United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.P., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION, 

Anchorage, AK, Employer

__________________________________________

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Docket No. 23-0075

Issued: May 26, 2023

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 21, 2022 appellant, through counsel, filed a timely appeal from a 

September 19, 2022 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 to consider 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 December 13, 2019, as he no longer had 

disability or residuals causally related to his accepted employment injury; and (2) whether 

appellant has met his burden of proof to establish continuing disability or residuals on or after 

December 13, 2019 causally related to his accepted employment injury.

FACTUAL HISTORY

This case has previously been before the Board on different issues.

3

 The facts and 

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

reference. The relevant facts are as follows.

On November 6, 2002 appellant, then a 57-year-old supervisory personnel management 

specialist, filed an occupational disease claim (Form CA-2) alleging that he developed coronary 

heart disease as a result of stress causally related to factors of his federal employment.4 He noted 

that he first became aware of his conditions on February 5, 2001. Following the initial denial of 

the claim by decision dated October 31, 2003 and subsequent further development of the evidence, 

OWCP, by decision dated May 24, 2007, accepted the claim for post-traumatic stress disorder 

(PTSD). It found that appellant had established a compensable factor of employment that his 

division experienced a 50 percent reduction in staff as a result of agency downsizing in 1992, and 

that in 1998 he was promoted to a GS-14 position which consolidated a number of programs and 

responsibilities.5 The record reflects that appellant initially received wage-loss compensation on 

the supplemental rolls, and on the periodic rolls from May 29, 2016. 

On March 17, 2017 OWCP referred appellant, along with a statement of accepted facts 

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

psychiatrist, for a second opinion evaluation to determine the nature and extent of his accepted 

employment-related condition and disability from work.

In an April 14, 2017 medical report, Dr. Ashby opined that appellant continued to suffer 

residuals of his accepted PTSD and that he was unable to perform his prior job due to its excessive 

requirements. He advised, however, that appellant could work full time with restrictions. In an 

accompanying work capacity evaluation (Form OWCP-5a) dated April 14, 2017, Dr. Ashby 

reiterated his opinion on appellant’s work capacity.

3 Docket No. 12-1596 (issued March 27, 2013); Docket No. 14-0987 (issued September 10, 2015).

4 A notification of personnel action (Standard Form 50) indicated that appellant retired from the employing 

establishment, effective January 31, 2002. On December 13, 2003 appellant returned to a temporary position at the 

employing establishment following an Equal Employment Opportunity settlement agreement. Upon termination of 

the temporary assignment on December 12, 2005, he voluntarily retired from the employing establishment.

5 OWCP did not accept that any actions by appellant’s former supervisor were compensable factors of employment. 
3

By letter dated May 16, 2017, OWCP requested that Dr. Ashby review an official 

description of appellant’s supervisory personnel management specialist position and clarify his 

opinion on appellant’s work capacity and employment-related residuals.

In an addendum report dated May 19, 2017, Dr. Ashby reviewed the description of

appellant’s supervisory personnel management specialist position and opined that he could 

perform the duties of that position so long as he did not work with his prior supervisor.

OWCP subsequently received a June 27, 2017 report by Dr. Eric Garby, an attending 

psychiatrist. Dr. Garby diagnosed the accepted condition of PTSD. He also diagnosed recurrent 

severe major depressive disorder. Dr. Garby advised that appellant could initially return to parttime work in a low stress environment and incrementally increase his work hours as tolerated over 

a period of weeks. In a June 27, 2017 Form OWCP-5a, he restated his opinion regarding 

appellant’s work capacity.

On July 27, 2017 OWCP determined that a conflict in medical opinion existed between

Dr. Ashby, OWCP’s second opinion physician, and Dr. Garby, appellant’s treating physician, 

regarding the extent and degree of appellant’s accepted condition and work capacity.

On August 29, 2019 OWCP referred appellant to Dr. Douglas P. Robinson, a Boardcertified psychiatrist, for an impartial medical examination to resolve the conflict in medical 

opinion.

