United States Department of Labor

Employees’ Compensation Appeals Board

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S.V., Appellant

and

DEPARTMENT OF THE ARMY, RESEARCH 

DEVELOPMENT & ENGINEERING 

COMMAND, Fort Mammoth, NJ, Employer

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Docket No. 23-0474

Issued: August 1, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 17, 2023 appellant filed a timely appeal from an October 19, 2022 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.

ISSUE

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

compensation and medical benefits, effective October 19, 2022, as he no longer had disability or 

residuals causally related to his accepted May 28, 1975 employment injury.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board on a different issue.

2

 The facts and 

circumstances of the case as set forth in the Board’s prior decision are incorporated herein by 

reference. The relevant facts are as follows.

On May 28, 1975 appellant, then a 24-year-old mason helper, filed a traumatic injury claim

(Form CA-1) alleging that on that date he sustained injury to his lower back, right hip, and leg 

when rodding a concrete sidewalk while in the performance of duty. He stopped work on that date 

and returned to light-duty work on June 2, 1975. OWCP accepted the claim for lumbosacral strain.

It paid appellant compensation on the periodic rolls.3 

In a March 16, 2020 report, Dr. Nasser Ani, a Board-certified orthopedic surgeon and 

treating physician, diagnosed sprain of the lumbar spine and pelvis; lumbar intervertebral disc 

displacement, lumbar intervertebral disc degeneration, and sacroiliitis. He opined that appellant 

was totally and permanently disabled from work. 

On September 23, 2021 OWCP referred appellant, along with the medical record and a 

statement of accepted facts (SOAF) to Dr. Frank J. Corrigan, aBoard-certified orthopedic surgeon, 

for a second opinion to determine the status of appellant’s accepted condition and his work 

restrictions. 

In an October 21, 2021 report, Dr. Corrigan noted appellant’s history of injury and medical 

treatment. He examined appellant and opined that appellant’s work-related condition of 

lumbosacral strain had resolved. Dr. Corrigan explained that appellant’s current symptoms and 

examination findings were not caused by the work injury and were the consequence of the 

cumulative effect of degenerative changes over the 46 years since the May 28, 1975 work injury. 

He opined that appellant had no disability relating to the employment injury. However, if appellant 

was still in work status, rather than retired, he would be limited to light-duty work. 

On November 26, 2021 OWCP requested clarification from Dr. Corrigan. In a 

December 28, 2021 supplemental report, Dr. Corrigan explained that appellant’s subjective 

complaints corresponded with the objective findings, however, they were a consequence of the 

cumulative effect of degenerative change over the prior 46 years. He opined that the work-related 

condition of lumbosacral strain had resolved, and the prognosis was good for continued stable 

function of the lumbosacral joint ligament. Dr. Corrigan explained that a sprain of the lumbosacral 

spine would take somewhere between 6 to 12 weeks to resolve and noted that it has now been 

approximately 46 years. He further noted that causality of the current symptoms could not be 

established, therefore, no further treatment was reasonable and medically appropriate for the 

accepted injury. Dr. Corrigan advised that work restrictions were not warranted related to the 

2 Docket No. 20-0906 (issued February 11, 2021). 

3 On March 29, 1979 OWCP reduced appellant’s wage-loss compensation based upon his ability to perform the 

duties of a constructed position of clerical sorter. 
3

employment injury. He indicated that appellant had retired; however, if appellant was still 

working, he would be limited to light-duty status. 

On January 20, 2022 OWCP expanded the acceptance of the claim to include bilateral 

lumbar radiculopathy. 

On January 21, 2022 OWCP requested thatDr. Corrigan clarify his opinion based upon the 

updated accepted condition of bilateral lumbar radiculopathy. In a February 8, 2022 addendum 

report, Dr. Corrigan noted the additional accepted condition of bilateral lumbar radiculopathy. He

indicated that his conclusions as stated in his prior reports remained unchanged. Dr. Corrigan 

explained that appellant’s physical examination revealed no objective medical evidence of lumbar 

radiculopathy. 

