id.

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

8

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

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

February5, 2019).

10 5 U.S.C. § 8123(a); see R.M., Docket No. 21-1150 (issued April5, 2022); L.T., Docket No. 18-0797 (issued 

March 14, 2019); Shirley L. Steib, 46 ECAB 309 (1994).

11 20 C.F.R. § 10.321.
5

Regarding selection of an IME, OWCP’s procedures provide: “A physician who is not 

Board-certified may be used if he or she has special qualifications for performing the examination, 

but the scheduler must document the reasons for the selection in the case record.”

12

ANALYSIS

The Board finds that OWCP improperly terminated appellant’s wage-loss compensation 

and medical benefits, effective December 14, 2021, based upon the IME’s report from

Dr. Tomlinson.

In this case, Dr. Tomlinson is not identified as being Board-certified. As noted, when a

physician who is not Board-certified is used for an impartial medical examination, the scheduler 

must document the reasons for the selection in the case record. In this case, the record does not 

contain any documentation that Dr. Tomlinson is Board-certified, or to explain the referral of 

appellant to a physician who is not Board-certified. OWCP, therefore, improperly referred 

appellant to Dr. Tomlinson for the resolution of the conflict in the medical evidence.13 As such, 

OWCP has not met its burden of proof.

CONCLUSION

The Board finds that OWCP improperly terminated appellant’s wage-loss compensation 

and medical benefits, effective December 14, 2021.

12 Federal (FECA) Procedure Manual, Part 3 -- Office Directed Medical Examinations, Referee Examinations, 

Chapter 3.500.4b(6)(f) (July 2011).

13 Supra note 10; see Lazarus E. Jackson, 53 ECAB 256 (issued June19, 2001).
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ORDER

IT IS HEREBY ORDERED THAT the December 14, 2021 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: August 8, 2022

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board