In a report dated October 3, 2019, Dr. Robinson provided his review of the medical record

and noted a history of the accepted employment injury. He reported essentially normal findings 

on psychiatric and mental status examination with the exception that there was obvious distress

and more animation when appellant discussed difficulties in his employment. Dr. Robinson

diagnosed major depressive disorder, resolved; the accepted condition of PTSD, resolved; and 

history of alcohol use disorder. He advised that the accepted condition of PTSD fully resolved 

after appellant left work. Dr. Robinson explained that appellant no longer met the diagnostic 

criteria for PTSD. He further explained that the panic attacks appellant experienced during the 

latter phase of his employment and his current panic attacks were not work related. Dr. Robinson 

maintained that panic attacks simply happen and are not triggered by environmental circumstances. 

He noted that attributions about panic attacks, as in this case, where appellant believed them to be 

caused by the stress from his work or supervisor, should be regarded as illogical or superstitious 

explanations. Dr. Robinson observed that it was difficult for appellant to walk back from his 

convictions and consider alternative causes or explanations to his panic attacks. Thus, he 

maintained that convictions play a role in what appellant is willing to do or what he expects will 

occur when he approaches certain activities. Dr. Robinson advised that no limitations were 

necessary as a result of panic disorder. He also advised that appellant could give or receive

supervision, cooperate with coworkers or others, work under deadlines, and interact with

supervisors. Dr. Robinson indicated, however, that appellant could experience problems if he 

worked with his former supervisor, as he still felt anger towards his supervisor and did not accept 

the finding that she had not acted improperly towards him. He concluded that appellant could 

perform his date-of-injury supervisory personnel management specialist position based on his 
4

review of a description of that position. In a September 20, 2019 Form OWCP-5a report,

Dr. Robinson reiterated his opinion regarding appellant’s work capacity and work restriction.

By notice dated October 15, 2019, OWCP advised appellant that it proposed to terminate 

his wage-loss compensation and medical benefits based on Dr. Robinson’s impartial medical 

opinion that the accepted condition had ceased without residuals or disability. It afforded him 30 

days to submit additional evidence or argument challenging the proposed action. No response was 

received.

OWCP, by decision dated December 13, 2019, terminated appellant’s wage-loss 

compensation and medical benefits, effective that date. It found that Dr. Robinson’s opinion as 

the IME represented the special weight of the evidence and established that appellant had no 

further disability or residuals due to his accepted employment injury.

On September 17, 2020 appellant, through counsel, requested reconsideration. In support 

of the request, counsel submitted a June 3, 2020 report from Dr. Jo Ann Agress, Ph.D., a licensed 

clinical psychologist. Dr. Agress noted appellant’s history of injury and medical treatment. She 

reported her psychological examination findings. Based on responses to the Minnesota 

Multiphasic Inventory-2 (MMPI-2), Dr. Agress diagnosed recurrent moderate major depressive 

disorder, panic attacks without agoraphobia, the accepted condition of chronic PTSD, and alcohol 

abuse disorder. She noted that in contrast to Dr. Robinson’s opinion that appellant’s depression 

and PTSD conditions had resolved, and that appellant could return to full-time work with the 

restriction of not working with his former supervisor, her current assessment findings indicated 

that he had significant symptoms of major depression and anxiety. Dr. Agress noted, however, 

that while he did not appear to suffer from acute symptoms of the accepted condition of PTSD, his 

MMPI-2 test results indicated that his work exposure continued to have an impact which 

represented the cognitive and emotional sequelae of PTSD. She recommended further 

neuropsychological testing to determine appellant’s capacity to perform his previous job duties

based on Montreal Cognitive Assessment (MOCA)findings of specific weakness in mental control 

and working memory, and his expressed concerns about memory, concentration, and decisionmaking ability. Dr. Agress also recommended a trial of Eye Movement Desensitization and 

Preprocessing (EDMR) therapy for the treatment of his accepted PTSD condition and additional 

condition of alcohol abuse.

By letter dated December 9, 2020, appellant, through counsel, submitted a March 25, 2020 

MMPI-2 evaluation performed by Dr. James N. Butcher, Ph.D. Dr. Butcher reported that 

appellant appeared to suffer from a depressive disorder, and maybe from a diagnosis of dysthymic

disorder or major affective disorder. He also noted that there was a possibility of a thought disorder 

or paranoid thinking thatshould be evaluated. Dr. Butcher observed that appellant’s scores on the 

content scales indicated that his acknowledged tendency toward experiencing a depressed mood 

should be taken into consideration in any diagnostic formulation. Appellant had several

personality characteristics that were associated with a substance use or abuse disorder. In his 

responses to the MMPI-2, he acknowledged some problems with excessive use or abuse of 

addictive substances. Dr. Butcher noted that appellant’s scores on the addiction proneness 

indicators, along with personality characteristics reflected in his profile, suggested that he 

resembled some individuals who develop addictive disorders. He related that a substance abuse 
5

evaluation should explore this possibility through a careful review of his personality traits and 

typical behaviors.