By letter dated February 10, 2022, OWCP requested that Dr. Ani review Dr. Corrigan’s 

findings. In a March 3, 2022 report, Dr. Ani disagreed with Dr. Corrigan’s opinion that appellant’s 

work-related conditions had resolved. He opined that appellant’swork-related diagnoses remained 

active and continued to cause symptoms. Dr. Ani noted that, due to appellant’s age and condition, 

appellant was unfit to perform his prior duties as a mason helper. 

On March 30, 2022 OWCP determined that a conflict of medical opinion existed between

Dr. Ani and Dr. Corrigan as to whether appellant’s work-related conditions had resolved.

On April 8, 2022 OWCP referred appellant for an impartial medical evaluation with

Dr. David Weiss, a Board-certified orthopedist, serving as an impartial medical examiner (IME).

It provided Dr. Weiss with a SOAF, the medical record, and a series of questions. 

In a June 8, 2022 report, Dr. Weiss reviewed appellant’s history of injury and medical 

treatment. He related extensive physical examination findings and diagnosed chronic lumbosacral 

strain and sprain, age-related progressive degenerative disc disease and osteoarthritis of the lumbar 

spine, and lumbar radiculopathy. Dr. Weiss opined that appellant’s current conditions were not 

related to the work injury of May 28, 1975, and explained that appellant had progressive agerelated degenerative disc disease and osteoarthritis which he could not relate at this time to his 

initial work-related injury of May 28, 1975. He advised that, based on appellant’s current 

symptomatology and ongoing pathology, he agreed with Dr. Corrigan that appellant’s workrelated conditions had resolved and no further treatment was medically warranted. 

In a notice dated July 12, 2022, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits, as he no longer had disability or residuals causally related to 

his accepted May 28, 1975 employment injury. It found that the special weight of the medical 

evidence rested with the IME, Dr. Weiss. OWCP afforded appellant 30 days to submit additional 

evidence or argument in writing if he disagreed with the proposed termination. 

In an August 2, 2022 statement, appellant noted his history of injury and treatment and 

provided copies of documents from the employing establishment dated August 4 and 

November 2, 1977. 

By letters to Dr. Weiss dated August 12 and September 12, 2022, OWCP noted that one of 

appellant’s treating physicians previously diagnosed a low-grade herniated nucleus pulposus at 
4

L4-5 on the right side and opined that it was caused by the work-related incident on May 28, 1975. 

It requested that Dr. Weiss provide a supplemental report regarding whether the low-grade 

herniated nucleus pulposus at L4-5 on the right side was caused or aggravated by the May 28, 1975

work-related injury, and whether the condition had resolved. OWCP further noted that, if he found 

that the herniated nucleus pulposus L4-5 right side had not resolved and was caused or aggravated 

by the May 28, 1975 work injury, it requested his opinion as to whether appellant’s degenerative 

disc disease and osteoarthritis of the lumbar spine were aggravated by the herniated disc.

In an October 10, 2022 supplemental report, Dr. Weiss responded to OWCP’s questions 

and explained that a magnetic resonance imaging (MRI) scan performed in 2019 revealed no disc

herniation and only spondylitic or age-related changes. He further explained that the sensory loss

he found on the left side would not be related to a right-side L4-5 condition. 

By decision dated October 19, 2022, OWCP finalized the notice of proposed termination 

of appellant’s wage-loss compensation and medical benefits, effective that date. It found that the 

special weight of medical evidence rested with the IME, Dr. Weiss, who indicated in June 8 and

October 10, 2022 reports, that appellant no longer had disability or residuals due to his May 28, 

1975 employment 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.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 

the employment.5 Its 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 to disability.7 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.8

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

making the examination for the United States and the physician of an employee, the Secretary shall 

4

See P.B., Docket No. 21-0894 (issued February8, 2023); D.G., Docket No. 19-1259 (issued January 29, 2020);

R.P., Docket No. 17-1133 (issued January 18, 2018);S.F., 59 ECAB 642 (2008); KellyY. Simpson, 57 ECAB 197 

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

5

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989);Charles E. Minnis, 40 ECAB 708 (1989);VivienL. 