OWCP, by decision dated December 16, 2020, denied modification of the December 13, 

2019 termination decision. It found that the medical evidence submitted was insufficient to 

establish that appellant had continuing residuals or disability due to his accepted employment 

injury. 

On May 27, 2021 counsel, on behalf of appellant, requested reconsideration and submitted 

a February 15, 2021 letter from Dr. Agress. Dr. Agress reiterated her examination findings and 

MMPI-2 test results set forth in her June 30, 2020 report. She also noted appellant’s continuing 

symptoms of his accepted PTSD condition, which included experiencing intrusive negative 

thoughts and emotions associated with his traumatic experience, avoidance of people and

situations that evoked those thoughts and feelings, and having a heightened level of arousal and 

reactivity in the face of stress. Dr. Agress discussed how these symptoms closely respond to longterm sequelae associated with the accepted condition of PTSD and although they were less severe 

and occurred less frequently than in the past, they continued to create significant distress and

impairment in appellant’s functioning. She noted that appellant had highly significant elevations 

on two clinical scales from his MMPI-2 test and that it was highly likely that his traumatic on-thejob experiences played a substantial role in shaping his perception of the world as hostile and 

ungiving, intensified his feelings of insecurity and self-doubt, and increased his sensitivity to

criticism and rejection. Dr. Agress further noted that he had two heart attacks while he worked 

under his former supervisor which intensified the threat that he perceived from her and created a 

mental association between the two.

By decision dated August 25, 2021, OWCP denied modification of the December 16, 2020

decision, finding that Dr. Agress’ February 15, 2021 letter was insufficient to establish that 

appellant had employment-related disability or residuals. It explained that Dr. Agress attributed 

appellant’s emotional condition to the actions of his former supervisor, but that it had not accepted 

such actions as compensable employment factors. 

On June 21, 2022 appellant, through counsel, requested reconsideration and submitted a 

January 26, 2022 report by Dr. Agress who reiterated her prior opinion that appellant had

symptomatology of his accepted condition of PTSD that continued to have an impact on his mood 

and psychological function based on his clinical findings and the MMPI-2 psychological test 

results.

By decision dated September 19, 2022, OWCP denied modification of the August 25, 2021 

decision.
6

LEGAL PRECEDENT -- ISSUE 1

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

termination or modification of an employee’s benefits.6 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.7 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.8

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

entitlement for disability.9 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.10

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 employee, the 

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

11

 In situations where 

there exist opposing medical 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.12

ANALYSIS -- ISSUE 1

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

compensation and medical benefits, effective December 13, 2019, as he no longer had disability 

or residuals causally related to his accepted employment injury.

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

between Dr. Garby, appellant’s treating physician, and Dr. Ashby, an OWCP second opinion 

6

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

7

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

Minor, 37 ECAB 541 (1986).

8 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).

9

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

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

11 5 U.S.C. § 8123(a).

12 C.M., Docket No. 20-1647 (issued October 5, 2021); D.M., Docket No. 18-0746 (issued November 26, 2018);

R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 1010 (1980).
7

physician, as to whether appellant continued to have disability or residuals causally related to the 

accepted employment injury. In order to resolve the conflict, it properly referred appellant, 

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

opinion on the issue.13

In his October 3, 2019 report, Dr. Robinson opined that the accepted work-related 

condition of PTSD had resolved, and that appellant could return to his former supervisory 

personnel management specialist position on a full-time basis. He explained that his physical 

examination revealed no objective findings of the accepted condition, and that appellant no longer 

met the diagnostic criteria for PTSD. Dr. Robinson further explained that appellant’s prior panic 

attacks at work and his current panic attacks were not employment related, noting that panic attacks 

simply happen and are not triggered by environmental circumstances. He maintained that

appellant’s belief that panic attacks were caused by stress from his work or supervisor was illogical 

or a superstitious explanation. Dr. Robinson further maintained that since it was difficult for 

appellant to attribute his panic attacks to alternative causes or explanations, his convictions played 

a role in his expectations for certain activities. Thus, he attributed appellant’s restriction of not 

working with his former supervisor to his belief regarding the cause of his panic attacks. 

Additionally, Dr. Robinson noted that his opinion on appellant’s work capacity was also based on

his review of appellant’s position description.

The Board finds thatDr. Robinson’s opinion is entitled to the special weight of the medical 

evidence accorded an IME because he based this opinion on a proper factual background, a review 

of the medical record, and physical examination, and he provided a well-rationalized opinion that 

appellant had no further disability or residuals causally related to his accepted employment 

injury.14 Accordingly, OWCP met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits, effective December 13, 2019. 

LEGAL PRECEDENT -- ISSUE 2

Once OWCP properly terminates a claimant’s compensation benefits, the burden shifts to 

appellant to establish continuing disability or residuals after that date causally related to the 

accepted injury.15 To establish causal relationship between the condition as well as any attendant 

disability claimed and the employment injury, an employee must submit rationalized medical 

evidence based on a complete medical and factual background, supporting such causal 

relationship.16 A claimant must establish by the weight of the reliable, probative, and substantial 

13 Id.

14 See supra note 12.

15 See V.W., Docket No. 19-0645 (issued February 22, 2021);D.G., supra note 6;S.M., Docket No. 18-0673 (issued 

January 25, 2019); J.R., Docket No. 17-1352 (issued August 13, 2018); George Servetas, 43 ECAB 424, 430 (1992).

16 See O.W.,Docket No. 20-1343(issued August16, 2022);L.S.,Docket No., 20-0570 (issued December 15, 2020);

James Mack, 43 ECAB 321 (1991).
8

evidence that he or she had an employment-related disability which continued after termination of 

compensation benefits.17

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to establish continuing 

disability or residuals on or after December 13, 2019 causally related to his accepted employment 

injury.

Following the termination of his wage-loss compensation and medical benefits, effective 

December 13, 2019, appellant submitted reports dated June 3, 2020 through January 26, 2022 from

Dr. Agress. Dr. Agress diagnosed the accepted condition of chronic PTSD. She also diagnosed 

recurrent moderate major depressive disorder, panic attacks without agoraphobia, and alcohol 

abuse disorder based on appellant’s responses to the MMPI-2. Dr. Agress opined that appellant 

did not appear to suffer from acute symptoms of the accepted condition of PTSD, but related that

his MMPI-2 test results indicated that his work exposure continued to have an impact which 

represented the cognitive and emotional sequelae of PTSD. The Board finds that Dr. Agress’

opinion is speculative and does not provide conclusive evidence of continuing residuals. The

Board has held that medical opinions, which are equivocal or speculative are of diminished 

probative value.18 Thus, this evidence is insufficient to establish appellant’s burden of proof.

Appellant also submitted Dr. Butcher’s March 25, 2020 report. The Board notes initially 

that Dr. Butcher did not diagnose PTSD. Additionally, the Board finds that Dr. Butcher’s opinion 

is speculative. Dr. Butcher opined that appellant appeared to suffer from a depressive disorder and 

maybe from a diagnosis of dysthymic disorder or major affective disorder. He also noted that 

there was a possibility of a thought disorder or paranoid thinking that should be evaluated. Thus, 

this evidence is insufficient to establish appellant’s burden of proof. 

As appellant has not submitted rationalized medical evidence establishing that he had 

continuing employment-related disability on or after December 13, 2019 causally related to his 

accepted employment condition, he has not met his burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

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

compensation and medical benefits, effective December 13, 2019, as he no longer had disability 

or residuals causally related to his accepted employment injury. The Board further finds that 

17 J.N., Docket No. 20-1030 (issued November 20, 2020); S.F., Docket No. 17-1427 (issued May 16, 2018).

18 M.D., Docket No. 21-0080 (issued August16, 2022); R.B.,Docket No. 19-0204 (issued September 6, 2019);see 

N.B., Docket No. 19-0221 (issued July 15, 2019).
9

appellant has not met his burden of proof to establish continuing disability or residuals on or after 

December 13, 2019 causally related to his accepted employment injury.

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: May 26, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board