Minor, 37 ECAB 541 (1986).

6 K.W., Docket No. 19-1224 (issued November 15, 2019);see M.C., Docket No. 18-1374 (issued April23, 2019);

Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

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

8 L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).
5

appoint a third physician (known as a referee physician or IME) who shall make an examination. 9 

For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and 

rationale.10 When OWCP has referred the case 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.11

ANALYSIS

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective October 19, 2022, as he no longer had disability or 

residuals causally related to his accepted May 28, 1975 employment injury.

OWCP determined that there was a conflict in the medical opinion evidence between

Dr. Ani, appellant’s treating physician, and Dr. Corrigan, OWCP’s second opinion examiner, as 

to appellant’s disability status and need for medical treatment causally related to the May 28, 1975 

employment injury. It properly referred appellant, pursuant to 5 U.S.C. § 8123(a), to Dr. Weiss 

for an impartial medical examination and an opinion to resolve the conflict.

In a June 8, 2022 report, Dr. Weiss, serving as the IME, reviewed appellant’s history of 

injury, provided physical examination findings, and opined that appellant’s current condition was 

progressive age-related degenerative disc disease and osteoarthritis, which was not related to the 

May 28,1975 employment injury. He concurred with Dr. Corrigan that appellant’s work-related

conditions had resolved, and no further treatment was medically warranted.

In an August 12, 2022 letter to Dr. Weiss, OWCP noted that one of appellant’s treating 

physicians previously found a low-grade herniated nucleus pulposus on the right side at L4-5, and 

requested that the IME provide a supplemental report as to whether it had resolved and whether it 

caused or aggravated appellant’s degenerative conditions. In an October 10, 2022 supplemental 

report, Dr. Weiss noted that the 2019 MRI scan revealed no disc herniation and only spondylitic 

or age-related changes, and further explained that the sensory loss he found on the left side would 

not establish a right side L4-5 condition.

The factors that comprise the evaluation of medical opinion evidence include the 

opportunity for and thoroughness of physical examination, the accuracy, or completeness of the 

physician’s knowledge of the facts and medical history, the care of analysis manifested, and the 

medical rationale expressed in support of the physician’s opinion.12

9

5 U.S.C. § 8123(a);see S.A., Docket No. 20-1168 (issued March 29, 2023); R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009).

10 H.B., Docket No. 19-0926 (issued September 10, 2020); C.H., Docket No. 18-1065 (issued November 29, 2018);

Darlene R. Kennedy, 57 ECAB 414, 416 (2006); James P. Roberts, 31 ECAB 1010 (1980).

11 S.S., Docket No. 19-0766 (issued December 13, 2019); W.M., Docket No. 18-0957 (issued October 15, 2018);

Gloria J. Godfrey, 52 ECAB 486 (2001); James P. Roberts, id.

12 See P.J., Docket No. 22-0905 (issued November 15, 2022);K.R., Docket No. 22-0019 (issued July 11, 2022);

Nicolette R. Kelstrom, 54 ECAB 570 (2003); Anna M. Delaney, 53 ECAB 384 (2002).
6

The Board finds that the opinion of the IME, Dr. Weiss, is entitled to the special weight of 

the medical opinion evidence and establishes that appellant no longer had employment-related 

disability or residuals causally related to the accepted May 28, 1975 employment injury. 

Dr. Weiss based his opinions on a proper factual and medical history, and extensive physical 

examination findings. He noted that appellant’s physical examination revealed that the accepted 

employment-related conditions had resolved, and that appellant’s disability and work restrictions 

were due to nonemployment-related conditions. Accordingly, OWCP properly relied on

Dr. Weiss’ opinion in terminating appellant’s wage-loss compensation and medical benefits.

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective October 19, 2022, as he no longer had disability or 

residuals causally related to his accepted May 28, 1975 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the October 19, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 1, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board